MARICO LIMITED Vs. J.K. ENTERPRISES

JUDGEMENT

(1.) The original claim that the then plaintiffs carried to court was that the first defendant was passing off its coconut oil sold in pouches as that of the plaintiffs. The original plaintiffs were Hindusthan Lever Limited and one of its subsidiaries. During the pendency of the action, the original plaintiffs assigned their rights in respect of the relevant marks in favour of the present plaintiff for valuable consideration. The original plaintiffs obtained an ex parte ad-interim order on GA No. 1823 of 2004. Such order was reversed in appeal on June 11, 2004 on the ground that no reasons had been assigned in support of the order. GA No. 1823 of 2004 is the first of the two applications under consideration now.

(2.) According to the petition in GA No. 1823 of 2004, the plaintiff sold and marketed coconut oil both of the edible quality and for application as hair oil in packages where the word mark "Nihar" was the leading feature. The plaintiff's pouches were light green in colour with "Nihar" written in white in capital letters at the top of the pouch on its front side. There was a drawing prominently displayed in the middle of the front side with the sketch of two coconut trees against a bright backdrop which, presumably, implied the sun. There was a full coconut shown next to the coconut trees with another broken, half coconut to its right. Each letter of the word "Nihar" had a black outline and the letter "i" had a flourish of two leafs immediately above it. On the top left of the front of the pouch there was an inverted triangle announcing that it was an economy pack with a spherical blob of red towards the lower end of the inverted triangle indicating the price of Rs. 10/-. Below the central picture on the front side of the pouch the words "coconut oil" were written in black print in capital letters. The complaint in the earlier petition was that in the first defendant's use of a similar green coloured pouch for coconut oil, the essential features of the plaintiff's package had been substantially reproduced. The first defendant's pouch prominently bears the name "Nihal", also in white capital letters with a black outline of each letter. There is different form of flourish above the letter "i" of Nihal but one has to compare the two packets to tell the difference. Below "Nihal", the word "Uttam" written in yellow and smaller size appears on the first defendant's pouch just above the words "coconut oil" in black capital letters. Towards the bottom middle on the front side of the first defendant's pouch, there is a circular patch of yellow depicted with a dark yellowish centre, presumably signifying the sun. There are two well-defined coconut trees which appear against the backdrop of the yellow and orange band. The front side of the first defendant's pouch carries an announcement on the top left corner within a ribbon-like figure in yellow that it is a pouch pack. There is a triangle announcing the price of Rs. 10/-. The words "pouch pack" and the "price" are written in red.

(3.) Sometime in early 2006, the original plaintiffs transferred their rights in respect of the "Nihar" marks in favour of the present plaintiff. The present plaintiff has substantial presence in the market and is the owner of several valuable marks including the Parachute brand of hair oil. The present plaintiff applied for amendment of the plaint consequent upon the assignment of the marks in its favour. Such amendment was allowed. In 2008 the word mark "Nihar" was registered in favour of Hindusthan Lever Limited in class 3. The present plaintiff applied for recording its name as the owner of the mark in the register. Another word mark registration in respect of "Nihar" in class 42 was granted in favour of Hindusthan Lever Limited and the present plaintiff has applied for its name to be recorded in the register against such mark.