TaxTMI 
TaxTMI 
2008 (5) TMI 701
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....der Section 109 of the Trade and Merchandise Marks Act, 1958 arising out of an order dated 12th May, 1979 by respondent No. 3 was dismissed. 3. Appellant is a company incorporated under the Companies Act, 1956. It manufactures whisky under the mark 'Peter Scot'. Manufacture of the said product allegedly was started by the company in May, 1968. An application was filed by it for registration of its mark before the respondent No. 3. Appellant was informed that its application was accepted and allowed to proceed with the advertisement, subject to the condition that the mark would be treated as associated with Reg. T.M. No. 249226-B. 4. A proceeding was initiated as regards registration of the trade mark. No opposition was filed by the respondent. Only one M/s. Mohan Meakins filed an opposition. The said trade mark was registered. 5. Respondent Nos. 1 and 2 came to know of the appellant's mark on or about 20th September, 1974. They filed an application for rectification of the said trade mark on 21st April, 1986. We may also notice that a suit for passing off has also been filed by the 1st respondent and others in the Bombay High Court being C.S. No. 1729 of 1987, ....
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....ent at some details. It was held that the mark has been used deceptively for long time and, although there is also unexplainable and inexcusable delay on the part of the respondents in filing the rectification application, the registered proprietors failed to file any evidence nor did they raise their little finger to rebut the evidence filed by the applicants/respondents. The plea of acquiescence/delay raised by the appellant was negatived on the ground that the plea of deceptive element in the impugned mark having neither been displaced nor rebutted by evidence on the part of the registered proprietors, the pleas of delay and acquiescence cannot be allowed in favour of the registered proprietors. 11. On the affidavit evidence filed on behalf of the respondents, respondent No. 3, although opined, that the same was not satisfactory but held the respondents' plea that the impugned registration contravenes Section 11 of the Act, stating: Nonetheless, the evidence gives an impression that some customers are being persuaded into thinking that PETER SCOT brand Whisky is also a Scotch Whisky. This is on account of the presence of two factors, namely - (1) the presence of ....
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....ty of the affidavits it was held: The criticism leveled against the deponents of some of the affidavits filed by the respondents as evidence though justified to some extent does not help the appellant to avoid rectification. The statutory standard is not the actual confusion and deception but likelihood thereof. The term 'Scot' when used in association with whisky of non- Scottish origin is inherently capable of and is likely to cause confusion and deception. 16. Feeling aggrieved, an intra court appeal was preferred thereagainst by the appellant. A Division Bench of the High Court, as noticed hereinbefore, dismissed the said appeal. The Division Bench noticed at some length the submissions made by the parties to inter alia hold: We have carefully considered the abovesaid submissions made by the counsel on either side. In our considered view, the use of the device 'Lion Rampant' and the abovesaid description especially the description 'Distilled from the Finest Malt and Blended with the Choicest Whiskeys by Scotch Experts under Government Supervision' is definitely intended to lead the consumers to believe that the whiskey manufactured b....
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....far it failed to take into consideration the aforementioned arguments of the appellant, although categorically noticed by it, so far as if the label is to be looked by in its entirety, the emblem of Rampant Lion with the words 'Distilled from the Finest Malt and Blended with the Choicest Whiskies by Scotch Experts under Government Supervision' must be read with the word 'PRIDE OF INDIA' and the names of the appellant and the fact that it was manufactured at Bangalore. 6. The Division Bench of the High Court committed a serious error in so far as it failed to take into consideration that having regard to the provisions contained in Section 26 of the Geographical Indication of the Goods Act, 1999 (for short 'the 1999 Act'), the rights of trade marks which had been acquired through use in good faith were protected and thereby committed a serious error in not allowing the appellant to raise the said contention, on the premise that the same was being raised for the first time before it. Mr. Ashok H. Desai, learned Senior Counsel appearing on behalf of the respondent Nos. 1 and 2, on the other hand submitted :- (i) The findings of fact a....
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....tively similar to another mark if it so nearly resembles that other mark as to be likely to deceive or cause confusion; 11 - Prohibition of registration of certain marks--'A mark' (a) the use of which would be likely to deceive or cause confusion; or (b) the use of which would be contrary to any law for the time being in force; or (c) which comprises or contains scandalous or obscene matter; or (d) which comprises or contains any matter likely to hurt the religious susceptibilities of any class or section of the citizens of India; or (e) which would otherwise be disentitled to protection in a court, shall not be registered as a trade mark. 27 - No action for infringement of unregistered trade mark.- (1) ... (2) Nothing in this Act shall be deemed to affect rights of action against any person for passing off goods as the goods of another person or the remedies in respect thereof. 56 - Power to cancel or vary registration and to rectify the register. - (1) On application made in the prescribed manner to a High Court or to the Registrar by any person aggrieved, the tribunal may m....
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.... of the High Court. (5) Where an appeal is heard by a single Judge, a further appeal shall lie to a Bench of the High Court. (6) The High Court in disposing of an appeal under this section shall have the power to make any order which the Registrar could make under this Act. (7) In an appeal by an applicant for registration against a decision of the Registrar under Section 17 or Section 18 or Section 21, it shall not be open, save with the express permission of the court, to the Registrar or any party opposing the appeal to advance grounds other than those recorded in the said decision or advanced by the party in the proceedings before the Registrar, as the case may be, and where any such additional grounds are advanced, the applicant for registration may, on giving notice in the prescribed manner, withdraw his application without being liable to pay the costs of the Registrar or the parties opposing his application. (8) Subject to the provisions of this Act and of the rules made thereunder, the provisions of the Code of civil procedure, 1908 (5 of 1908), shall apply to appeals before a High Court under this Act 20. Although a large number of i....
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....d. The principal question which arises for consideration is as to whether the term 'Scot' would itself be a sufficient ground to opine that the mark 'Peter Scot' is deceptive or confusing. Indisputably the onus of proof would be open the respondents. The question arises is as to whether they have discharged the same or not. RE: ISSUE No. 1 26. Ian Barclay is admittedly the in-house Solicitor of the respondents. They have not only been filing actions against several persons infringing the said mark in India but also in several other countries like Australia and United Sates of America. Ian Barclay in his affidavit stated: The first applicant received notice of the advertisement of the said mark PETER SCOT in the Trade Mark Journal when it received a routine report from 'Wildbore and Gibbons dated 20th September, 1974. Regrettably, the first Applicant did not lodge opposition with the time allowed. 27. Respondents, therefore, were well aware that the appellant had filed an application for registration. One of the questions which was raised before respondent No. 3 as also before the High Court was as to whether Article 137 of the Limitation Act....
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....ion for the remedy but where the delay is more than this period, it will almost always be proper for the court to hold that it is unreasonable. The period of limitation prescribed for recovery of money paid by mistake under the Limitation Act is three years from the date when the mistake is known. If the mistake was known in these cases on or shortly after January 17, 1956 the delay in making these applications should be considered unreasonable. If, on the other hand, as Mr Andley seems to argue, that the mistake discovered much later this would be a controversial fact which cannot conveniently be decided in proceedings. In either view of the matter we are of opinion the orders for refund made by the High Court in these seven cases cannot be sustained.' 29. We are unable to accept this submission. What would be the reasonable period in a given case would not depend upon the nature of action initiated before a statutory authority but also upon the purport and object of the statute. If the reliefs sought for before the superior courts are the same which could be sought for in a suit, the period of limitation specified for in the Limitation Act may be taken to be the criteria f....
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....ne or the other essential particulars therein and upon consideration of the objections which may be raised therein, the registration of mark may be allowed. Sections 10 to 14 provide for prohibitions. The prohibitory provisions, therefore, are required to be taken into consideration for the purpose of registration of the mark. The question as to whether the use of a mark would likely to deceive or cause confusion so as to disable the Registrar from registering the mark as a trade mark would be necessary to be considered only in the course of the enquiry conducted therefore. A Registrar of Trade Mark is not supposed to know that there exist other marks which are registered or which would deceive or cause confusion with any other established mark. In a given case, the Registrar of Trade Mark may be aware thereof. But, in some cases, he may not be. It may, therefore, not be correct to contend that Section 11 of the Act prohibits the Registrar for registration of marks which would likely to deceive or cause confusion. 36. Indisputably, the purity of the Registrar is to maintain the register. Indisputably again, the public interest has to be kept in view. An application for registrat....
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....ypes of cases, public interest should remain uppermost in the mind of the authority. The question which is required to be posed therefore would be as to whether the public in general or the class of bias would be deceived or be confused if the existing mark is allowed to remain on the register. Thus, deceptively similar or confusion is the principal criteria for determining applications both for registration as also for rectification. 42. We have noticed hereinbefore that it is not the case of the respondents that any fraud was practised by the appellant. 43. Appellant started manufacturing of the product as far back as in the year 1968. It marketed two brand names, viz., Peter Scot and Red Knight. It is said to have been done for making the name attractive. It was a period when there were restrictions on import of Whisky. The custom duty was high. The price of a genuine Scotch Whisky was prohibitive for a large section of the consumers. Appellant applied for registration in the year 1971. 44. Ian Glen Barclay affirmed an affidavit in support of the respondents. He, in his affidavit which otherwise remained uncontroverted, admitted that the respondents were aware of regist....
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....Chief) - 12. Dyer Meakin Breweries Ltd. (now known as Mohan Meakin Breweries Ltd.) v. The Scotch Whisky Association - 17(1980)DLT466 (DB) 13. SWA and Anr. v. Rheea Distillers (Scotch Terrier) -(The Court of Addl. civil Judge, Sr. Division - Margao, Goa). 14. William Grant & Sons Ltd. v. McDowell & Co. Ltd. (Glenfiddich Case) 55(1994)DLT80 15. Srilab Breweries Pvt. Ltd. v. Scotch Whisky Association (Rare Blend) WA and Anr. v. Forbes Camphell & Co. Ltd. (Glen Forbes, Blended with the finest Scotch) - (Bombay High Court) 16. SWA and Anr. v. Pravara Sahakar Shakar Karkhana LTD AIR1992Bom294 . (Drum Beater, Gold Tycoon) (Bombay High Court) 17. SWA and Anr. v. Scottish Distilleries and Ors. (Macqueen and Black Kilt) (Bombay High Court) 18. SWA v. Silver Oak Blenders and Bottlers Private Ltd. and Anr. (Windsor Club) (Bombay High Court). 19. SWA v. Maharashtra Manufacturing Corporation and Ors. (Black Skipper, White Scot & Salute India) (Delhi High Court) Decisions of Foreign Courts: 20. SWA v. Societed Importation e de Distribution des Grandes Marques (Judgment dated 23rd January, 1992 of the Commercial Co....
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....HIGHLAND CHIEF' were pending in the Indian Courts at the relevant time. The 1st Applicant succeeded in these proceedings before the Delhi Court in 1971 but thereafter the matter was taken to the Division Bench of the Delhi High Court where the 1st Applicant also succeeded. However, the matter was thereafter taken to the Supreme Court. The 1st Applicant did not appreciate, that it would take so long to obtain a final judgment. The Judgment from the Supreme Court would be binding on all tribunals in India. At issue in the said Appeal was registration of words, or devices or marks or labels or descriptions evocative of Scotland for use on Indian Whisky. In this connection I crave leave to refer to and rely upon the judgment of the Delhi High Court (see Exhibit X-4). I say that the Appeal to the Supreme Court from the same judgment had not yet been decided. 44. I say that the 1st Applicant, having failed to lodge opposition to the 'Peter Scot' application within the prescribed period, was awaiting the decision of the Supreme Court before adopting proceedings against the registered proprietor for rectification of the mark PETER SCOT. However, in recent years, the 1s....
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....ch more force is that the appellants have come to file this application under Section 46 after considerable delay and no relief should be granted to them. It is true that the granting of relief under Section 46 is a discretionary relief, but it is equally true that the Legislature has not laid down any period of limitation for making an application under Section 49. Kerly at p. 271 states: "The delay of the applicant in coming to the Court to ask for rectification of the register is not of itself any bar to his application, and the marks have been removed or varied after being registered for long periods to the knowledge of the applicant...." But at p. 264 the learned author points out that the demerits of the applicant in any such case are irrelevant to the question whether rectification should be ordered or not, for the question is not between the applicant on the one hand and the respondent on the other, but between public and the respondent. But the learned author further points cut at p. 272 that where the objection alleged to a mark is that it to the same as that of the applicant, or that it has such resemblance to his as to be calculated to deceive, it will be some evidence ....
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....t show, first, that HBZ have been acting under a mistake as to their legal rights. That, in the instant case, must mean that they were unaware that what they were doing (that is to say, carrying on their business under the name in which they had been incorporated with the active assistance of the plaintiffs' predecessors), constituted any invasion of the plaintiffs' rights. Secondly, they must show that the plaintiffs encouraged that course of action, either by statements or conduct. Thirdly, they must show that they have acted upon the plaintiffs' representation or encouragement to their detriment. 60. Noticing various other decisions, Oliver, L.J., noticing a decision in Taylor Fashions Ltd. v. Liverpool Victoria Trustees Co. Ltd. (Note) [1981] 2 W.L.R. 576 opined: Furthermore the more recent cases indicate, in my judgment, that the application of the Ramsden v. Dyson, L.R. 1 H.L. 129 principle-whether you call it proprietary estoppel, estoppel by acquiescence or estoppel by encouragement is really immaterial-requires a very much broader approach which is directed rather at ascertaining whether, in particular individual circumstances, it would be unconscio....
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....tion again came up for consideration before this Court in Ramdev Food Products (P) Ltd. v. Arvindbhai Rambhai Patel and Ors. 2006(33)PTC281(SC) wherein it was held: 103. Acquiescence is a facet of delay. The principle of acquiescence would apply where: (i) sitting by or allowing another to invade the rights and spending money on it; (ii) it is a course of conduct inconsistent with the claim for exclusive rights for trade mark, trade name, etc. 64. The delay by itself, however, may not be necessarily a ground for refusing to issue injunction. It was opined: 106. The defence of acquiescence, thus, would be satisfied when the plaintiff assents to or lays by in relation to the acts of another person and in view of that assent or laying by and consequent acts it would be unjust in all the circumstances to grant the specific relief. It was furthermore observed: 108. Specific knowledge on the part of the plaintiff and prejudice suffered by the defendant is also a relevant factor. (See Spry on Equitable Remedies, 4th Edn., p. 433.) 65. In Halsbury's Laws of England, Fourth Edition, Vol. 16, para 1505, it is stated: Where a person has by word....
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.... has been able to establish his business by using the infringing mark. Inordinate delay or laches may be there because the plaintiff may not be aware of the infringement by the defendant or the plaintiff may consider such infringement by the defendant as not being serious enough to hurt the plaintiff's business. Nevertheless, if the Court comes to the conclusion that prejudice is likely to be caused to the general public who may be mislead into buying the goods manufactured by the defendant thinking them to be the goods of the plaintiff then an injunction must be issued. The Court may, in appropriate cases, allow some time to the defendants to sell off their existing stock but an injunction should not be denied. 69. In Mc Donald's Corporation and Anr. v. Sterling's Mac Fast Food Represented by its Partner John Mathew ILR2007KAR3346 , the Karnataka High Court held: 9. Though the plaintiff adopted its registered trade mark BIG MAC in 1968 in USA, in paragraph 7 of memorandum of appeal it is stated as under: 7. The first appellant is the proprietor in India of other McFamily trade marks having prefix or suffix Mc/MAC and it has also applied for registr....
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....till the date of filing of the second suit, it was held that the presence in the register of a mark was a continuous wrong. However, it is not necessary to delve deep into the matter any further as we have held heretobefore that the provisions of the Limitation Act, 1963 will have no application in the instant case. 74. It is also not a case where a court has been conferred power to exercise a suo motu jurisdiction. Reliance placed by the appellant in State of Punjab and Ors. v. Bhatinda District Coop. Milk P. Union Ltd. 2007(217)ELT325(SC) , therefore, cannot be said to have any application. 75. Whereas on the one hand Mr. Desai objects to the evidence that was produced before the learned Single Judge with regard to the increase in the volume of sale of Peter Scot, on the other hand, it was urged that if a comparison is made of the Indian whisky and Scotch Whisky it would appear that some Indian whiskies are costlier than some of the Scottish brands. The stand taken by the respondents is self contradictory. We think that their stand is not fair. 76. We, therefore, in the peculiar facts and circumstances of this case, are of the opinion that action of the respondents is ba....
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....egard has been specifically stated in Kerly's Law of Trade Marks and Trade Names, Thirteenth Edition pg. 600 in the following terms: (3) If the goods are expensive or important to the purchasers and not of a kind usually selected without deliberation, and the customers generally educated persons, these are all matters to be considered. Respondent No. 1 initiated some proceedings in Australia and United States of America. We may notice some precedents operating in Australia and United States of America. AUSTRALIA 83. In Scotch Whisky Association v. Marton De Witt (2008) FCA 73 Federal Court of Australia, was concerned with the question as whether the mark 'GLENN OAKS' was deceptively similar to trade marks that, before the priority date of the Application, had acquired a reputation in Australia for scotch whisky and scotch whisky-based liquors as envisaged under Section 60 of the Trade Marks Act, 1995. In that proceeding also Ian Barclay had affirmed an affidavit in favour of respondent No. 1-Association. As regards the market (s) and consumer knowledge, it was held: 33. There are two classes of consumer in the scotch whisky and ....
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....ct distinction between bourbon products and scotch whisky products. The salesperson in a liquor store is a means by which consumers become knowledgeable about different products. By contrast, consumers would not typically ask a salesperson what a bottle of coke or a new soft drink tastes like. They would purchase the product and try it themselves. Consumers would also read product labels, see that 'scotch whisky' is written on the container, and infer that scotch whisky is made in Scotland. 86. The Court held that both involved and uninvolved purchasers of bourbon and scotch whisky products could not be confused save and except those who are exceptionally stupid or careless. 87. As regards deceptive similarity test, it was held: 66. The key issue under Section 60 is a comparison between the GLENN OAKS mark and marks used before its priority date. The approach in Pianotist Co's Application (1906) 23 RPC 774 at 777 is oft cited. There, Parker J said: You must take the two words. You must judge of them, both by their look and by their sound. You must consider the goods to which they are applied. You must consider the nature and kind of customer who ....
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.... the ear that counsel for the appellant was forced to rely on the likelihood of deception arising from the two words conveying the same idea of the superiority or supremacy of the article as a mechanism for making a spray similar to falling rain or artificial rain as it was called during the argument. But it is obvious that trademarks, especially word marks, could be quite unlike and yet convey the same idea of the superiority or some particular suitability of an article for the work it was intended to do. To refuse an application for registration on this ground would be to give the proprietor of a registered trademark a complete monopoly of all words conveying the same idea as his trademark. The fact that two marks convey the same idea is not sufficient in itself to create a deceptive resemblance between them, although this fact could be taken into account in deciding whether two marks which really looked alike or sounded alike were likely to deceive. As Lord Parker said in the passage cited, you must consider the nature and kind of customer who would be likely to buy the goods. A purchaser of spray nozzles and sprinklers would not be likely to be lacking in discernment. He would ....
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....must be considered: 1. The similarity or dissimilarity of the marks in their entireties as to appearance, sound, connotation and commercial impression. 2. The similarity or dissimilarity of and nature of the goods or services as described in an application or registration or in connection with which a prior mark is in use. 3. The similarity or dissimilarity of established, likely-to-continue trade channels. 4. The conditions under which and buyers to whom sales are made, i.e. "impulse" v. careful, sophisticated purchasing. 5. The fame of the prior mark (sales, advertising, length of use). 6. The number and nature of similar marks in use on similar goods. 7. The nature and extent of any actual confusion. 8. The length of time during and conditions under which there has been concurrent use without evidence of actual confusion. 9. The variety of goods on which a mark is or is not used (house mark, "family" mark, product mark). 10. The market interface between applicant and the owner of a prior mark: (a) a mere "consent" to register or use. (b) agreement provisions designed to preclude co....
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....tilling Company in The Scotch Whisky Association v. Majestic Distilling Company 958 F.2d 594. The Dupont test was applied to hold: Although the dictionary defines Black Watch as a Scottish infantry regiment, SWA produced no evidence that the public would understand it as such. We simply do not believe this creates an issue of material fact, especially considering that the labels clearly indicate the products are made in the United States. Moreover, the labels contain no express reference to Scotland nor were the products ever advertised as being of Scottish origin. More importantly, gin, blended whiskey, and vodka are not characteristically products of Scotland. 92. Yet again in Champagne Louis Roederer, S.A. v. Delicato Vineyards 148 F. 3d 1373 the United States Court of Appeals for the Federal Circuit applying the DuPoint (supra) test in a case of wine stated: Like regulatory agencies or other executive tribunals in their subject areas, the Trademark Trial and Appeal Board has acquired a high level of expertise in evaluating the DuPont factors and counter-weighing these factors to reach its ultimate conclusion -- the likelihood vel non of confusion between co....
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....the Bombay High Court stated the law thus : 6. Even on comparison of the trade mark of the plaintiffs with the defendants' trade mark, it is difficult to hold that the two marks are deceptively similar and are likely to create any confusion in the minds of the customers. It was furthermore observed: On comparison of the two marks bearing the aforesaid principles in mind, it is difficult to appreciate as to how there is even a remote possibility of any customer being misled. In my opinion, when a customer goes to a shop to buy the plaintiffs' product, he will not ask for "Duet" or "Gin N Lime" or "Gin N Orange" but he will ask for a "Blue Riband Gin N Lime" or "Blue Riband Tango Gin N Orange". Further having regard to the fact that the customer who is likely 'to buy the products of the plaintiffs and the defendants will be normally educated and discerning type, it is impossible to hold that there is any likelihood of confusion. It is pertinent to note that the plaintiffs have failed to cite even a single instance showing that there was confusion in the minds of the customers. The absence of evidence of actual deception is a circumstance which definit....
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.... by their sound. Must consider the goods to which they are to be applied. Nature and kind of customers who would likely to buy goods must also be considered. Surrounding circumstances play an important factor. What would likely to happen if each of those trade marks is used in a normal way as a trade mark of the goods of the respective owners of the marks would also be a relevant factor. [See Pianotist Co.' Application, Re, (1906) 23 RPC 774]. 99. Thus, when and how a person would likely to be confused is a very relevant consideration. 100. Where the class of buyers, as noticed hereinbefore, is quite educated and rich, the test to be applied is different from the one where the product would be purchased by the villagers, illiterate and poor. Ordinarily, again they, like tobacco, would purchase alcoholic beverages by their brand name. When, however, the product is to be purchased both by villagers and town people, the test of a prudent man would necessary be applied. It may be true that the tests which are to be applied in a country like India may be different from the tests either in a country of England, United Sates of America or Australia. We however, do not mean to su....
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....injured by the Defendants' conduct to which the counsel for the defendants did not contest the correctness of the statement. 103. The learned Judge, referring to Mayor of Bradford v. Pickles 1895 AC 587 and laying down the principles of injuries, noticed the argument of the counsel that before a person can negative the argument of the defence counsel, the person can recover for loss or it must be shown that his case falls within the class of actionable wrongs stating: 'But the law may be thought to have failed if it can offer no remedy for the deliberate act of one person which causes damage to the property of another. There are such cases, of course, but they occur, as a rule, when the claims of freedom action outweigh the interests of the other persons who suffer from the use which a person makes of his own property.' 104. It was in the aforementioned fact situation, the learned Judge proceeded to determine as to whether the description 'Spanish Champagne' is calculated to deceive holding that the plaintiff has a right to bring any action. 105. J. Bollinger and Ors. v. The Costa Brava Wine Company Limited (for short Bollinger II) 1961 (5) RPC 116, how....
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....eir price lists to list such wines under titles or descriptions which showed that they were of a type but not from the original district. Referring to Kerly on Trade Marks, which we have referred to hereinbefore, the learned Judge said: And it has been said that regard should not be had to 'unusually stupid people, fools or idiots'. Moreover, 'if the goods are expensive and not of a kind usually selected without deliberation and the customers generally educated persons these are all matters to be considered.' (That is also a quotation from the same book.) Various other judicial statements are collected in the judgment of the Assistant-Registrar in George Angus & Co.'s Application (1943) 60 R.P.C. 29, at pp. 31-32, to which I was referred. In arriving at the said decision, the following was specifically noticed: Mr. Munday, whose wine business was in Swansea, when asked 'How far do you think the class of customers that you deal with know the origin of Champagne?' replied: 'Limited. Some would know. The first category I mentioned would know a fair amount about it. In the second category some. But there would be a considerable nu....