Kerala Court Awards ₹1 Crore Compensation To 'MILMA' In Trademark Dispute Against 'MILNNA'

The Principal Commercial Court, Thiruvananthapuram, has passed a judgment in favour of the Kerala Co-operative Milk Marketing Federation Limited (plaintiff), popularly known as Milma, in a trademark dispute initiated by it against the defendant's brand “MILNNA”.The judgment was passed by Smt. Mariam Salomi, Principal Commercial Judge, Thiruvananthapuram.FactsThe plaintiff is a Co-operative Society incorporated in 1980 and is a state adjunct of the National Dairy Programme 'Operation Flood'. Its flagship brand name “Milma” enjoys a formidable market reputation, goodwill and recall value in the minds of the consumer and members of trade. It is engaged in the business of dairy and dairy derivative products such as curd, clarified butter, butter, cheese, ice creams, desserts, milk -based sweets and chocolates, drinking water, other milk and fruit-based drinks, etc. It has 37 items of registered trademarks with its special style, figures, pictures and colour combination.In September 2021, the plaintiff came to know that the defendant is engaged in the processing, packaging and marketing of milk under the name “MILNNA” (impugned mark). The plaintiff claimed that it suffered irreparable loss and injury to their business as well their reputation on account of the infringing acts of the defendant. Thus, the plaintiff initiated the present suit for perpetual prohibitory injunction and for realisation of damages from the defendant. Though notice was issued to the defendant, he did not appear before the Court.FindingsThe Court considered the evidence brought in the plaintiff and found that the impugned trademark used by the defendant in his products were deceptively similar to the trademarks of the plaintiffs in Schedules A and B of the plaint.Distinctive trademarkThe trademark “MILMA” was found to be a word invented by the plaintiffs using the words 'milk' and 'marketing'. The said trademark, being a coined one, was completely distinctive in nature and adopted by the plaintiff in 1983.It observed:“The font in which the word “MILMA” is written is also unique to the plaintiff's registered trademarks and enjoys a substantial recall value amongst its consumers and members of trade.”Deceptively similar and violative of Section 29 of Trade Marks ActThe Court found that the impugned mark 'Milnna' is a blatant copy of the prior registered trademark of the plaintiff. It found that the defendant was illegally riding on the wave of the goodwill and reputation earned by the plaintiff.It observed:“The defendant is presently misusing the plaintiff's well established registered trademark in the course of trade to ride upon the reputation and goodwill to make illegal profit which is a clear case of infringement of plaintiff's registered trademark under Section 29 of the Trade Marks Act 1999. The reputation and the goodwill enjoyed by the plaintiff for the last several decades would be diluted by the use of the deceptively similar mark by the defendant.”Well-established in the minds of the publicThe Court also found that the consumers and the general public have come to associate the word with the plaintiff's products. It observed:“The plaintiff's trademarks owing to its continuous and extensive use for the past four decades is well established in the minds of the consuming public and members of trade alike and has come to be associated with the goods of the plaintiff to the exclusion of all others.”Ordinary consumer with imperfect recollection would associate the trademark with the plaintiffs productsThe Court used the test of ordinary person with imperfect recollection in the case. It observed:“…The packaging consists of the impugned mark 'Milnna', written in the same stylized font along with the device of cow as well as the identical colour combination as that of the products of the plaintiff. The 'device of the cow' and 'the product specification' on the defendant's packaging is placed in exactly the same position as that of the plaintiff……The uniqueness of the design of the aforesaid packaging coupled with the use of the plaintiff's trademarks, the ordinary consumer with imperfect recollection and members of trade alike to identify the products as originating from the plaintiff while also creating an assumption in the minds of the consumer regarding the high quality associated with the products of the plaintiff sold under their trademarks.”Defendant gaining illegal profitsThe plaintiff stated that though enquires were made, the exact location of the factory, quantum of trade, details of origin of milk, etc. could not be detected. However, a Facebook video, which showed that consumers were being sold the defendant's products bearing the impugned mark along with the plaintiffs' products, was brought in. It was considered as evidence of the defendant misusing the market value and reputation of the plaintiff. It was also considered as evidence of the defendant gaining illegal profits under the identical/deceptively similar impugned...

Kerala Court Awards ₹1 Crore Compensation To 'MILMA' In Trademark Dispute Against 'MILNNA'

K. Salma Jennath

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