MARS INCORPORATED Vs. AKABAY INDUSTRIES

JUDGEMENT

(1.) THE Order of the Court was as follows : THE applicant/plaintiff filed this application to grant interim injunction restraining the respondents and their men from manufacturing, selling, distributing or offering for sale milk shake machines, ice slush machines, ice cream machines bearing the mark GALAXY or any mark similar thereto to pass off and enable others to pass off the respondents milk shake, ice slush, ice cream machines as and for the applicant's product by use of the trade mark GALAXY pending disposal of the suit.

(2.) THE case in brief is as follows : THE Power of Attorney of the applicant Mars, Incorporated, a corporation organised and existing under the laws of the State of Delaware, United States of America. THE applicant is a world leader in branded snack foods, petcare products, main meal foods, electronic payment systems and drinks vending. THE applicant employs approximately 30, 000 persons with manufacturing facilities in more than 30 countries, including commonwealth countries. THE applicant is the proprietor of the trade mark GALAXY in respect of chocolates in 1960 and extended its use to ice creams in 1990. Besides GALAXY, some of the world's renowned confectionery brands of the applicant are Mars, Snickers, M & M's, Twix and Milky Way. THE applicant is an internationally renowned manufacturer and merchant 'of various types of foodstuff including non-medicated confectionery, chocolates, ice creams, etc.

(3.) THE balance of convenience is also in favour of the applicant. Hence, the application.Respondents 1 to 3 filed separate counter-affidavits. THEy denied the various averments. THE applicant is not doing any business in India. THEre is also no establishment for the applicant and hence, there is no business activity. THE deponent to the affidavit in support of the application has no competency to file this application or suit. THE Deed empowering appointment of attorney is not proper. THE first respondent is a Small Scale Industry and has closed down their unit with effect from 1-9-1999. THE trade mark GALAXY admittedly is not related to the goods of the applicant. Further, the word GALAXY is not a name. THE registration of the said trade mark is restricted and confined to non-medicated confectionery under Clause 30. THE first respondent never dealt with any non-medicated goods but only machines.