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The Court stated that Defendants 1,8, 9 and 10 are engaged in illegal activities, which are potentially criminal in nature, and are aimed at deceiving unwary consumers by making them pay through their website under the false pretence of securing reservations with the plaintiff’s ‘GINGER’ hotels.
Despite Respondent 1’s endeavour to create distinctions, it is crystal clear that the marks are confusingly/deceptively similar to the petitioner’s registered trade mark. Such use of a similar mark would invariably mislead consumers and members into believing that the goods under the impugned mark were sourced from the petitioner.
The Court stated that the mala fide intent of Defendants 7 and 8, is evident from their infringing activity of selling counterfeit products bearing the plaintiff’s trade mark with the sole objective of capitalizing on the immense goodwill and brand image enjoyed by the plaintiff.
The infringing materials found on the site of the defendant are counterfeit goods of the plaintiff’s products, affixed with the plaintiff’s registered marks. A clear indicative of the counterfeiting activity towards the plaintiff’s products, are the observations and photographs as attached by the Local Commissioner in its report.
Upon careful comparison of the plaintiff’s trade dress and that of the defendants, it became apparent that the overall colour scheme, get-up and layout of the defendants’ impugned packaging is nearly identical to that of the plaintiff’s trade dress.
The Court held that Moonshine had demonstrated a prima facie case for a grant of injunction, the refusal of which would cause an irreparable loss to it.
Considering the widespread promotional and advertisement activities undertaken by the plaintiff, it is apparent that the trade mark ‘PETER ENGLAND’ has become the single source identifier of the plaintiff and its goods and services.
The plaintiffs submitted that the confusingly similar trade mark in the field of pharmaceuticals, create greater injury as compared to products and services in other fields.
The Court restrained all premises of Being FS Pacific Hospitality Pvt. Ltd. including ‘Birch by Romeo Lane’ from playing or using the sound recordings of Novex Communications Pvt. Ltd.
Wipro Enterprises Pvt. Ltd. had registered its well-known trade mark “WIPRO” and its formative trade marks in various classes under the Trade Marks Act, 1999.
Allegedly, the entire premise of the advertisement campaign by Alpino Health Foods was to denigrate oats as a category of food, including Marico’s ‘Saffola Oats’.
It was said that if no ex-parte ad-interim injunction is granted, Mankind Pharma would suffer an irreparable loss.
Plaintiffs submitted that being the ex-franchisee, Defendant 1 was clearly aware of the ownership and notoriety of the ‘MOTI MAHAL’, ‘MOTI MAHAL DELUX TANDOORI TRAIL’, ‘TANDOORI TRAIL’ and their formative marks as well as the goodwill and reputation enjoyed by the plaintiffs related to the said trade marks.
It is submitted that Plaintiff 1 is a ‘celebrity’ and has a valid and enforceable personality right. He satisfies the dual test of personality rights, viz. having a valid and enforceable personality right on account of being a well-known reputed personality and the same is clearly identifiable in the infringing content uploaded by Defendants 1-8 and 13 on their social media accounts.
The remarks mentioned in the Copyright Registration Certificate is that the artistic work shall not be used in relation to any goods or services and the copyright in artistic work should not subsist if the work was applied to an industrial process and reproduced more than fifty times.
No plausible explanation was provided by the defendants as to why the trade mark ‘AMUL’ was adopted. No written statement was filed on behalf of the defendants. The conduct of the defendants highlighted their mala fide and dishonesty in adopting the same mark, as that of the plaintiffs’.
The trade mark ‘MONSTER’ had been adopted by Monster Energy Co. in 2002 in the United States of America.
The plaintiffs submitted that Defendant 1 is dishonestly using an identical and deceptively similar trade mark as that of the plaintiffs’, so that any ordinary consumer would be misled to believe that Defendant 1’s products are that of the plaintiffs or associated with or emanating from the plaintiffs.
The Court stated that the defendants shall continue their business of pre-owned goods of the plaintiff. However, the defendants shall conspicuously display on their website that the goods sold by them, are certified pre-owned goods of the plaintiff.
Section 47 of the Trade Marks Act, 1999 provides for taking a registered trade mark off the Register on account of non-use of the trade mark.