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No Exclusive Right Over Use Of The Word ‘MALABAR’ For Product Sale, Holds SC [Read Judgment]

Ashok Kini
13 July 2018 10:33 AM GMT
No Exclusive Right Over Use Of The Word ‘MALABAR’ For Product Sale, Holds SC [Read Judgment]
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Parakh Vanijya Pvt. Ltd., which claims to have been using the mark ‘MALABAR’ for selling Biryani Rice from 2001, had charged Baroma Agro Products of infringement for using the word ‘MALABAR’ in conjunction with the mark ‘BAROMA’ to sell its Biryani Rice.

The Supreme Court has upheld a Calcutta High Court order that held that Parakh Vanijya Private Limited cannot claim exclusive right over the use of the word ‘MALABAR’.

A single bench of the Calcutta High Court had, in an order modifying an interim injunction order in the suit filed by Parakh Vanijya Pvt. Ltd. , held that Baroma Agro Products is entitled to use the word ‘MALABAR’ in conjunction with the mark ‘BAROMA’ for selling its Biryani Rice. It also held that all the words and letters must be in the same font but the word ‘MALABAR’ may be increased with font size of not more than 25% than the rest of the words or letters. The division bench had dismissed the appeal.

Senior Advocate Shyam Divan, who appeared for Parakh Vanijya Pvt. Ltd., before the apex court bench, submitted that it is the registered owner of the label mark in Class-30 in respect of rice, flour and preparations made from cereals, bread, cakes, biscuits, pastry and spices.

A bench of Justice Ranjan Gogoi and Justice R Banumathi noticed that in the registration under Class-30, there is a disclaimer for the word ‘MALABAR’, which states that the company has no right over the exclusive use of the word ‘MALABAR’.

Senior Advocate Gourab K Banerji brought to the notice of the bench that the registration of other goods under Class-30 with the word ‘MALABAR MONSOON’ granted in favour of Amalgamated Bean Coffee Trading Company Limited for coffee cream, coffee included in Class-30, also contains similar disclaimer of the word ‘MALABAR’.

The bench observed: “Likewise, the label ‘MALABAR COAST’ has been registered in Class-30 for Coffee, Tea, Cocoa, Sugar etc. in favour of Tropical Retreats Private Limited which again contains a similar disclaimer for the exclusive use of the word ‘MALABAR COAST’. Having regard to the materials placed on record, we are of the view that the High Court rightly held that the appellant cannot claim exclusive right over the use of the word ‘MALABAR’.”

Upholding the high court order, the bench said: “The label of the respondents containing the words “BAROMA”, “MALABAR”, “GOLD” are circled having a different get-up from that of the appellant. By comparison of the two label marks, in our view, both appear to be substantially different. There appears to be no similarity between both the labels, more so, deceptive similarity. Keeping in view the interest of the respective parties who are said to be having substantial turn-over in their respective business, the High Court rightly held that the respondents would be entitled to use the word  ‘MALABAR’ in conjunction with ‘BAROMA’ with the different get-up as approved by the High Court. We do not find any serious infirmity warranting interference with the impugned order.”

Read the Judgment Here

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