{"id":187263,"date":"2009-10-07T00:00:00","date_gmt":"2009-10-06T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/the-scotch-whisky-association-vs-khoday-india-limited-on-7-october-2009"},"modified":"2019-02-07T02:57:21","modified_gmt":"2019-02-06T21:27:21","slug":"the-scotch-whisky-association-vs-khoday-india-limited-on-7-october-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/the-scotch-whisky-association-vs-khoday-india-limited-on-7-october-2009","title":{"rendered":"The Scotch Whisky Association vs Khoday India Limited on 7 October, 2009"},"content":{"rendered":"
Bombay High Court<\/div>\n
The Scotch Whisky Association vs Khoday India Limited on 7 October, 2009<\/div>\n
Bench: S.J. Vazifdar<\/div>\n
                                            1\n\n\npps\n\n\n\n\n                                                                          \n                   IN THE HIGH COURT OF JUDICATURE AT BOMBAY\n                    ORDINARY ORIGINAL CIVIL JURISDICTION\n\n\n\n\n                                                  \n                              CHAMBER SUMMONS NO.1783 OF 2008\n                                             IN\n                                   SUIT NO.1729 OF 1987.\n\n\n\n\n                                                 \n      The Scotch Whisky Association                        ..Plaintiffs.\n\n                  Vs.\n\n\n\n\n                                     \n      Khoday India Limited\n                         ig                                ..Defendants.\n\n\n      Dr.Virendra Tulzapurkar with Mr.Amit Jamsandekar\n                       \n      i\/b.Sr.Counsel Little & Co. for the Plaintiffs.\n\n      Mr.F.DeVitre, Sr.Counsel a\/w. Mr.Zubin Behram\n      Kamdin, Mr.Sagar Divekar i\/b. Wadia Gandhy for the\n        \n\n\n      Applicant in Chamber Summons\/Defendants.\n     \n\n\n\n                                            CORAM: S.J. VAZIFDAR, J.\n<\/pre>\n
                                                    th
\n                                            DATED: 7 OCTOBER, 2009<\/p>\n
      JUDGMENT.\n<\/p>\n
      1.          This    is    the   defendant s           chamber          summons<\/p>\n
      seeking an order rejecting the plaint and dismissing<\/p>\n
      the suit as covered and concluded by the judgment of<\/p>\n
      the Supreme Court dated 27.5.2008 reported in (2008)<\/p>\n
      10   SCC   723     in   an   appeal       filed    by     the      defendant<\/p>\n
      against the plaintiff from the order and judgment of<\/p>\n
      the Division Bench of the Madras High Court and for<\/p>\n
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\n                                                 2<\/span><\/p>\n
     a declaration that the above suit does not survive<\/p>\n
     in view of the said judgment.\n<\/p>\n
     2.          This    is     an    action           for      passing        off.        The<\/p>\n
     plaintiff        filed     the        suit        inter        alia        for        the<\/p>\n
     following reliefs:\n<\/p>\n
          a) that        it     be    declared          that       by     using        in<\/p>\n
                 respect       of     whisky           not      distilled            and
\n                 matured in Scotland the impugned label<\/p>\n
                 (being        Exhibit          M)      and      the        impugned
\n                 carton (being Exhibit O) containing the<\/p>\n
                 word     SCOT        and\/or the crest of a lion
\n                 rampant       and    the        description              Distilled
\n                 from the Finest Malt and Blended with<\/p>\n
                 the Choicest Whiskies by Scotch Experts<\/p>\n
                 under        Government            Supervision              or      the
\n                 word    SCOT        or    the       device        of     the      lion
\n                 rampant        or        the       said      description              in<\/p>\n
                 respect        of         the         defendant s              whisky
\n                 manufactured in India, the defendant is
\n                 passing        off        its       whisky          as         Scotch
\n                 Whisky ;\n<\/p><\/blockquote>\n
          b)     that     the        defendant             by      itself,           its
\n                 servants and agents be restrained by a
\n                 perpetual order and injunction of this
\n                 Hon ble        Court            from        advertising               or
\n                 offering        for            sale       or       selling            or
\n                 distributing in any country whisky which
\n                 is    not     Scotch           Whisky       under        the      word<\/p>\n
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\n                                        3<\/span><\/p>\n
           SCOT       or the device of the lion rampant<\/p>\n
          or    the    said       description             or      with       the
\n          label (being Exhibit M) or the carton<\/p>\n
          (being      Exhibit         O)    containing            the      word
\n           SCOT       or the device of a lion rampant
\n          and\/or      the    description               Distilled           from<\/p>\n
          the    Finest       Malt     and        Blended         with       the
\n          Choicest          Whiskies         by        Scotch         Experts
\n          under    Government              Supervision ,              or     any<\/p>\n
          other    label         or    carton          containing            any<\/p>\n
          description material or any other thing
\n          in respect of whisky which is not Scotch<\/p>\n
          Whisky       by     using         the        impugned           label
\n          (being       Exhibit        M)        and\/or        the        carton
\n          (being         Exhibit           O)       containing               the<\/p>\n
          impugned material, so as to pass of or
\n          enable to pass off its whisky as                               Scotch<\/p>\n
          Whisky ;\n<\/p><\/blockquote>\n
     C)   that     the       defendant            by     itself,           its<\/p>\n
          servants and agents be restrained from
\n          exporting its said whisky to Japan or
\n          Abu Dhabi under the mark                         PETER SCOT<\/p>\n
          or the device of a lion rampant or the
\n          said description or using the impugned
\n          label or carton being Exhibits                             M     and
\n           O     hereto containing the word                              SCOT
\n          or the device of a lion rampant or the
\n          description            Distilled from the Finest
\n          Malt     and      Blended         with        the       Choicest
\n          Whiskies          by     Scotch           Experts              under<\/p>\n
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\n                                           4<\/span><\/p>\n
               Government        Supervision           or     any       other<\/p>\n
               description          or        device         or         words
\n               suggesting        Scottish      origin        in    respect<\/p>\n
               of    the     defendant s            Whisky        or     from
\n               placing      in    the     hands      of     traders          or
\n               middlemen in Japan or Abu Dhabi labels<\/p>\n
               or    cartons      containing          the       aforesaid
\n               material so as to enable the traders
\n               and\/or middlemen in Japan or Abu Dhabi<\/p>\n
               to pass off the Defendant s whisky as<\/p>\n
               Scotch Whisky;\n<\/p>\n
     3.        Mr.    DeVitre     submitted          that     the       cause        of<\/p>\n
     action in this suit does not survive in view of the<\/p>\n
     judgment of the Supreme Court.                   He submitted that<\/p>\n
     the   cause    of    action,    if       any    is     barred         by      the<\/p>\n
     principles analogous to res judicata as the cause of<\/p>\n
     action in the suit and in the original proceedings<\/p>\n
     from which the matter reached the Supreme Court is<\/p>\n
     the   same.         According       to    him          the        issues        of<\/p>\n
     acquiescence and waiver raised by the defendant and<\/p>\n
     the issue whether the defendants marks, devices and<\/p>\n
     labels   are    deceptively        similar       to    the        plaintiffs<\/p>\n
     marks or are likely to cause confusion have been<\/p>\n
     decided by the Supreme Court in the said judgment.\n<\/p>\n
     Thus, he submits the suit is liable to be dismissed<\/p>\n
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\n                                                 5<\/span><\/p>\n
     on the ground of issue estoppel.                           The decision of<\/p>\n
     the     Registrar        in        rectification            proceedings               is<\/p>\n
     binding     between          the     parties        in     all      proceedings<\/p>\n
     including the present suit.                     It is not permissible<\/p>\n
     for the parties to lead additional evidence in this<\/p>\n
     suit in view of the judgment of the Supreme Court<\/p>\n
     which     was      delivered               in   the        proceeding               for<\/p>\n
     rectification     ig  commenced            before     the        Registrar            of<\/p>\n
     Trade     Marks.        In     the     circumstances,             Mr.       DeVitre<\/p>\n
     submitted that the suit is liable to be rejected<\/p>\n
     under Order VII Rule 11 read with Section 151 of the<\/p>\n
     Code of Civil Procedure.\n<\/p>\n
     4.         Considering               the    nature         of     the       Chamber<\/p>\n
     Summons    it      is        not     necessary       to     deal        with        the<\/p>\n
     disputes     between           the     parties        on        merits.             The<\/p>\n
     question that arises is whether the suit is liable,<\/p>\n
     in    effect,    to      be    dismissed        in    view       of      the      said<\/p>\n
     judgment    of     the       Supreme       Court.          It    is     therefore<\/p>\n
     necessary to refer to the facts only in so far as<\/p>\n
     they are relevant for this purpose.\n<\/p>\n
     5.(A)      Plaintiff           No.1        is   incorporated            with        the<\/p>\n
     object inter-alia of protecting and promoting the<\/p>\n
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\n                                        6<\/span><\/p>\n
     interests of the scotch whisky trade in the United<\/p>\n
     Kingdom   and    abroad    which       it     does        inter-alia             by<\/p>\n
     prosecuting and defending legal proceedings in any<\/p>\n
     territory in the world.          Plaintiff No.2, John Walker<\/p>\n
     & Sons Ltd., is a company incorporated in the United<\/p>\n
     Kingdom carrying on business as distillers, blenders<\/p>\n
     and dealers of scotch whisky.                 Plaintiff No.3 is a<\/p>\n
     company     incorporated
\n                      ig             under        the        laws         of        the<\/p>\n
     Netherland.      Plaintiff Nos.2 and 3 are members of<\/p>\n
     plaintiff      No.1.      The    scotch          whisky          brands          of<\/p>\n
     plaintiff No.2 stand transferred to plaintiff No.3.\n<\/p>\n
     (B)         According      to      the         plaintiff,                whisky<\/p>\n
     distilled      and     matured        in     Scotland             is       known<\/p>\n
     throughout      the    world     as        Scotch       Whisky.                The<\/p>\n
     description     Scotch    Whisky       means        whisky         which         is<\/p>\n
     distilled and matured in Scotland and nowhere else.\n<\/p>\n
     Any   whisky    sold    under    any       description,            name        and<\/p>\n
     label, device, mark, ticket, get up or emblem which<\/p>\n
     is evocative of Scotland is likely to be taken as<\/p>\n
     Scotch Whisky by members of the trade and public.\n<\/p>\n
     Accordingly, whisky which is not Scotch Whisky if<\/p>\n
     dealt with by bearing such name or description is<\/p>\n
     bound to mislead the public and members of the trade<\/p>\n
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\n                                           7<\/span><\/p>\n
     all over the world including India.                      The members of<\/p>\n
     plaintiff No.1 use words and devices evocative of<\/p>\n
     Scotland.        A number of members of plaintiff no.1 use<\/p>\n
     brand       names   including       the    word       SCOT ,           SCOTT ,<\/p>\n
      SCOTS       such as Captain Scott, Golden Scot, Royal<\/p>\n
     Scot,       Northern   Scot,    Grand      Scot,      Scot        Royal        and<\/p>\n
     Queen of Scots.         Thus, the use of any such device or<\/p>\n
     description of brand names by any one in respect of<\/p>\n
     whisky so as to suggest that such whisky emanates<\/p>\n
     from    Scotland,      when    in    fact    it     does        not,       would<\/p>\n
     mislead and is likely to mislead people in general,<\/p>\n
     and    in    any    event   would    put     them      in     a     state        of<\/p>\n
     confusion.\n<\/p>\n
     (C)           The details of sales of Scotch Whisky by<\/p>\n
     the members of plaintiff no.1 and the advertisements<\/p>\n
     issued by them are referred to, to indicate that<\/p>\n
     they     have       acquired    an        enormous        and        enviable<\/p>\n
     reputation and goodwill all over the world including<\/p>\n
     India.       The plaintiffs have also furnished details<\/p>\n
     of      action      taken      by     them,         including              legal<\/p>\n
     proceedings, all over the world to prevent attempts<\/p>\n
     by various traders to pass off their products as<\/p>\n
     Scotch Whisky.\n<\/p>\n
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\n                                             8<\/span><\/p>\n
     (D)       The plaint then refers to the device of the<\/p>\n
     Lion   Rampant    stating        the    same    to     be     particularly<\/p>\n
     evocative of Scotland as the Lion Rampant in red as<\/p>\n
     well as the yellow background indicates the Royal<\/p>\n
     Standard of Scotland.<\/p>\n
\n\n\n     6.        The defendant has adopted the mark                                PETER\n\n\n\n\n                                     \n     SCOT    and    uses\n                     ig    it    on    its       labels.          Further,           the\n\n<\/pre>\n
     defendant has also adopted the crest of lion rampant<\/p>\n
     which is a copy of the Scottish Royal Standard.                                 The<\/p>\n
     crest is in red and on a yellow background, the same<\/p>\n
     colours as in the standard.                  The label also bears<\/p>\n
     the words      Distilled from Finest Malt and Blended<\/p>\n
     With the Choicest Whiskies by Scotch Experts under<\/p>\n
     Government Supervision .\n<\/p>\n
     7.        It     is   averred          in   the      plaint         that        the<\/p>\n
     defendant is exporting its product under the brand<\/p>\n
     name   PETER SCOT          to Japan where it is sometimes<\/p>\n
     sold in retail stores among Scotch Whiskies and that<\/p>\n
     by using the word           SCOT , the crest of the Lion<\/p>\n
     Rampant and the descriptive words, the defendant has<\/p>\n
     committed the tort by passing off in India, which is<\/p>\n
     completed in India upon export of the said goods for<\/p>\n
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\n                                         9<\/span><\/p>\n
     sale in Japan.         The law in Japan being a question of<\/p>\n
     fact is also set out.          Similar averments are made in<\/p>\n
     respect of exports to Abu Dhabi.\n<\/p>\n
     8.         The suit, therefore was filed inter alia on<\/p>\n
     the    ground   that     the   trade     and    good      will       of      the<\/p>\n
     members of the first plaintiff including plaintiff<\/p>\n
     nos.2 and 3 are being affected by the use of the<\/p>\n
     impugned label and the impugned carton containing<\/p>\n
     the    impugned    mark,   device      and     description            as     the<\/p>\n
     same suggest that the defendant s whisky is scotch<\/p>\n
     whisky.\n<\/p>\n
     9.         It     is   important    to    note     that       the      plaint<\/p>\n
     proceeds on the basis that the three factors viz.\n<\/p>\n
     the word mark, the crest, and the descriptive words<\/p>\n
     each    independently      and   together        are      evocative            of<\/p>\n
     Scotland    and    are   therefore       causing       damage         to     the<\/p>\n
     trade and goodwill of the members of plaintiff No.1<\/p>\n
     and that the defendant is deliberately misleading<\/p>\n
     the traders and members of the public into believing<\/p>\n
     that its whisky is Scotch Whisky.\n<\/p>\n
     10.        The plaint thereafter refers to the search<\/p>\n
     reports and information received from their trade<\/p>\n
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\n                                        10<\/span><\/p>\n
     mark agents.        The first plaintiff admitted receipt<\/p>\n
     of notice of the advertisements of the said mark<\/p>\n
      PETER SCOT     in the trade mark journal on 20.9.1974.\n<\/p>\n
     It    is   stated    that   regrettably         no      objection            was<\/p>\n
     lodged by the first plaintiff through inadvertance<\/p>\n
     but that the plaintiff vigorously opposed the other<\/p>\n
     deceptive     trade     marks     which       were        applied            for<\/p>\n
     registration    of
\n                     ig    Indian     distilleries           including            the<\/p>\n
     defendant.      The action taken by the plaintiff in<\/p>\n
     respect of the defendants proposed mark                            HOGMANY<\/p>\n
     and    OLD ANGUS     is referred to.\n<\/p>\n
     11.         According to Mr. DeVitre the entire cause<\/p>\n
     of action pleaded in the plaint has been dealt with<\/p>\n
     and decided in the rectification proceedings which<\/p>\n
     ultimately    resulted      in   the   said       judgment           of      the<\/p>\n
     Supreme Court.        It is necessary therefore to refer<\/p>\n
     to the judgment of the Supreme Court in considerable<\/p>\n
     detail.      This is for the obvious reason that the<\/p>\n
     judgment is relied upon not merely as a precedent<\/p>\n
     but    essentially     in    support       of      the       defendant s<\/p>\n
     Chamber Summons to have the plaint rejected and the<\/p>\n
     suit dismissed under Order VII Rule 11 read with<\/p>\n
     Section 151 of the CPC on the ground that the cause<\/p>\n
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\n                                               11<\/span><\/p>\n
     of action in the suit does not survive.\n<\/p>\n
     12.        Before          considering         the      judgment            of      the<\/p>\n
     Supreme Court it is necessary to deal with certain<\/p>\n
     preliminary issues raised by Counsel.\n<\/p>\n
     13.        Mr.       DeVitre       submitted         that         although          the<\/p>\n
     judgment of the Supreme Court is subsequent to the<\/p>\n
     filing     of    this
\n                       ig        suit,       the     application               for       the<\/p>\n
     dismissal thereof is maintainable under Order VII<\/p>\n
     Rule 11 read with Section 151 of the C.P.C.                                           In<\/p>\n
     other words according to him an application of this<\/p>\n
     nature    may    be    based       on    events       subsequent            to      the<\/p>\n
     filing of the suit.\n<\/p>\n
     14.        If indeed the judgment operates as an issue<\/p>\n
     estoppel    or       res    judicata          the    fact         that      it      was<\/p>\n
     delivered after the suit was filed would not bar the<\/p>\n
     court     from       granting      the        reliefs       sought          in      the<\/p>\n
     Chamber    Summons.              Subsequent         facts      even       in      this<\/p>\n
     regard can and              indeed must be considered by the<\/p>\n
     Court.      This is well established by a series of<\/p>\n
     judgments.           It     is    sufficient          to      refer         to      the<\/p>\n
     judgment        of    the        Supreme       Court         in           Shipping<\/p>\n
     Corporation of India v. Machado                        Brothers<\/a>               (2004)<\/p>\n
                                                      ::: Downloaded on – 09\/06\/2013 15:09:49 :::<\/span>
\n                                         12<\/span><\/p>\n
     11 SCC 168.      The Supreme Court held that by the<\/p>\n
     subsequent   event    if     the   original         proceedings              has<\/p>\n
     become infructuous it would be the duty of the Court<\/p>\n
     to take such action as is necessary in the interest<\/p>\n
     of justice which includes disposing off infructuous<\/p>\n
     litigations.     It     is    further      held       that       for       this<\/p>\n
     purpose it would be open to the parties to make an<\/p>\n
     application under Section 151 of the CPC.\n<\/p>\n
     15.      Mr.   DeVitre       further        submitted            that        the<\/p>\n
     finding in a previous proceeding is conclusive in<\/p>\n
     subsequent proceedings.        He relied upon the judgment<\/p>\n
     of a learned Single Judge of this Court in Rama<\/p>\n
     Maruti v. Mallappa Krishna<\/a> [AIR 1942 Bom. 309].                                In<\/p>\n
     this case the plaintiff filed the suit to recover<\/p>\n
     certain properties on the strength of the adoption<\/p>\n
     made by a widow to her husband Krishna who was the<\/p>\n
     owner.   After    her      death    the     plaintiff s              natural<\/p>\n
     mother acting as his guardian leased the land to<\/p>\n
     defendant no.3 for ten years after                       the adoption.\n<\/p>\n
     Defendant no.3 in collusion with defendant nos.1 and<\/p>\n
     2 made over possession to them alleging that he was<\/p>\n
     a tenant of defendant no.1.             The plaintiff therefore<\/p>\n
     filed the suit to recover the land.                    Defendant no.1<\/p>\n
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\n                                             13<\/span><\/p>\n
     admitted    that      the    lands     belonged      to     the      adoptive<\/p>\n
     father but disputed the plaintiffs adoption by him.\n<\/p>\n
     The plaintiff relied upon the decision in previous<\/p>\n
     execution       proceedings       which     were      also       taken         out<\/p>\n
     against defendant no.1 in which it was held that the<\/p>\n
     plaintiff had been adopted as contended.                                It was<\/p>\n
     held that the principal of res judicata would apply<\/p>\n
     even     though   ig  the     subject       matter         of       the        two<\/p>\n
     proceedings may be different provided the issue is<\/p>\n
     the same. It was therefore held that the defendants<\/p>\n
     contention       that       the   plaintiff        was       not       validly<\/p>\n
     adopted was barred by res judicata.\n<\/p>\n
     16.         The judgment supports the submission that<\/p>\n
     for a plea of res judicata it is not necessary that<\/p>\n
     the subject matter of the two proceedings is the<\/p>\n
     same. The decision in the execution proceeding was<\/p>\n
     not    merely    a    finding     of    fact   in      support         of      the<\/p>\n
     issue, but was a decision upon the issues itself.\n<\/p>\n
     It is sufficient if the issue is the same.                                     The<\/p>\n
     question therefore before me is whether the issues<\/p>\n
     raised    in    the     present      suit   were      decided          by      the<\/p>\n
     Supreme Court in the said judgment.\n<\/p>\n
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\n                                              14<\/span><\/p>\n
     17.          Mr.     DeVitre       submitted          that        even       if      the<\/p>\n
     causes of action are different, if the issue is the<\/p>\n
     same   the     finding        in    a   previous            proceeding             will<\/p>\n
     constitute         an     issue         estoppel             in        subsequent<\/p>\n
     proceedings.         He submitted therefore that although<\/p>\n
     the causes of action in the proceeding before the<\/p>\n
     Registrar of Trade             Marks which ultimately reached<\/p>\n
     the Supreme Court may be different from the causes<\/p>\n
     of action in the present suit, the finding regarding<\/p>\n
     acquiescence       and     waiver       as    well          as     whether           the<\/p>\n
     defendants use of the three factors are deceptive or<\/p>\n
     likely to cause confusion in those proceedings                                       bar<\/p>\n
     the present suit on the principle of issue estoppel.\n<\/p>\n
     He submitted that the evidence and the case in the<\/p>\n
     present      matter      is        identical          to       the       evidence,<\/p>\n
     pleadings      and      the    case     in    its         entirety           in      the<\/p>\n
     rectification proceedings.\n<\/p>\n
     18.          The submission on the point of laws is well<\/p>\n
     founded      and   finds      support        in      the      judgment            of     a<\/p>\n
     Division Bench of this Court in Chiranjilal vs. L.I.\n<\/p>\n
     Corporation [AIR 1959 Bom 396].                     It was held:\n<\/p>\n
            (7)         But the real and substantial point<\/p>\n
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\n                                        15<\/span><\/p>\n
     that has been urged by Mr. Laud is that the<\/p>\n
     cause of action in Suit No.438 of 1934 and
\n     in     the   present        suit       are       different          and<\/p>\n
     therefore S.11 of the Civil Procedure Code
\n     has     no   application.               Now,       what       S.      11
\n     requires is not that the causes of action in<\/p>\n
     the two suits must be identical, but that
\n     the    matter     directly        and     substantially               in
\n     issued in the subsequent suit should also be<\/p>\n
     directly and substantially in issue in the
\n     former suit
\n                   ig   It will be noticed that under
\n     S.11, not only the suit itself may be barred<\/p>\n
     but also an issue, and therefore what we
\n     have    to   consider       is     whether         a   particular
\n     issue which the plaintiffs seek to be tried<\/p>\n
     in the suit was directly and substantially
\n     the same in the earlier suit, and in this<\/p>\n
     connect what is said is that in the present
\n     suit the plaintiffs are seeking a relief on<\/p>\n
     the basis of a customary right enjoyed by
\n     the Hindu community and it is pointed out
\n     that in the earlier suit the claim was made
\n     on     the   basis     of     a        dedication         made        by<\/p>\n
     Putlibai and therefore it is said that the
\n     metters      in   issue      in    the       two       suits       were
\n     different and the decision in the earlier
\n     suit cannot operate as res judicata.                               When
\n     one     analyses     the      matter         a     little          more
\n     closely      it   becomes     clear       that         the    rights
\n     that the plaintiffs were claiming on behalf
\n     of the Hindu Community in Suit No.438 of<\/p>\n
                                              ::: Downloaded on – 09\/06\/2013 15:09:50 :::<\/span>
\n                                        16<\/span><\/p>\n
     1984 were the same as are now being claimed<\/p>\n
     in the present suit.                  It is true that there
\n     was a contention in the earlier suit that<\/p>\n
     there was a public charitable trust.                               There
\n     had to be such a contention because the suit
\n     was    under    S.92.            It    is     also        true       that<\/p>\n
     reliance      was    placed       upon       a     dedication            by
\n     Putlibai.       But what is significant is that
\n     the plaintiffs in the suit did not rely upon<\/p>\n
     any written trust.                What they relied upon<\/p>\n
     was a long and continuous user of certain
\n     rights by members of the Hindu Community and<\/p>\n
     what was in issue in that suit was whether
\n     the members of the Hindu community had used
\n     as a matter of right the property in suit<\/p>\n
     for    the    purpose       of    religious             ceremonies.
\n     Now, that is the exact issue which arises in<\/p>\n
     the present suit.                What is in the present
\n     suit    is    whether       the       Hindu       community            had<\/p>\n
     performed these religious ceremonies for a
\n     long and continuous period so that they have
\n     become entitled to these rights as customary
\n     rights.        In our opinion, what we have to<\/p>\n
     look at is not the legal for which is given
\n     to the right claimed by the plaintiffs, but
\n     what    is     the   real        and     substantial               right
\n     claimed.       Whether a dedication in law can be
\n     inferred from a long and continuous user by
\n     the Hindu community or a customary right can
\n     be inferred; the real matter in issue was
\n     the    user     by    the        members         of      the       Hindu<\/p>\n
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\n                                            17<\/span><\/p>\n
            community.        That    is     what     the       plaintiffs<\/p>\n
            contended and that is what the defendants
\n            disputed, and the result was a compromise.\n<\/p>\n
            In    the   present      suit       the   plaintiffs              are
\n            putting forward the same contention and the
\n            defendants     are    contesting          the     plaintiff s<\/p>\n
            claim.      Therefore, in our opinion, there is
\n            no    substance    in    the     contention           that        the
\n            matters in issue in the two suits are not<\/p>\n
            the same.\n<\/p>\n
     –\n<\/p>\n
     Mr.    DeVitre\n                        \n                        submitted      that       although          it     was       not\n                       \n<\/pre>\n
     necessary for the Supreme Court to decide the issues<\/p>\n
     that arise in this suit, the Supreme Court did deal<\/p>\n
     with and answer the same.                  I do not agree. I have<\/p>\n
     come    to   the    conclusion     that      the       judgment          of     the<\/p>\n
     Supreme Court did not decide the issues which arise<\/p>\n
     in the suit for reasons I will indicate later while<\/p>\n
     analysing the judgment.\n<\/p>\n
     19.          Mr. DeVitre submitted that these principles<\/p>\n
     would apply although the reliefs claimed in the two<\/p>\n
     proceedings may be different so long as the issue<\/p>\n
     was the same.        The submission finds support from the<\/p>\n
     judgment      of   the   Supreme       Court     in     case        of    Pandit<\/p>\n
     Ishwardas vs. State of M.P. (1979) 4 SCC 163. In<\/p>\n
     para 7 the Supreme Court held as under:\n<\/p>\n
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\n                                   18<\/span><\/p>\n
     7. The plaintiff in both the                suits was the<\/p>\n
     same. The contesting defendant was also the
\n     same, namely the State of Madhya Pradesh. In<\/p>\n
     the    present     suit     Melaram       and      the      Chief
\n     Conservator of Forests were also im-pleaded
\n     as parties whereas in the other suit some<\/p>\n
     other person was a party. We do not see that
\n     it makes any difference. In order to sustain
\n     the plea of res judicata it is not necessary<\/p>\n
     that all the parties to the two litigations<\/p>\n
     must be common. All that is necessary is
\n     that the issue should be between the same<\/p>\n
     parties or between parties under whom they
\n     or    any    of   them    claim.    The     issue        in     the
\n     present suit and the issue in the Dewas suit<\/p>\n
     were    between     the    same    parties       namely         the
\n     appellant and the State of Madhya Pradesh.\n<\/p>\n
     The submission that the subject-matters of
\n     the    two   suits   were    different          because         the<\/p>\n
     present suit was for a declaration and the
\n     other suit was for damages is                            equally
\n     without substance since the issue between
\n     the parties was identical in both the suits.\n<\/p>\n
     The question at issue in both the suits was
\n     whether the agreement between Melaram and
\n     the Government and the surety bond executed
\n     by     the    plaintiff      were     not        enforceable
\n     because      of    the    failure     to      comply          with
\n     Article 299 of the Constitution. The ground
\n     on which the agreement and the surety bond
\n     were sustained in the Dewas suit was that<\/p>\n
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\n                                            19<\/span><\/p>\n
            the Raj Pramukh had ratified the same. The<\/p>\n
            fact     that    the    ratification               by     the        Raj
\n            Pramukh was not expressly mentioned in the<\/p>\n
            present suit does not make any difference to
\n            the plea of res judicata. Once the questions
\n            at issue in the two suits are found to be<\/p>\n
            the same, the fact that the material which
\n            led to the decision in the earlier suit was
\n            not again placed before the Court in the<\/p>\n
            second     suit     cannot         make       the        slightest<\/p>\n
            sustained<\/p>\n
            difference. The plea of res judicata may be
\n                            without       anything         more,          if     the<\/p>\n
            questions at issue and the parties are the
\n            same,     subject       of     course         to        the        other
\n            conditions prescribed by Section 11 Civil<\/p>\n
            Procedure       Code.        The    submission              of       the
\n            learned    counsel      that       the    decision            of     the<\/p>\n
            Dewas Court and the High Court in the other
\n            suit were non est because they upheld an<\/p>\n
            illegal contract has only to be noticed to
\n            be rejected.\n<\/p>\n
     20.           Dr. Tulzapurkar submitted that the 1958 and<\/p>\n
     the 1999 Act specifically preserved and recognized<\/p>\n
     the right to pursue the common law remedy of passing<\/p>\n
     off.    He submitted therefore that any decision in a<\/p>\n
     rectification proceeding which is adopted under the<\/p>\n
     Act cannot affect the right to pursue a passing off<\/p>\n
     action.        To hold otherwise according to him would<\/p>\n
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\n                                                    20<\/span><\/p>\n
     negate the right under Section 27(2).\n<\/p>\n
     21.           There is no dispute that the Act preserves<\/p>\n
     the common law remedy of passing off.                                     It does not<\/p>\n
     follow however that the rule of issue estoppel or<\/p>\n
     res judicata do not apply to a passing off action<\/p>\n
     qua a decision in a rectification proceeding.                                                 I<\/p>\n
     find    nothing         in    the       language         of     the       Act     or      the<\/p>\n
     C.P.C.       in<\/p>\n
                         general             and       in   sections           27      and       11<\/p>\n
     thereof      respectively               in    particular           which        excludes<\/p>\n
     the operation of the principles in a passing off<\/p>\n
     action qua other actions. If the issue of passing<\/p>\n
     off    is    decided         the       judgment        would        operate         as      an<\/p>\n
     issue       estoppel         or    as    res       judicata          in     subsequent<\/p>\n
     proceedings.            Whether the issue of passing off is<\/p>\n
     decided      or    not       is    a    different           matter        altogether.\n<\/p>\n
     That necessarily must be examined when an action is<\/p>\n
     sought       to    be    defended            on    the      principles            of      res<\/p>\n
     judicata and issue estoppel.\n<\/p>\n
     22.           In    Indo-Pharma              Pharmaceutical               Works        Pvt.\n<\/p>\n
     Ltd.     vs. Pharmaceuticals Company of India [1977 BLR<\/p>\n
     73], a learned Single Judge of this Court applied<\/p>\n
     the principle of issue estopped in proceedings under<\/p>\n
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\n                                           21<\/span><\/p>\n
     the said Act.            It is important to note that the<\/p>\n
     learned     Judge    followed       the    judgment          of     the        High<\/p>\n
     Court     of Mysore      in K.R.      Chinnakrishna Shetty                     vs.<\/p>\n
     Ambalal & Company [AIR 1973 Mysore 74]. The learned<\/p>\n
     Judge applied the principles in a case under the Act<\/p>\n
     in   a   passing    off    action.        After      referring          to      the<\/p>\n
     commentaries and judgments on issue estoppel and res<\/p>\n
     judicata     andig   principles        analogous            thereto,            the<\/p>\n
     learned judge observed as under:\n<\/p>\n
              The third decision is of the High Court of
\n          Mysore    viz.      K.    R.   Chinnakrishna            Setty        v.
\n          Ambal & Co. [(1973) A.I.R. Mys. 74]. This<\/p>\n
          was also a trade mark action in which it was<\/p>\n
          held that the decision given in the earlier
\n          proceedings between the same parties with
\n          regard    to    registration          of   the      trade        mark<\/p>\n
          operated       as   res    judicata        in   a     proceeding
\n          under s. 105. The plaintiffs in the appeal
\n          before the Mysore High Court were Sri Ambal<\/p>\n
          & Co., Madras, a registered firm carrying on
\n          business in manufacture and sale of snuff.<\/p><\/blockquote>\n
          The suit was instituted by the plaintiffs
\n          against the defendants under s. 105 of the
\n          said Act for an injunction restraining the
\n          defendants          from       using,        exhibiting              or
\n          advertising by themselves or through their
\n          servants or agents or others the offending<\/p>\n
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\n                                         22<\/span><\/p>\n
     trade mark        Sri Andal Snuff                    or      Sri Andal<\/p>\n
     Officers       Snuff          or    any        other        colourable
\n     imitation        of     the        plaintiffs               registered<\/p>\n
     trade     mark         Sri    Andal           Snuff:         and       from
\n     trading under the name and style of                                      Sri
\n     Andal & Co.            or any other name and style<\/p>\n
     which    was     a     colourable          imitation              of     the
\n     plaintiffs       trading style                 Sri Ambal & Co.
\n     Earlier       defendants            No.1          had       filed          an<\/p>\n
     application before the Registrar of Trade<\/p>\n
     Andal<\/p>\n
     Marks for registration of their mark
\n                and        the     Assistant             Registrar
\n                                                                              Sri
\n                                                                              had<\/p>\n
     allowed the said application holding that
\n     the    mark      Sri    Andal           was      not      deceptively
\n     similar to the plaintiffs                        trade mark              Sri<\/p>\n
     Ambal     and therefore s. 12(l) of the said
\n     Act was not contravened. The objections of<\/p>\n
     the plaintiffs in the notice of opposition
\n     to the application had been over-ruled by<\/p>\n
     the Assistant Registrar. Aggrieved by the
\n     said order of the Assistant Registrar, the
\n     plaintiffs had filed the appeal, which was
\n     allowed by a single Judge and the decision<\/p>\n
     of the single Judge confirmed in the Letters
\n     Patent     Appeal        by    a        division           Bench         and
\n     subsequently by the Supreme Court. In the
\n     suit    counsel       for     the       defendants            tried        to
\n     urge the contentions which are indicated in
\n     para 6 of the report. The Court held that
\n     the decision in the matter of the trade mark
\n     application and the plaintiffs                              opposition<\/p>\n
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\n                                           23<\/span><\/p>\n
           would govern the rights of the parties in<\/p>\n
           the   suit      also   observing       that         if     a    mark
\n           cannot be registered on the ground that it<\/p>\n
           contravenes s. 12(l), then it follows that
\n           the user of the said mark will have to be
\n           restrained also in the suit filed under s.\n<\/p>\n
           105    (see para. 9 of the report). According
\n           to the Mysore High Court, the decision given
\n           in the earlier proceedings must operate as<\/p>\n
           res judicata at the subsequent stage when a<\/p>\n
           suit is filed and it sought support for the
\n           view in decision of the Supreme Court in Raj<\/p>\n
           Lakshmi        Dasi    vs.     Banamali         Sen<\/a>       [(1953)
\n           A.I.R.S.C.33].          Thus     the       principle                was
\n           applied although the earlier decision was<\/p>\n
           not one in a suit and, therefore, the same
\n           could not be brought within the four corners<\/p>\n
           of s.11 of the Code of Civil Procedure.\n<\/p>\n
     23.         Dr. Tulzapurkar submitted that the courts<\/p>\n
     are   reluctant        to    apply    the      principle             of     issue<\/p>\n
     estoppel in passing off cases on the basis of a<\/p>\n
     decision rendered in proceeding under the Act such<\/p>\n
     as for rectification. Dr. Tulzapurkar relied upon<\/p>\n
     the commentary in Narayana Trade Marks and Passing<\/p>\n
     Off, 3rd Edition page 712 para 1489 and the judgment<\/p>\n
     of a learned Single Judge of the Delhi High Court in<\/p>\n
     the   case      of     Hindustan      Pencils          Pvt.          Ltd.       vs.<\/p>\n
                                                  ::: Downloaded on – 09\/06\/2013 15:09:50 :::<\/span>
\n                                            24<\/span><\/p>\n
     Premchand Gupta, [1985 PTC 33] to contend that there<\/p>\n
     are difficulties in the application of the doctrine<\/p>\n
     of res judicata on various grounds including that<\/p>\n
     issues which have to be determined at one time may<\/p>\n
     cease to operate at another time.\n<\/p>\n
     24.        That there may be difficulties in applying<\/p>\n
     the principles of res judicata and issue estoppe1 in<\/p>\n
     a passing off action does not preclude the operation<\/p>\n
     of the principles.              It is one thing to say that<\/p>\n
     there may be difficulties in a given case in the<\/p>\n
     application      of     these   principles           to   a    passing          off<\/p>\n
     action    and    it     is   another       thing     to     say      that       the<\/p>\n
     principles       do    not   apply     to    passing          off     actions.\n<\/p>\n
     Neither    the    commentary         nor    the      judgment         suggests<\/p>\n
     that the principles of resjudicate and passing off<\/p>\n
     do not apply to passing off actions.                           They merely<\/p>\n
     express    difficulties         in    the    application             of     these<\/p>\n
     principles.\n<\/p>\n
     25.        Dr.        Tulzapurkar         then       relied         upon        the<\/p>\n
     judgment   of the        Supreme Court            in National             Sewing<\/p>\n
     Thread    Co.    v.    James    Chadwick         &   Bros<\/a>      [(1953)         SCR<\/p>\n
     1028].     The        respondent     in     that     case      started          the<\/p>\n
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\n                                               25<\/span><\/p>\n
     passing    off    action       in    the        District          Court         which<\/p>\n
     failed on the ground that the evidence offered on<\/p>\n
     their behalf was meager and they failed in proving<\/p>\n
     that     there    was        any    probability              of      purchasers<\/p>\n
     exercising ordinary caution being deceived in buying<\/p>\n
     the defendants goods under the impression that they<\/p>\n
     were the plaintiffs            goods.          The appellants made an<\/p>\n
     application to the Registrar of Trade Marks for the<\/p>\n
     registration of their mark in respect whereof the<\/p>\n
     passing off action had been filed.                         The respondents<\/p>\n
     opposed    the     same.           The        Registrar        came        to      the<\/p>\n
     conclusion that the appellant s mark was likely to<\/p>\n
     deceive     and        cause       confusion.             The        appellants<\/p>\n
     preferred an appeal against the order of this Court<\/p>\n
     which    allowed       the    appeal.            In     the       respondent s<\/p>\n
     Letters    Patent      Appeal       the       Division       Bench        of     this<\/p>\n
     Court set aside the judgment and restored the order<\/p>\n
     of the Registrar.             The Supreme Court dismissed the<\/p>\n
     appeal    holding      that    the       appellants          had      failed         to<\/p>\n
     discharge the onus that rested heavily on them to<\/p>\n
     prove    that    the    trade      mark        which     they       wanted         the<\/p>\n
     Registrar to register was not likely to deceive or<\/p>\n
     cause confusion.         In paragraph 24 the Supreme Court<\/p>\n
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\n                                     26<\/span><\/p>\n
     held as under:\n<\/p>\n
           24. The learned counsel for the appellants<\/p>\n
           contended that the question whether his
\n           clients trade mark was likely to deceive or
\n           cause confusion had been concluded by the
\n           earlier judgment of the Madras High Court in
\n           the passing off action and already referred<\/p>\n
           to in an early part of the judgment. It is
\n           quite clear that the onus in a passing off
\n           action rests on a plaintiff to prove whether
\n           there is likelihood of the defendant s goods
\n           being passed off as the goods of the
\n           plaintiffs. It was not denied that the<\/p>\n
           general get up of the appellants trade mark
\n           is different from the general get up of the
\n           respondents trade mark. That being so, it<\/p>\n
           was held by the Madras High Court in the
\n           passing off action that on the meagre
\n           material placed on record by the plaintiffs<\/p>\n
           they   had   failed   to  prove   that   the
\n           defendants goods could be passed off as the
\n           goods of the plaintiffs. The considerations
\n           relevant in a passing off action are
\n           somewhat different than they are on an
\n           application made for registration of a mark<\/p>\n
           under the Trade Marks Act and that being so
\n           the decision of the Madras High Court
\n           referred to above could not be considered as<\/p>\n
           relevant on the questions that the Registrar
\n           had to decide under the provisions of the
\n           Act.\n<\/p><\/blockquote>\n
     26.        The   Supreme     Court    did       not       apply          the<\/p>\n
     principles in the facts of that case. However, the<\/p>\n
     judgment does not hold that the principles of res<\/p>\n
     judicata   and   issue     estoppel   are       inapplicable               to<\/p>\n
     passing off actions. Nor do I read the judgment as<\/p>\n
     having   impliedly   overruled       the    judgment           of      this<\/p>\n
     Court in Indo Pharmaceutical Works Pvt. Ltd.\n<\/p>\n
     27.        Dr. Tulzapurkar submitted that passing off<\/p>\n
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\n                                            27<\/span><\/p>\n
     is a continuous cause of action.                    The judgment in a<\/p>\n
     previous proceeding therefore would not operate as<\/p>\n
     res-judicata      in       subsequent      proceedings.            Nor       would<\/p>\n
     the    principle       of     issue       estoppel        be      applicable<\/p>\n
     thereto.\n<\/p>\n
     28.        I am unable to accept these propositions<\/p>\n
     stated so broadly. That would depend upon the facts<\/p>\n
     and circumstances of the case.\n<\/p>\n
                       ig                            If for instance,the<\/p>\n
     facts in the subsequent proceeding are the same or<\/p>\n
     no more than the facts in the proceeding in which<\/p>\n
     the judgment has been delivered and the issue of<\/p>\n
     passing off has been considered therein, I see no<\/p>\n
     reason why the principles of res judicata and issue<\/p>\n
     estoppel cannot apply merely because the decision is<\/p>\n
     in    respect    of    a    cause    of     action      which        is      of    a<\/p>\n
     continuing nature.            The mere fact that the cause of<\/p>\n
     action     is     a        continuous        one       would          not         be<\/p>\n
     determinative of the question.                 This would depend on<\/p>\n
     the facts of each case.                    Thus, Dr. Tulzapurkar s<\/p>\n
     reliance upon the judgment of the Supreme Court in<\/p>\n
     Bengal Waterproofing Ltd. vs. Bombay Waterproofing<\/p>\n
     Mfg.     Co.    [1997(1)       SCC    99]     in      support           of      his<\/p>\n
     submission that passing off furnishes a continuous<\/p>\n
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\n                                               28<\/span><\/p>\n
     cause of action is of no assistance in this regard.\n<\/p>\n
     29.         This brings me to the said judgment of the<\/p>\n
     Supreme Court in Khoday Distilleries Ltd. vs. Scotch<\/p>\n
     Whisky Association & Ors.<\/a> [(2008) 10 SCC 723 = 2008<\/p>\n
     (37) PTC 413] on the basis of which this Chamber<\/p>\n
     Summons has been taken out.\n<\/p>\n
     30.         I will refer to the facts leading to the<\/p>\n
     filing of the appeal before the Supreme Court from<\/p>\n
     the judgment itself, for Mr. DeVitre submitted that<\/p>\n
     the Supreme Court had itself noticed certain facts<\/p>\n
     and that the decision ultimately must be seen in the<\/p>\n
     light thereof.\n<\/p>\n
     (A)         Plaintiff no.1 and the defendant in this<\/p>\n
     suit     were        the     respondent          and        the        appellant<\/p>\n
     respectively         before       the    Supreme        Court.             I     will<\/p>\n
     however refer to the parties as they are arrayed in<\/p>\n
     this suit.       The defendant filed an application for<\/p>\n
     registration         of    its    mark        PETER    SCOT         before         the<\/p>\n
     Registrar       of        Trade     Marks,      who       was       the        third<\/p>\n
     respondent in the appeal before the Supreme Court.\n<\/p>\n
     The application was accepted and the defendant was<\/p>\n
     allowed to proceed with the advertisement subject to<\/p>\n
     the    condition      that        the   mark    would        be     treated          as<\/p>\n
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\n                                        29<\/span><\/p>\n
     associated    with     another    mark.         No    opposition             was<\/p>\n
     filed by the plaintiff in the proceeding initiated<\/p>\n
     by the defendant for registration of the trade mark.\n<\/p>\n
     The   defendant s      trade     mark    was     registered.                 The<\/p>\n
     plaintiffs came to know of the same on 20.9.1974.\n<\/p>\n
     The   plaintiffs        however        filed      application                for<\/p>\n
     rectification on 21.4.1986.             The Supreme Court noted<\/p>\n
     the fact that the present suit had been filed for<\/p>\n
     passing off and that the same was pending.                                   The<\/p>\n
     defendant     showed     cause     to     the        application             for<\/p>\n
     rectification.\n<\/p>\n
     (B)         The following issues framed by the third<\/p>\n
     respondent were noted by the Supreme Court:\n<\/p>\n
                    Several issues were framed by the 3rd
\n                 respondent in the said proceedings which were<\/p>\n
                 as under:\n<\/p><\/blockquote>\n
                  (1) Whether the applicants                    are        persons
\n                     aggrieved under Section 56?\n<\/p><\/blockquote>\n
                 (2) Whether the application for rectification<\/p>\n
                     is not maintainable due to any misjoinder
\n                     of the applicants?\n<\/p><\/blockquote>\n
                 (3)     Whether   the  impugned  mark  was   not
\n                       distinctive of the goods of the registered
\n                       proprietors at the commencement of the
\n                       rectification proceedings?\n<\/p><\/blockquote>\n
                 (4)      Whether   the    impugned   registration
\n                       contravenes Section 11 at the commencement
\n                       of rectification proceedings? And<\/p>\n
                 (5) Whether the mark is liable to be rectified
\n                     and if so, in what manner?<\/p><\/blockquote>\n
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\n                                          30<\/span><\/p>\n
                  It is pertinent to note that the Supreme<\/p>\n
     Court in paragraph 20 of the Judgement noted that in<\/p>\n
     support    of      their    application      the       plaintiffs             had<\/p>\n
     raised    before     the    third   respondent           the      following<\/p>\n
     grounds:\n<\/p>\n
           (1) The mark is not distinctive.\n<\/p><\/blockquote>\n
           (2) It was not capable of distinguishing<\/p>\n
               itself as the goods of the appellant.\n<\/p><\/blockquote>\n
           (3) The use of the mark is likely to deceive
\n               or confuse.\n<\/p><\/blockquote>\n
           (4) Non-user of the mark.\n<\/p><\/blockquote>\n
     The plaintiffs succeeded only on the third ground.\n<\/p>\n
     (C)          The   learned      Judges    noted       that       they       were<\/p>\n
     primarily concerned with issue no.4 above, which was<\/p>\n
     dealt with by the third respondent in detail.                                 The<\/p>\n
     third respondent held that the mark had been used<\/p>\n
     deceptively for a long time and although there was<\/p>\n
     an unexplained and inexcusable delay on the part of<\/p>\n
     the      plaintiff         in    filing       the         rectification<\/p>\n
     application, the defendant had failed to establish<\/p>\n
     its   plea    of    acquiescence\/delay           and       the      plea        of<\/p>\n
     deceptive element in the impugned mark had not been<\/p>\n
     displaced or rebutted by evidence of the defendant.\n<\/p>\n
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\n                                                      31<\/span><\/p>\n
     (D)           Mr.       DeVitre           placed       strong          reliance          upon<\/p>\n
     paragraph          10    of         the    judgment          which          quotes         the<\/p>\n
     finding       of        the     third           respondent             regarding           the<\/p>\n
     plaintiff s plea that the impugned registration is<\/p>\n
     contrary to Section 11 of the Trade & Merchandise<\/p>\n
     Marks Act, 1958.                    He relied upon the same for the<\/p>\n
     reason    that          the    quotation             refers       to    two      factors,<\/p>\n
     namely       the<\/p>\n
                         presence              of    the        word        SCOT        in      the<\/p>\n
     defendants mark               PETER SCOT              and the presence of the<\/p>\n
     slogan\/descriptive words namely                              Distilled from the<\/p>\n
     Finest Malt and Blended with the Choicest Whiskies<\/p>\n
     by the Scotch Experts under Government Supervision .\n<\/p>\n
     In    fact    these           two    factors          as    well       as     the       third<\/p>\n
     factor,       namely          the     box        or     carton          used       by      the<\/p>\n
     defendant containing the emblem of the Rampant Lion<\/p>\n
     is referred to more than once in the judgment. It is<\/p>\n
     sufficient in this regard to refer to paragraph 18<\/p>\n
     of the judgment which reads as under:\n<\/p>\n
                    18.       It     is        not    in    dispute          that       the
\n                   appellant manufactures whisky under the
\n                   brand name              Peter Scot . The box of the
\n                   carton contains the emblem of                                 Rampant
\n                   Lion . It is a malt whisky. On one side
\n                   of        the    box        it    is     stated           PRIDE        OF<\/p>\n
                                                             ::: Downloaded on – 09\/06\/2013 15:09:50 :::<\/span>
\n                                                32<\/span><\/p>\n
                   INDIA         and     on         the        other           Khoday<\/p>\n
                   Distilleries          Private            Limited .            Apart
\n                   from the said information on the right<\/p>\n
                   hand side of the label it is stated
\n                    Distilled          from    the         Finest         Malt       and
\n                   Blended with the Choicest Whiskies by<\/p>\n
                   Scotch         Experts            under              Government
\n                   Supervision .\n<\/p>\n
     (E).         The      application              for        rectification                 was<\/p>\n
     allowed.\n<\/p>\n
                    The defendant s appeal under Section 109<\/p>\n
     of   the     Act    was     dismissed          by       the      learned          Single<\/p>\n
     Judge.       The Supreme Court has quoted the observation<\/p>\n
     of     the     learned        Single            Judge            rejecting              the<\/p>\n
     defendant s         contention           based        on      the       plaintiff s<\/p>\n
     acquiescence,         the    absence           of     any      evidence           having<\/p>\n
     being led by the defendant and its not having cross-\n<\/p>\n
     examined the plaintiff s witness who had filed the<\/p>\n
     affidavit       in     support           of         the       application               for<\/p>\n
     rectification and the finding that the trade mark<\/p>\n
     had been adopted to take advantage of the goodwill<\/p>\n
     developed      by     the    members       of        the      plaintiff.                The<\/p>\n
     Supreme      Court     also       noted        the      observation             of      the<\/p>\n
     learned Judge criticising the affidavits filed on<\/p>\n
     behalf of the plaintiff but holding that the same<\/p>\n
     did not help the defendant to avoid rectification.\n<\/p>\n
                                                          ::: Downloaded on – 09\/06\/2013 15:09:50 :::<\/span>
\n                                      33<\/span><\/p>\n
     (F)      The     judgment      then     refers           to       certain<\/p>\n
     observations    of    the   Division   Bench        of     the      Madras<\/p>\n
     High Court dismissing the defendant s appeal against<\/p>\n
     the order and judgment of the learned Single Judge.\n<\/p>\n
     Mr.DeVitre placed reliance on the quotation from the<\/p>\n
     judgment of the Madras High Court in paragraph 13 of<\/p>\n
     the judgment.        Paragraph 13 of the judgment of the<\/p>\n
     Supreme Court reads as under:\n<\/p>\n
               Feeling aggrieved, an intra-court appeal<\/p>\n
              was    preferred      thereagainst    by    the
\n              appellant. A Division Bench of the High
\n              Court, as noticed hereinbefore, dismissed
\n              the said appeal. The Division Bench noticed
\n              at some length the submissions made by the
\n              parties to inter alia hold:\n<\/p><\/blockquote>\n
               We have carefully considered the abovesaid
\n              submissions made by the counsel on either<\/p>\n
              side. In our considered view, the use of
\n              the device Lion Rampant and the abovesaid
\n              description     especially    the   description
\n               Distilled from the Finest Malt and Blended
\n              with   the    Choicest   Whiskies   by   Scotch<\/p>\n
              Experts under Government Supervision         is
\n              definitely intended to lead the consumers
\n              to believe that the whisky manufactured by
\n              the appellant is Scotch whisky. Though
\n              specific averments as abovesaid have been
\n              made in the affidavit on Ian Barclay, the
\n              same   have    not   been   rebutted   by   the<\/p>\n
              appellant by adducing rebuttal evidence.
\n              The appellant has also not chosen to cross-
\n              examine    Ian   Barclay   on   the   averments
\n              contained in the affidavit. Therefore, we
\n              are of the considered view that both the
\n              third respondent and the learned Single
\n              Judge have considered all the relevant
\n              materials available on record and have
\n              exercised their discretion properly and as
\n              such we do not find any reason to interfere
\n              with the judgment of the learned Single
\n              Judge.\n<\/p><\/blockquote>\n
     (G).     The judgment then proceeds to record the<\/p>\n
                                            ::: Downloaded on – 09\/06\/2013 15:09:50 :::<\/span>
\n                                         34<\/span><\/p>\n
     submissions    on    behalf        of     the      learned           Counsel<\/p>\n
     appearing before the Supreme Court.                    As Mr. DeVitre<\/p>\n
     placed considerable reliance upon the submissions of<\/p>\n
     the counsel both on behalf of the appellant and the<\/p>\n
     respondent    in   support    of    his    contention             that       the<\/p>\n
     issues raised in the suit were raised before the<\/p>\n
     Supreme Court and decided by the Supreme Court, it<\/p>\n
     is necessary to set the same out.\n<\/p>\n
               14.   Mr  R.F.   Nariman,  learned    Senior<\/p>\n
              Counsel   appearing   on   behalf   of    the
\n              appellant, submitted:\n<\/p>\n
              1. Respondent 3 as also the High Court
\n              committed a serious error insofar as they
\n              failed to take into consideration that in
\n              view of the statement made in the affidavit<\/p>\n
              affirmed   by    Ian   Barclay    that    the
\n              respondents were aware of infringement of<\/p>\n
              the mark as far back in 1974 but as no
\n              action was taken in relation thereto till
\n              1986, the application for rectification was
\n              barred under the principles of waiver and
\n              acquiescence.\n<\/p>\n
                 2. Long delay of 14 years caused in
\n              filing     the   said     application   for
\n              rectification should have been held to be
\n              fatal having regard to the fact that the
\n              same   caused  immense   prejudice   to the
\n              appellant as in the meantime, the sale of<\/p>\n
              the appellant had gone many folds.\n<\/p>\n
              3.   Acquiescence  on   the   part of  the
\n              respondents would amount to waiver, if not
\n              abandonment, of their right as any order
\n              passed for rectification of the mark being
\n              unconscionable and inequitable, the same
\n              should not have been allowed.\n<\/p>\n
              4. The word    Peter Scot   allegedly being
\n              evolved of Scotland cannot be held to be a
\n              subject-matter of passing off as:\n<\/p>\n
                                               ::: Downloaded on – 09\/06\/2013 15:09:50 :::<\/span>
\n                          35<\/span><\/p>\n
      (a) Purchasers of the same are discerning;\n<\/p>\n
      (b) They are aware of the brand which they
\n          would be purchasing;\n<\/p>\n
      (c)    Rich and wealthy people would only
\n            ordinarily purchase goods like Scotch
\n            whisky and they being literate cannot
\n            possibly be pulled by the word Scot<\/p>\n
            knowing that they are purchasing Scotch
\n            whisky, particularly in view of the
\n            fact that on the label as also on the
\n            box,    it   has    categorically    been
\n            mentioned that the product is a PRIDE
\n            OF   INDIA   and  is    manufactured   at<\/p>\n
            Bangalore in India.\n<\/p>\n
      5. The Division Bench committed a serious
\n      error insofar as it failed to take into
\n      consideration the aforementioned arguments
\n      of the appellant, although categorically<\/p>\n
      noticed by it, so far as if the label is to
\n      be looked at in its entirety, the emblem of
\n      Rampant Lion with the words Distilled from
\n      the Finest Malt and Blended with the
\n      Choicest Whiskies by Scotch Experts under
\n      Government Supervision   must be read with<\/p>\n
      the word PRIDE OF INDIA and the names of
\n      the appellant and the fact that it was<\/p>\n
      manufactured at Bangalore.\n<\/p>\n
      6. The Division Bench of the High Court
\n      committed a serious error insofar as it
\n      failed to take into consideration that<\/p>\n
      having regard to the provisions contained
\n      in   Section   26    of   the   Geographical
\n      Indications   of   Goods   (Regulation   and
\n      Protection) Act, 1999 (for short the 1999
\n      Act ), the rights of trade marks which had
\n      been acquired through use in good faith
\n      were protected and thereby committed a<\/p>\n
      serious error in not allowing the appellant
\n      to raise the said contention, on the
\n      premise that the same was being raised for
\n      the first time before it.\n<\/p>\n
      15. Mr Ashok H. Desai, learned Senior
\n      Counsel appearing on behalf of Respondents
\n      1 and 2, on the other hand submitted:\n<\/p>\n
      (i) The findings of fact arrived at by
\n      Respondent 3 and as affirmed by the learned<\/p>\n
                              ::: Downloaded on – 09\/06\/2013 15:09:50 :::<\/span>
\n                        36<\/span><\/p>\n
      Single Judge and the Division Bench of the<\/p>\n
      High Court should not be interfered with as
\n      they cannot be characterised as extraneous
\n      or perverse being based on no evidence.\n<\/p>\n
      (ii) An application for rectification is
\n      the only remedy in respect of a registered
\n      trade mark which is likely to deceive or
\n      cause   confusion   for   the   purpose  of
\n      maintaining the purity of register of trade<\/p>\n
      marks wherefor the extended concept of
\n      passing-off action should be recognised.\n<\/p>\n
         (iii) The basic distinction between the
\n      trade mark infringement and passing-off<\/p>\n
      action is that whereas the former flows
\n      from a statutory right, the latter is
\n      action in tort being in the realm of unfair<\/p>\n
      competition.\n<\/p>\n
      (iv) Courts in India and abroad having
\n      consistently protected Scotch whisky, any<\/p>\n
      mark carrying words such as Scot, Glen and
\n      Highland should not be allowed to continue.
\n      The appellant by using its product as Peter
\n      Scot, which is an Indian whisky, intended
\n      to be seen as a manufacturer of Scotch
\n      whisky, as would be evident from the<\/p>\n
      affidavit of Mr Peter J. Warren.\n<\/p>\n
      (v) If there is a fraud at inception in
\n      adoption of the name, the court should
\n      discourage such fraud in sternest way. It
\n      is not correct to contend that the delay,
\n      if any, on the part of the respondents<\/p>\n
      would amount to acquiescence or waiver as
\n      the purpose of filing an application for
\n      rectification is to maintain the purity of
\n      register and public interest.\n<\/p>\n
      (vi) There is significant evidence in the
\n      present    case   as    regards   confusion<\/p>\n
      concerning whisky bearing the name of Peter
\n      Scot which having not been controverted or
\n      rebutted would clearly go to show that any
\n      ordinary consumer would tend to believe
\n      that Peter Scot is a Scotch and not an
\n      Indian whisky.\n<\/p>\n
      (vii) The label used by the appellant
\n      clearly suggests that it is a Scotch whisky
\n      and not of Indian origin.\n<\/p>\n
      (viii) The provisions of the 1999 Act are
\n      not    applicable   to    the   facts and
\n      circumstances of the present case.\n<\/p>\n
                            ::: Downloaded on – 09\/06\/2013 15:09:50 :::<\/span>
\n                                           37<\/span><\/p>\n
     31.          At the outset of the consideration of the<\/p>\n
     question as to whether the issues in this suit have<\/p>\n
     been    so   decided      in   the   judgment        of      the      Supreme<\/p>\n
     Court, as to result in the dismissal of the suit, it<\/p>\n
     is necessary to consider what the Supreme Court in<\/p>\n
     fact   held.       That    the   judgment       noted        the      various<\/p>\n
     submissions advanced on behalf of the parties is not<\/p>\n
     relevant.\n<\/p>\n
                       What is relevant is what was in fact<\/p>\n
     decided.\n<\/p>\n
     32.          I do not find anything in the judgment that<\/p>\n
     leads to the conclusion that the case of passing off<\/p>\n
     in the present suit was in fact decided against the<\/p>\n
     plaintiff.\n<\/p>\n
                  It    is     important       to    note         that         after<\/p>\n
     referring to the submissions of the learned Counsel<\/p>\n
     the    Supreme     Court    in   paragraph        17     observed           that<\/p>\n
     although a large number of issues had been raised by<\/p>\n
     the learned Counsel the principal issues which arose<\/p>\n
     for their consideration were only two.                      Paragraph 17<\/p>\n
     of the judgment reads thus:\n<\/p>\n
                   17. Although a large number of issues have
\n                  been raised by the learned counsel for the
\n                  parties, we are of the opinion that the
\n                  principal issues which arise for our<\/p>\n
                                                ::: Downloaded on – 09\/06\/2013 15:09:50 :::<\/span>
\n                                               38<\/span><\/p>\n
                 consideration are:\n<\/p><\/blockquote>\n
                 (i) Whether the delay on the part of
\n                 Respondents 1 and 2 in filing the
\n                 application for rectification would amount<\/p>\n
                 to acquiescence and\/or waiver?\n<\/p><\/blockquote>\n
                 (ii) Whether Respondent 3 as also the
\n                 learned Single Judge and the Division Bench<\/p>\n
                 of the High Court have failed to apply the
\n                 correct tests and, thus, misdirected
\n                 themselves in law?\n<\/p><\/blockquote>\n
     After    setting        out        the   fact       of     the       case,         the<\/p>\n
     observations of respondent no.3, the learned Single<\/p>\n
     Judge and the Division Bench of Madras High Court<\/p>\n
     and the submissions of Counsel, the Supreme Court in<\/p>\n
     paragraph        21    crystalised            the    question            for       its<\/p>\n
     decision as under:\n<\/p>\n
             21. The principal question which arises for<\/p>\n
         consideration             is    as    to    whether         the      term
\n             Scot     would itself be a sufficient ground
\n         to    opine        that    the       mark       Peter       Scot         is<\/p>\n
         deceptive          or     confusing.        Indisputably               the
\n         onus of proof would be upon the respondents.<\/p><\/blockquote>\n
         The question arises is as to whether they
\n         have discharged the same or not.                            (emphasis<\/p>\n
         applied)<\/p>\n
                 In        this     paragraph            the     Supreme            Court<\/p>\n
     confined the consideration whether the term                                    SCOT<\/p>\n
     would itself be a sufficient ground to opine that<\/p>\n
     the defendant s mark                PETER SCOT            is deceptive or<\/p>\n
                                                     ::: Downloaded on – 09\/06\/2013 15:09:50 :::<\/span>
\n                                             39<\/span><\/p>\n
     confusing.         In other words, in this paragraph the<\/p>\n
     Supreme      Court    did     not     frame       the      question           as      to<\/p>\n
     whether the other two factors or the three factors<\/p>\n
     together viz. the mark                PETER SCOT , the device of<\/p>\n
     the    Rampant        Lion      and       the        descriptive                words<\/p>\n
     constitute passing off \/ are likely to deceive or<\/p>\n
     confuse.\n<\/p>\n
     33.          Mr.<\/p>\n
                          DeVitre        however        submitted            that        the<\/p>\n
     Supreme Court while narrating the facts having noted<\/p>\n
     all    three       factors         must     be       presumed            to       have<\/p>\n
     considered whether the combination thereof is likely<\/p>\n
     to deceive or confuse.\n<\/p>\n
     34.          I do not agree.           Firstly, the judgment must<\/p>\n
     be    read    for     what     it     states        and       not       what        may<\/p>\n
     logically      follow from it. In fact, as noted above<\/p>\n
     after setting out the submissions of Counsel, the<\/p>\n
     Supreme Court expressedly observed that it was of<\/p>\n
     the   opinion       that     the    principal           issues         for      their<\/p>\n
     consideration were only two and specified the same.\n<\/p>\n
     In    paragraph       59     the     Supreme          Court         framed          the<\/p>\n
     question again as follows:\n<\/p>\n
                   59.   Another  principal  question which
\n                  arises for consideration is as to whether<\/p>\n
                                                      ::: Downloaded on – 09\/06\/2013 15:09:50 :::<\/span>
\n                                        40<\/span><\/p>\n
                 the use of the term Scot would itself be<\/p>\n
                 a sufficient ground to form an opinion that
\n                 the mark    Peter Scot    is deceptive or
\n                 confusing. Indisputably, the onus of proof
\n                 therefor would be on the respondents.\n<\/p><\/blockquote>\n
                 Whether they have discharged the said onus
\n                 is the question?\n<\/p><\/blockquote>\n
     Thus, once again the Supreme Court did not state<\/p>\n
     that   it   would   decide   the       question         of      the      three<\/p>\n
     factors taken together being deceptive or confusing.\n<\/p>\n
     35.
\n                 Mr. DeVitre however submitted that I ought<\/p>\n
     to presume that the Supreme Court intended to and<\/p>\n
     infact did hold that the three factors viz. the mark<\/p>\n
      PETER   SCOT ,     the   label    with      the      device          of     the<\/p>\n
     Rampant Lion      and the legend taken independently or<\/p>\n
     together would be deceptive or confusing.                           He said<\/p>\n
     this was clear from a combined reading of paragraph<\/p>\n
     63, 77, 80 (part) and 82. As strong reliance was<\/p>\n
     placed on these paragraphs,            I will set them out in<\/p>\n
     their entirety.\n<\/p>\n
                  63. The law in this regard has been
\n                 specifically stated in Kerly s Law of Trade
\n                 Marks and Trade Names, 13th Edn., p.\n<\/p>\n
                      600 in the following terms:\n<\/p>\n
                  (3)   If   the   goods  are  expensive   or
\n                 important to the purchasers and not of a
\n                 kind usually selected without deliberation,
\n                 and   the    customers  generally   educated
\n                 persons, these are all matters to be
\n                 considered.\n<\/p>\n
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\n                        41<\/span><\/p>\n
      77. Where the class of buyers, as noticed
\n      hereinbefore, is quite educated and rich,
\n      the test to be applied is different from<\/p>\n
      the   one   where  the   product  would   be
\n      purchased by the villagers, illiterate and
\n      poor. Ordinarily, again they, like tobacco,
\n      would purchase alcoholic beverages by their
\n      brand name. When, however, the product is
\n      to be purchased both by villagers and town<\/p>\n
          people, the test of a prudent man would
\n      necessarily be applied. It may be true that
\n      the tests which are to be applied in a
\n      country like India may be different from
\n      the tests either in a country of England,<\/p>\n
      the United States of America or Australia.\n<\/p>\n
      80. Referring to Kerly on Trade Marks,
\n      which we have referred to hereinbefore, the
\n      learned Judge said: [Bollinger (No. 2)
\n      case848, All ER p.      566 E-F]<\/p>\n
      And it has been said that regard should not
\n      be had to unusually stupid people, fools
\n      or idiots . Moreover,     if the goods are
\n      expensive and not of a kind usually
\n      selected   without   deliberation   and   the<\/p>\n
      customers generally educated persons these
\n      are all matters to be considered . (That is
\n      also a quotation from the same book.)<\/p>\n
      Various   other   judicial   statements   are
\n      collected in the judgment of the Assistant-\n<\/p>\n
      Registrar   in   George    Angus   &    Co. s
\n      Application, Re49, RPC at pp. 31-32, to
\n      which I was referred.\n<\/p>\n
      &&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&<\/p>\n
      82. But then we are concerned with the
\n      class of buyer who is supposed to know the
\n      value of money, the quality and content of<\/p>\n
      Scotch whisky. They are supposed to be
\n      aware of the difference of the process of
\n      manufacture, the place of manufacture and
\n      its origin. Respondent 3, the learned
\n      Single Judge as also the Division Bench of
\n      the High Court, therefore, failed to notice
\n      the   distinction,   which  is   real   and
\n      otherwise borne out from the precedents
\n      operating in the field. (See Kerly s Law of
\n      Trade Marks and Trade Names, 13th Edn., p.\n<\/p>\n
           600.)<\/p>\n
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\n                                                     42<\/span><\/p>\n
     36.          I do not see how these observations support<\/p>\n
     such    a        wide        proposition.            I       do      not        read        the<\/p>\n
     commentary from Kerly s Law of Trade Marks and Trade<\/p>\n
     Names cited in paragraph 63 as suggesting that there<\/p>\n
     can be no passing off in respect of goods that are<\/p>\n
     expensive or important to the purchasers.                                         There is<\/p>\n
     no absolute proposition to this effect.                                         They are,<\/p>\n
     as     noted          in
\n                            ig     the     commentary,                 matters            to       be<\/p>\n
     considered.            These matters however are not decisive.\n<\/p>\n
     37.          Nor        does    the       observation               of     the      Supreme<\/p>\n
     Court       in        paragraph           77        support           such         a      wide<\/p>\n
     proposition.            The tests to be applied have been held<\/p>\n
     to be different. I do not however read the judgment<\/p>\n
     as    having          held     as    an     absolute              proposition             that<\/p>\n
     passing off can never occur in respect of products,<\/p>\n
     including Scotch Whisky, purchased by people who are<\/p>\n
     educated and rich.                   These again are but factors,<\/p>\n
     important         factors       to    be       taken         into        consideration<\/p>\n
     alongwith all other facts. To hold otherwise would<\/p>\n
     lead to the absurd result that people at large are<\/p>\n
     entitled         to    infringe       and       pass         off      marks        used       in<\/p>\n
     relation         to    goods        which       are       used       in      respect          of<\/p>\n
     products purchased by the educated and well to do.\n<\/p>\n
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\n                                             43<\/span><\/p>\n
     38.          The observations in paragraphs 80 and 82<\/p>\n
     were relied upon by Mr. DeVitre to suggest that the<\/p>\n
     Supreme Court has held that there can never be a<\/p>\n
     case   of    passing     off     in    respect       of     Scotch         Whisky<\/p>\n
     irrespective       of    the     manner      in     which        the       marks,<\/p>\n
     labels and devices are used.\n<\/p>\n
     39.<\/p>\n
                  The error in this submission arises from<\/p>\n
     selecting portions of the judgment and reading them<\/p>\n
     out of context.           The observations must be read in<\/p>\n
     the context in which they are made.                             The Supreme<\/p>\n
     Court in terms stated that the question that fell<\/p>\n
     for their consideration was whether the use of the<\/p>\n
     term   SCOT       would       itself    be    sufficient            ground         to<\/p>\n
     form   the    opinion         that    the    mark       PETER        SCOT          is<\/p>\n
     deceptive or confusing.                Nowhere in this judgment<\/p>\n
     has the Supreme Court even considered whether the<\/p>\n
     combination       of    the    three    factors        is     deceptive            or<\/p>\n
     confusing.        On the other hand this is one of the<\/p>\n
     main questions in the suit.\n<\/p>\n
     40.          In    the         circumstances              Mr.        DeVitre s<\/p>\n
     submission that the judgment of the Supreme Court<\/p>\n
                                                   ::: Downloaded on – 09\/06\/2013 15:09:50 :::<\/span>
\n                                             44<\/span><\/p>\n
     decides the issues raised in the present suit on the<\/p>\n
     question of passing off is rejected.\n<\/p>\n
     41.         The    defendant          has   raised        the       issue         of<\/p>\n
     acquiescence in the present suit in respect of the<\/p>\n
     plaintiffs        case     of    passing      off.            Mr.       DeVitre<\/p>\n
     submitted that the Supreme Court also considered the<\/p>\n
     issues of acquiescence qua passing off alleged by<\/p>\n
     the plaintiff.\n<\/p>\n
     42.         The submission is not well founded.                           I have<\/p>\n
     already held that the Supreme Court did not consider<\/p>\n
     the question regarding the combined effect of the<\/p>\n
     three factors on the question of passing off.                                     If<\/p>\n
     that   be    so   the    finding       of   the     Supreme          Court        of<\/p>\n
     delay, acquiescence and waiver must also be confined<\/p>\n
     to the application for rectification on the basis of<\/p>\n
     the use of the word mark                PETER SCOT           in so far as<\/p>\n
     it includes the word              SCOT . This is in fact clear<\/p>\n
     from   the     observations           of    the     Supreme           Court        I<\/p>\n
     referred to while dealing with the previous issue.\n<\/p>\n
     43.         The Supreme Court has undoubtedly held that<\/p>\n
     it would not be correct to contend that under no<\/p>\n
     circumstances        can        the    principles          of      delay          or<\/p>\n
                                                  ::: Downloaded on – 09\/06\/2013 15:09:50 :::<\/span>
\n                                        45<\/span><\/p>\n
     acquiescence      or    waiver     be    held         to        apply        to<\/p>\n
     rectification      proceedings.             For         instance             in<\/p>\n
     paragraph 32 the Supreme Court has held that the<\/p>\n
     power of the Registrar under Section 56 of the Act<\/p>\n
     is wide, it enables the tribunal to make such order<\/p>\n
     as it may think fit and that when the discretionary<\/p>\n
     jurisdiction      has   been     conferred       on      a      statutory<\/p>\n
     authority, the same although would be required to be<\/p>\n
     considered   on    objective      criteria       but       as    a     legal<\/p>\n
     principal it cannot be said that the delay leading<\/p>\n
     to acquiescence or waiver or abandonment will have<\/p>\n
     no role to play.        What is important to note however<\/p>\n
     is that the Supreme Court considered the question of<\/p>\n
     delay qua the rectification application which was<\/p>\n
     the   original     proceeding      itself.            Even        on       the<\/p>\n
     question of delay per se the Supreme Court observed<\/p>\n
     that whereas      action had been taken by the plaintiff<\/p>\n
     against various others all over the world including<\/p>\n
     in India, who had used the word                 SCOT , no action<\/p>\n
     had been taken against the defendant for the same.\n<\/p>\n
     In paragraph 36 it was noted that if the plaintiff<\/p>\n
     had opposed the registration of the defendant s mark<\/p>\n
     earlier, then the defendant would have known where<\/p>\n
                                             ::: Downloaded on – 09\/06\/2013 15:09:50 :::<\/span>
\n                                        46<\/span><\/p>\n
     it stood, and would have withdrawn its application<\/p>\n
     and started manufacturing whisky of the same quality<\/p>\n
     with a different brand name.            Thus the principles of<\/p>\n
     acquiescence, waiver and abandonment were considered<\/p>\n
     in the context of the rectification application and<\/p>\n
     not in the context of this passing off action.                           I am<\/p>\n
     conscious      of   the   fact   that   in    paragraph            43      the<\/p>\n
     Supreme Court has observed that the rule of waiver<\/p>\n
     of    right    is   expressly    provided       for      in      case        of<\/p>\n
     passing off.        What is important however is that the<\/p>\n
     question of acquiescence or waiver or abandonment<\/p>\n
     was not decided qua passing off actions per se. The<\/p>\n
     Supreme Court applied the principles of acquiescence<\/p>\n
     waiver and abandonment in respect of the application<\/p>\n
     for rectification which was based inter alia upon<\/p>\n
     the    defendants     mark   being      deceptive          or      causing<\/p>\n
     confusion.       The conclusion of the Supreme Court in<\/p>\n
     paragraph 57:\n<\/p>\n
                    We, therefore in the peculiar facts and
\n                   circumstances of this case, are of the
\n                   opinion that the action of the respondents
\n                   is   barred   under   the  principles   of
\n                   acquiescence and\/or waiver<\/p>\n
     is in the context of the rectification application.\n<\/p><\/blockquote>\n
     44.           The judgment of the Supreme Court may apply<\/p>\n
                                             ::: Downloaded on – 09\/06\/2013 15:09:50 :::<\/span>
\n                                              47<\/span><\/p>\n
     to    this    passing      off    action      as       a    precedent.             That<\/p>\n
     however is an entirely different thing from saying<\/p>\n
     that     it    operates      as       res    judicata            or      as      issue<\/p>\n
     estoppel.       There is a fundamental difference of a<\/p>\n
     very vital nature between a judgment operating as<\/p>\n
     res judicata or as an issue estoppel in respect of<\/p>\n
     another proceeding and the judgment operating as a<\/p>\n
     precedent.        In the former case the cause of action<\/p>\n
     itself       would   not    survive          or     be      extinguished               by<\/p>\n
     virtue of the judgment.                     In the latter case the<\/p>\n
     cause    of    action      survives          but      the       issue         of     law<\/p>\n
     decided by the Court operates as a precedent against<\/p>\n
     the party.\n<\/p>\n
     45.           The consequences of the two situations are<\/p>\n
     also different and of a vital nature.                                   Where the<\/p>\n
     judgment      operates      as    a    precedent,            the      avenues          of<\/p>\n
     appeal are always open on the merits of the case as<\/p>\n
     well as on the law applicable thereto.                                This is so<\/p>\n
     even if it is a judgment of the Supreme Court, for<\/p>\n
     while the judgment would be binding on the lower<\/p>\n
     courts as well as on a bench of equal strength of<\/p>\n
     the     Supreme      Court,       theoretically               it       is      always<\/p>\n
     possible for a larger bench of the Supreme Court to<\/p>\n
                                                       ::: Downloaded on – 09\/06\/2013 15:09:51 :::<\/span>
\n                                      48<\/span><\/p>\n
     take a different view.          However, where a judgment<\/p>\n
     operates   as    res   judicata      or    issue        estoppel           this<\/p>\n
     avenue would not be open on the merits of the case<\/p>\n
     and the issues therein.\n<\/p>\n
     46.        The    submissions         that         the         issue           of<\/p>\n
     acquiescence decided by the Supreme Court operates<\/p>\n
     as res judicata or issue estoppel in this suit is<\/p>\n
     therefore rejected.\n<\/p>\n
     47.        In the circumstances the Chamber Summons is<\/p>\n
     dismissed.\n<\/p>\n
                                               ::: Downloaded on – 09\/06\/2013 15:09:51 :::<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court The Scotch Whisky Association vs Khoday India Limited on 7 October, 2009 Bench: S.J. Vazifdar 1 pps IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CHAMBER SUMMONS NO.1783 OF 2008 IN SUIT NO.1729 OF 1987. The Scotch Whisky Association ..Plaintiffs. Vs. Khoday India Limited ig ..Defendants. Dr.Virendra Tulzapurkar […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-187263","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nThe Scotch Whisky Association vs Khoday India Limited on 7 October, 2009 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/the-scotch-whisky-association-vs-khoday-india-limited-on-7-october-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"The Scotch Whisky Association vs Khoday India Limited on 7 October, 2009 - 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