LEO FOOD Vs. NUTRINE CONFECTIONERY CO. (P) LTD.

JUDGEMENT

(1.) THIS is an application for the rectification of the register under section 50 of the Copyright Act, 1957 in respect of artistic work bearing registration number A -53770/97 dated 13.3.1997. According to the submissions of the petitioner, the petitioner and the respondent are in business of manufacturing and sale of, inter alia, wafers, biscuits, chocolates and other confectionary products. The petitioner has his mark as LEGO MEGA LACTO. Lego is his coined mark, Mega is indicative of bigger quantity of the product and Lacto being milk is descriptive of the content of product. Respondent filed a suit, being suit No. O.S. 113 of 2002, against the petitioner for passing off action under the Trade Marks Act and for infringement of respondent's artistic work bearing registration number A -53770/97 dated 13.3.1997. Year of publication claimed in that registration is 1994. The petitioner has challenged the originality of the artistic work MAHA LACTO of the respondent in the impugned registration for the following reasons, namely: -

(2.) RESPONDENT along with his submissions in the counter statement dated 18.7.2006 had filed a petition of the same date for condonation of delay of 35 days in filing the counter statement. Prayer for condonation was allowed and the matter was accordingly heard.

(3.) RESPONDENT in its counter statement has submitted that originally MAHA LACTO wrapper was devised in 1990 and accordingly registration therefor bearing number 52299/93 was obtained. Subsequently in 1994, it made slight modifications and thus created another original artistic wrapper and obtained the registration bearing number A -53770/97 therefor. Respondent filed suit O.S. No. 113 of 2002 against the petitioner herein in the court of the Hon'ble District Judge at Ranga Reddy. Respondent, besides giving the parawise comments upon the petition, has generally denied the allegations of the petitioner. Respondent has submitted that the petitioner has been deliberately avoiding as to when from the petitioner has adopted the infringing wrapper MEGA LACTO which is identical to that of the respondent's wrapper MAHA LACTO. The house mark LEGO which is contended by the petitioner as to be of theirs is in fact a well known mark registered internationally by Inter Lego A.G. Corporation, Switzerland and Lego products are one among the top Ten of the world's best selling Toys. The petitioner who is silent about the date of commencement of use of the infringing mark MEGA LACTO in any case is only subsequent to the honest adoption and bona fide use of the respondent. The wrapper applied for registration under the Trade Marks Act under application number 51009 by Parrys Confectionery Ltd. is totally different in get up and style from that of the respondent. There is no violation of any provisions of the Act much less section 45(2) of the Copyright Act as alleged by the petitioner. The pending application for registration of any trade mark filed by any other third party would not make it illegal for the respondent to acquire the rights in respect of the artistic work in the trade label MAHA LACTO.