Financial Daily from THE HINDU group of publications
Thursday, Mar 17, 2005
Financial Daily from THE HINDU group of publications Thursday, Mar 17, 2005 |
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Marketing
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IPR Corporate - Courts/Legal Issues Trademark violation: HC makes interim injunction absolute Our Legal Correspondent
Chennai , March 16 THE Madras High Court has held that infringement of a registered trademark by other persons would be illegal and any attempt to offend the law would be forbidden by grant of an interim injunction. Responding to a petition filed by a Chennai-based manufacturer of `kajal' (collyrium) and marketed with brand name of "EYE-TOP", and that an attempt was being made to market their product with the deceptive mark "EYE-TOP," and praying for a permanent injunction against the offender, the Court ordered that the interim injunction passed by it earlier was made absolute. The petitioner, Aravind Laboratories, said that their product was marketed in black circular plastic capsule, on the face of which the word `Eyetex' was embossed. A plastic stick with handle was supplied for applying the kajal to the eye-lashes so that it did not stain the fingers. The mark was being used by them for over 60 years and they had built up a reputation. The respondent, Arihand Cosmetics, the petitioner said, had started using the trademark `EYE-TOP' with a depiction of eye on the carton in the same colour. Admittedly, the respondent had not registered the mark. It was not as if the respondent had taken out an application for rectification of the trademark registry. According to the petitioner, they were the registered owner of the above trademark consisting of the word `EYETEX' along with the artistic representation of the profile of a human face. This had been tested in several legal proceedings before this Court and the claim of the petitioner had been sustained right through. The respondent's action in using the trademark was a calculated attempt to exploit the commercial goodwill earned by the petitioner. The respondent contended that the product `EYE-TOP' in no way infringed the trademark of the petitioner since there were distinct dissimilarities and the petitioner could not claim exclusive right over the word `EYE' as it was a common name. The respondent claimed that they had been using the same mark for the past 10 years. The respondent had secured a licence for manufacture of `EYE-TOP' from 1992. Two cartons were different and the containers were also different, and therefore, there was no chance of any deception or confusion in the minds of purchasers. The Court held that as rightly contended by the counsel for the petitioner, the respondent was selling goods so marked, putting design or calculated to lead the purchasers to believe that they were the petitioner's goods. The respondent was also using a mark, which was a colourable imitation of the petitioner's registered trademark. The petitioner had also set out details of the business carried on for more than five decades. In these circumstances, the petitioner was entitled to an order of injunction. The order of injunction passed by this Court in original application Nos. 422 & 423 of 2001 was made absolute.
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