{"id":224132,"date":"2009-01-14T00:00:00","date_gmt":"2009-01-13T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/lowenbrau-ag-another-vs-jagpin-breweries-ltd-another-on-14-january-2009"},"modified":"2016-04-17T20:10:16","modified_gmt":"2016-04-17T14:40:16","slug":"lowenbrau-ag-another-vs-jagpin-breweries-ltd-another-on-14-january-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/lowenbrau-ag-another-vs-jagpin-breweries-ltd-another-on-14-january-2009","title":{"rendered":"Lowenbrau Ag & Another vs Jagpin Breweries Ltd & Another on 14 January, 2009"},"content":{"rendered":"
Delhi High Court<\/div>\n
Lowenbrau Ag & Another vs Jagpin Breweries Ltd & Another on 14 January, 2009<\/div>\n
Author: Sanjiv Khanna<\/div>\n
     CS(OS) NO.1810\/2007          Page No.1\n\n\n\n\n                                                REPORTABLE\n\n*                IN THE HIGH COURT OF DELHI AT NEW DELHI\n\n\n+ I.A. Nos. 11355\/2007 & 13772\/2007 in CS(OS) No. 1810 of 2007\n\n%                          Date of Decision : January 14th , 2009.\n\nLOWENBRAU AG & ANR.                                  .... Plaintiffs.\n\n                               Through Mr. Sudhir Agarwal,\n                               Sr.Advocate with Mr. Hemant Singh,\n                               Ms. Mamta Jha, Mr. Aparajit\n                               Bhattacharya, Ms. Megha Sen & Mr.\n                               Manish K. Mishra, Advocates.\n\n                               VERSUS\n\nJAGPIN BREWERIES LTD. & ANR.                        .... Defendants.\n\n                               Through Mr. Shailen Bhatia & Ms.\n                               Ekta Nayar Saini, Advocates.\n\nCORAM:\n\nHON'BLE MR. JUSTICE SANJIV KHANNA\n\n1.<\/pre>\n
 Whether Reporters of local papers may be<\/p>\n
allowed to see the judgment?\n<\/p>\n
2. To be referred to the Reporter or not ?    YES<\/p>\n
3. Whether the judgment should be reported<\/p>\n
in the Digest ?                               YES<\/p>\n
SANJIV KHANNA, J:\n<\/p>\n<\/p>\n
1.      This Order will dispose of the application for interim<\/p>\n
injunction, I.A. No. 11355\/2007 and the application for vacation of<\/p>\n
the ex parte interim injunction order, IA No.13772\/2007.\n<\/p>\n
      CS(OS) NO.1810\/2007                 Page No.2<\/p>\n
2.      Lowenbrau AG and InBev India International Pvt. Ltd.
\n(hereinafter collectively referred to as the plaintiffs, for short) have
\nfiled the present suit for permanent injunction, rendition of
\naccounts, mandatory injunction in form of delivery up against
\nJagpin Breweries Ltd and Lowenbrau Buttenheim (hereinafter
\ncollectively referred to as the defendants, for short). The plaintiffs
\nclaim exclusive right to use the mark\/word “LOWENBRAU”, device
\nof lion and seek a restraint order against the defendants from
\nusing the mark “LOWENBRAU”, device of lion or any other trade
\nmark or device mark identical or deceptively similar. By an ex
\nparte injunction order dated 3rd October, 2007 the defendants have
\nbeen restrained from manufacturing, selling and advertising under
\nthe mark\/word “LOWENBRAU”, device of lion or any other trade
\nmark\/device mark identical or deceptively similar to the said mark
\nor device.\n<\/p>\n
3.      Lowenbrau A.G., plaintiff no.1 and Lowenbrau Buttenheim,<\/p>\n
defendant no.2 are entities incorporated under the laws of<\/p>\n
Germany. Both of them manufacture beer, which is sold in<\/p>\n
Germany and other countries. The beer manufactured by the<\/p>\n
plaintiff No.1 is sold under the mark\/name “LOWENBRAU” with or<\/p>\n
without other word\/mark, while the beer manufactured by the<\/p>\n
defendant       no.2       is   sold   under   the   mark   “LOWENBRAU<\/p>\n
BUTTENHEIM” along with other words\/marks in Germany and<\/p>\n
other countries.\n<\/p>\n
4.       Both the plaintiff no.1 and the defendant no.2 claim<\/p>\n
substantial turnovers and sales in Germany and other third
\n      CS(OS) NO.1810\/2007          Page No.3<\/p>\n
countries. There is also no dispute that the plaintiff no.1 and<\/p>\n
defendant no.2 are not presently involved in any litigation on the<\/p>\n
right to use the mark\/word “LOWENBRAU” in any country except<\/p>\n
in India. Both parties agree that there was litigation in Germany in<\/p>\n
respect of right to use the mark\/word “LOWENBRAU” which was<\/p>\n
decided more than 100 years back in 1903 in favour of the<\/p>\n
defendant no.2. It was held that the mark\/word “LOWENBRAU”<\/p>\n
cannot be monopolised as there were a number of breweries in<\/p>\n
Germany who had been using the said word\/mark for a long time<\/p>\n
and therefore the mark\/word “LOWENBRAU” cannot be used to<\/p>\n
differentiate beer of one brewery from another.<\/p>\n
5.      Faced with the above factual background, the plaintiffs have
\nbased their claim\/cause on infringement of the registered
\nmark\/word “LOWENBRAU” and their statutory rights under the
\nTrademarks Act, 1999 (hereinafter referred to as the Act, for
\nshort). It may be however noticed that the cause title of the plaint
\nstates that the suit of the plaintiffs is both for infringement and
\npassing off.\n<\/p>\n
6.      The plaintiff No.1’s mark\/word “Lowenbrau Export – Bier”<\/p>\n
was registered in 1960 with the disclaimer qua the mark\/word<\/p>\n
“LOWENBRAU” and device of lion. Subsequently, the plaintiff No.1<\/p>\n
got the mark\/label “Lowenbrau munchen” registered in India in<\/p>\n
1972. In 1994, the plaintiffs got the mark\/word “LOWENBRAU”<\/p>\n
registered in India but this time without any disclaimer. Similarly in
\n      CS(OS) NO.1810\/2007           Page No.4<\/p>\n
1969, the plaintiffs have got the mark black stylised lion registered<\/p>\n
in India. In nutshell, the case of the plaintiffs is that the defendants<\/p>\n
cannot use the mark\/word “Lowenbrau Buttenheim” as the plaintiff<\/p>\n
No.1 is the registered proprietor of the mark\/word “LOWENBRAU”<\/p>\n
without disclaimer and therefore in terms of the statute, i.e. the<\/p>\n
Act, the defendants have no right to use the mark\/word<\/p>\n
“LOWENBRAU” in India. It was submitted that the use of the<\/p>\n
mark\/word “LOWENBRAU” by the defendants outside India is<\/p>\n
irrelevant and the defendants cannot take advantage\/benefit of<\/p>\n
territorial use of the mark\/word “LOWENBRAU” outside India to<\/p>\n
defeat the statutory rights of the plaintiffs. The plea of prior user, it<\/p>\n
was stated, is not available to the defendants as the mark was<\/p>\n
used by the defendants for the first time in India in 1999 and on<\/p>\n
that date the plaintiff No.1 was already the registered owner of the<\/p>\n
mark “LOWENBRAU”.\n<\/p>\n<\/p>\n
7.     At this stage, only interim applications for injunction\/vacation<\/p>\n
have to be disposed of on the basis of prima facie case, balance<\/p>\n
of convenience and irreparable harm and loss. Factual disputes<\/p>\n
are a matter of trial and de-registration\/cancellation of registration<\/p>\n
of the mark\/word “LOWENBRAU” in favour of the plaintiff No.1 is a<\/p>\n
matter to be decided by the Registrar and in appeal.\n<\/p>\n
      CS(OS) NO.1810\/2007             Page No.5\n\n\n\n\n7.       The    Act    including   the   earlier   enactment   Trade   &\n\n<\/pre>\n
Merchandise Marks Act, 1958 were enacted to provide for<\/p>\n
registration and better protection of trade-marks and for prevention<\/p>\n
of use of fraudulent marks. The Act was also passed to amend and<\/p>\n
consolidate the law relating to trade mark. Historically, protection<\/p>\n
of intellectual property rights in form of trade- mark, etc. is a<\/p>\n
common law right. The object of the trade mark legislations is to<\/p>\n
provide registration, to confer certain statutory rights to enable the<\/p>\n
registered proprietor to sue for infringement rather than merely<\/p>\n
passing off. The two rights, Common Law rights and statutory<\/p>\n
rights are inter-connected and the test of deception remains the<\/p>\n
same. The distinction between the two as explained by the<\/p>\n
Supreme Court in Ruston Hornsby Ltd versus The Zamindara<\/p>\n
Engineering Company, reported in (1970) 2 SCR 222 is that in<\/p>\n
case of registration Courts are not required to examine whether<\/p>\n
infringement is likely to deceive or cause confusion and actual<\/p>\n
deception or actual damage need not be proved. The test is<\/p>\n
whether the defendant’s mark is same or imitation of the registered<\/p>\n
mark. In case of passing off Courts have to examine and decide<\/p>\n
whether the defendant is selling goods so marked as to be<\/p>\n
designed or calculated to lead purchasers to believe that the<\/p>\n
goods are the plaintiff’s goods.\n<\/p>\n
      CS(OS) NO.1810\/2007            Page No.6<\/p>\n
8.      Conscious of the Common Law rights, the statutory<\/p>\n
legislations relating to trade-marks have protected unregistered<\/p>\n
owners of marks from action or claims by registered owners. While<\/p>\n
conferring statutory rights, the Act consciously did not affect right<\/p>\n
of action against any person for passing off or remedies in respect<\/p>\n
thereof. There is no penalty for those who do not register their<\/p>\n
mark. Section 27(2) of the Act reads as under:-<\/p>\n
           ” No action for infringement of unregistered trade
\n           mark<\/p>\n
           1) xxx\n<\/p><\/blockquote>\n
           2) Nothing in this Act shall be deemed to affect
\n           rights of action against any person for passing off
\n           goods or services as the goods of another person or
\n           as services provided by another person, or the
\n           remedies in respect thereof.”\n<\/p><\/blockquote>\n
     9. It will be appropriate to refer to the observations of the<\/p>\n
        Supreme Court in The Registrar of Trade Marks versus<\/p>\n
        Ashok Chandra Rakhit, Ltd reported in AIR 1955 SC 558 :\n<\/p><\/blockquote>\n
               “8. The third thing to note is that the avowed
\n               purpose of the section is not to confer any
\n               direct benefit on the rival traders or the general
\n               public but to define the rights of the proprietor
\n               under the registration. The registration of a
\n               trade mark confers substantial advantages on
\n               its proprietor as will appear from the sections
\n               grouped together in Chapter IV under the
\n               heading “Effect of Registration”. It is, however,
\n               a notorious fact that there is a tendency on the
\n               part of some proprietors to get the operation of
\n               their trade marks expanded beyond their
\n               legitimate bounds. An illustration of an attempt
\n               of this kind is to be found in In re Smokeless
\n               Powder Co.’s Trade Mark. Temptation has
\n               even led some proprietors to make an
\n               exaggerated claim to the exclusive use of parts
\n   CS(OS) NO.1810\/2007             Page No.7<\/p>\n
            or matters contained in their trade marks in
\n            spite of the fact that they had expressly
\n            disclaimed the exclusive use of those parts or
\n            matters. Reference may be made to Greers
\n            Ltd. v. Pearman and Corder Ltd. commonly
\n            called the “Banquet” case. The real purpose of
\n            requiring a disclaimer is to define the rights of
\n            the proprietor under the registration so as to
\n            minimise, even if it cannot wholly eliminate, the
\n            possibility of extravagant and unauthorised
\n            claims being made on the score of registration
\n            of the trade marks.”\n<\/p><\/blockquote>\n<\/blockquote>\n
11. Section 28 of the Act while referring to rights conferred on<\/p>\n
registration begins with the words “registration of trade-marks<\/p>\n
shall, if valid, ….. “. Rights under Section 28 flow when the<\/p>\n
registration of the mark is valid. Registration is only prima facie<\/p>\n
evidence of its validity (Refer, P.M. Diesels Pvt. Ltd. versus<\/p>\n
Thukral Mechanical Works reported in AIR 1988 Del. 282).\n<\/p><\/blockquote>\n
12. Section 124 of the Act reads :\n<\/p>\n<\/p>\n
           “124. Stay of proceedings where the
\n        validity of registration of the trade mark is
\n        questioned, etc.<\/p>\n
            (1) Where in any suit for infringement of a
\n        trade mark-\n<\/p><\/blockquote>\n
            (a) the defendant pleads that registration of
\n        the plaintiff’s trade mark is invalid ; or\n<\/p><\/blockquote>\n
            (b) the defendant raises a defence under
\n        clause (e) of sub-section (2) of section 30 and
\n        the plaintiff pleads the invalidity of registration
\n        of the defendant’s trade mark,<\/p>\n
           the court trying the suit (hereinafter referred
\n        to as the court), shall,-<\/p><\/blockquote>\n
           (i)  if any proceedings for rectification of
\n        the register in relation to the plaintiff’s or
\n CS(OS) NO.1810\/2007             Page No.8<\/p>\n
      defendant’s trade mark are pending before the
\n      Registrar or the Appellate Board, stay the suit
\n      pending the final disposal of such
\n      proceedings;\n<\/p>\n
         (ii) if no such proceedings are pending
\n      and the court is satisfied that the plea
\n      regarding the invalidity of the registration of
\n      the plaintiffs or defendant’s trademark is prima
\n      facie tenable, raise an issue regarding the
\n      same and adjourn the case for a period of
\n      three months from the date of the framing of
\n      the issue in order to enable the party
\n      concerned to apply to the Appellate Board for
\n      rectification of the register.\n<\/p>\n
         (2) If the party concerned proves to the
\n      court that he has made any such application
\n      as is referred to in clause (b) (ii) of sub-section
\n      (1) within the time specified therein or within
\n      such extended time as the court may for
\n      sufficient cause allow, the trial of the suit shall
\n      stand stayed until the final disposal of the
\n      rectification proceedings.\n<\/p>\n
          (3) If no such application as aforesaid has
\n      been made within the time so specified or
\n      within such extended time as the court may
\n      allow, the issue as to the validity of the
\n      registration of the trade mark concerned shall
\n      be deemed to have been abandoned and the
\n      court shall proceed with the suit in regard to
\n      the other issues in the case.\n<\/p>\n
         (4) The final order made in any rectification
\n      proceedings referred to in subsection (1) or
\n      sub-section (2) shall be binding upon the
\n      parties and the court shall dispose of the suit
\n      conformably to such order in so far as it
\n      relates to the issue as to the validity of the
\n      registration of the trade mark.\n<\/p>\n
         (5) The stay of suit for the infringement of a
\n      trade mark under this section shall not
\n      preclude the court from making any
\n   CS(OS) NO.1810\/2007              Page No.9<\/p>\n
        interlocutory order (including any order
\n        granting an injunction, directing account to be
\n        kept, appointing a receiver or attracting any
\n        property), during the period of the stay of the
\n        suit.”\n<\/p>\n<\/p>\n
13.   A defendant can set up a defence challenging validity of<\/p>\n
registration as provided in Section 124 of the Act but the civil<\/p>\n
court trying the suit is mandated to stay the suit when in defence<\/p>\n
plea of invalidity of registration is raised, to await outcome of the<\/p>\n
rectification proceedings and if no proceeding is pending and the<\/p>\n
court is satisfied that the plea of invalidity is prima facie tenable,<\/p>\n
adjourn the case for a period of three months from the date of<\/p>\n
framing of the issues to enable the defendant to approach the<\/p>\n
authorities for rectification of the registration. Thereafter on filing<\/p>\n
of an application for rectification trial in the suit is to be stayed till<\/p>\n
disposal of the rectification proceeding (see, Section 124(2) of the<\/p>\n
Act). Sub-section 4 of Section 124 states that the suit will be<\/p>\n
disposed of on the basis of the order passed by the authorities<\/p>\n
and the question of validity of registration will be binding on the<\/p>\n
court. Sub-section (5) to Section 124, however, stipulates that the<\/p>\n
civil court will be competent to pass an interlocutory order even<\/p>\n
when procedure under sub-sections 1 to 4 is to be followed and<\/p>\n
order of the Registrar\/authorities is awaited and the suit is stayed.\n<\/p>\n
   CS(OS) NO.1810\/2007             Page No.10<\/p>\n
14. In view of Section 124(5) of the Act, this Court is competent<\/p>\n
to adjudicate and decide the interlocutory application for<\/p>\n
injunction. While deciding the interlocutory application in view of<\/p>\n
language of Sections 28 and 124 of the Act, the Court is<\/p>\n
competent to take prima facie view on the question of validity of<\/p>\n
registration of the mark in favour of either side. Merely because<\/p>\n
the mark is registered, injunction will not automatically follow,<\/p>\n
when validity of registration is questioned in the written<\/p>\n
statement\/pleadings. While deciding whether injunction should be<\/p>\n
granted or not, a tentative view is required to be taken on the<\/p>\n
question of validity of registration and principles for grant of<\/p>\n
injunction applied. However, final decision on validity of<\/p>\n
registration is to be taken by the authorities and not by the civil<\/p>\n
court. Registration is prima facie regarded as valid but mere<\/p>\n
registration alone is not conclusive and is not binding on the civil<\/p>\n
court when the application for injunction is considered and<\/p>\n
decided. Onus however, will be on the party which questions<\/p>\n
validity of registration to show that the registration is prima facie<\/p>\n
and tentatively bad or invalid.\n<\/p>\n<\/p>\n
15. Section 31 of the Act reads:-\n<\/p>\n<\/p>\n
        “Section 31. Registration to be prima facie
\n        evidence of validity
\n        (1)In all legal proceedings relating to a trade mark
\n        registered under this Act (including applications
\n   CS(OS) NO.1810\/2007            Page No.11<\/p>\n
        under 57), the original registration of the trade mark
\n        and all subsequent assignments and transmissions
\n        of the trade mark shall be prima facie evidence of
\n        the validity thereof.\n<\/p><\/blockquote>\n
        (2) In all legal proceedings, as aforesaid a
\n        registered trade mark shall not be held to be invalid
\n        on the ground that it was not a registrable trade
\n        mark under Section 9 except upon evidence of
\n        distinctiveness and that such evidence was not
\n        submitted to the Registrar before registration, if it is
\n        proved that the trade mark had been so used by the
\n        registered proprietor or his predecessor in title as to
\n        have become distinctive at the date of registration.”\n<\/p><\/blockquote>\n
16. The said section has to read harmoniously with Sections 28<\/p>\n
and 124 of the Act. At the stage of interim application the court is<\/p>\n
required to examine question of validity. Registration is prima<\/p>\n
facie evidence of validity but not conclusive even at this stage.<\/p>\n
Sub-section 2 to Section 31 of the Act, stipulates that registration<\/p>\n
of the mark will not be held to be invalid on the ground that the<\/p>\n
mark could not have been registered under Section 9 of the Act<\/p>\n
except upon evidence of distinctiveness and there was failure to<\/p>\n
submit such evidence before the Registrar, provided evidence is<\/p>\n
filed in the legal proceedings to prove that the mark had acquired<\/p>\n
distinctiveness on the date of registration. Legal proceedings will<\/p>\n
include Suits filed by the registered owner of the mark against<\/p>\n
third parties.   Section 32 of    the Act,    states that   if a mark<\/p>\n
stands registered contrary to       Section 9(1) of the Act and<\/p>\n
registration is bad for lack of distinctiveness on the date of
\n   CS(OS) NO.1810\/2007            Page No.12<\/p>\n
registration, the party can defend the challenge by showing that<\/p>\n
they have acquired a distinctive character after registration but<\/p>\n
before commencement of the legal proceedings. These sections<\/p>\n
also show that question of distinctiveness can be examined at the<\/p>\n
stage of grant of interim injunction by the courts.<\/p>\n
17. Section 9(1) of the Act is reproduced below:-<\/p>\n
         ” 9. Absolute grounds for refusal of registration
\n        (1) The trade marks\n<\/p><\/blockquote>\n
               (a)      which are devoid of any distinctive
\n        character, that is to say, not capable of
\n        distinguishing the goods or services of one person
\n        from those of another person;\n<\/p><\/blockquote>\n
           (b) which consist exclusively of marks or
\n        indications which may serve in trade to designate
\n        the kind, quality, quantity, intended purpose, values,
\n        geographical origin or the time of production of the
\n        goods or rendering of the service or other
\n        characteristics of the goods or service;\n<\/p><\/blockquote>\n
           (c) which consist exclusively of marks or
\n        indications which have become customary in the
\n        current language or in the bona fide and established
\n        practices of the trade,
\n        shall not be registered:\n<\/p><\/blockquote>\n
              Provided that a trade mark shall not be
\n        refused registration if before the date of application
\n        for registration it has acquired a distinctive character
\n        as a result of the use made of it or is a well-known
\n        trade mark.”\n<\/p><\/blockquote>\n
18. Thus whether there was violation and failure to meet<\/p>\n
conditions of Section 9(1) of the Act, can be examined and a
\n   CS(OS) NO.1810\/2007            Page No.13<\/p>\n
tentative opinion formed by the court for deciding the interim<\/p>\n
application.\n<\/p>\n<\/p>\n
19. One of the grounds on which registration of a mark can be<\/p>\n
challenged is fraud. Fraud with reference to registration of trade<\/p>\n
mark has been interpreted by Bombay High Court in Indo<\/p>\n
Pharma         Pharmaceutical      Works      Pvt     Ltd    versus<\/p>\n
Farbenfabriken Bayer Aktiengesel reported in 1976 Bom.L.R.<\/p>\n
1972 to mean :-\n<\/p>\n<\/p>\n
                “What is meant by fraud in the context of
\n                S.32(a) has not been precisely defined. It
\n                might be a fraud for a person to procure
\n                registration of a trade mark of which he
\n                knows he is not entitled to claim the
\n                exclusive use for instance, if he knows that
\n                it is in use by another trader if an applicant
\n                is aware that there is another party, who
\n                ought to be registered, the assertion may be
\n                regarded as a deliberate attempt to deceive
\n                the Registrar which would amount to fraud
\n                such as to prevent registration in Part A
\n                from becoming conclusive after seven
\n                years.”\n<\/p><\/blockquote>\n
20. It is an admitted case of the plaintiffs that the registration<\/p>\n
granted in 1960 was subject to disclaimer qua the mark\/word<\/p>\n
“LOWENBRAU” and the device of lion. There is hardly any<\/p>\n
evidence or material placed on record by the plaintiffs to show<\/p>\n
and establish that the plaintiffs had started extensive marketing of<\/p>\n
their product (beer) in India and the mark\/word “LOWENBRAU”<\/p>\n
came to acquire distinctiveness and association with the plaintiff
\n   CS(OS) NO.1810\/2007            Page No.14<\/p>\n
No.1 and disclaimer was withdrawn. Therefore withdrawal of<\/p>\n
disclaimer\/condition in 1994 (or 1972 as alleged in the plaint)<\/p>\n
cannot prima facie be justified. The plaintiffs have not given their<\/p>\n
sale figures in India for the period 1960 onwards. Intermittent and<\/p>\n
minuscule sales in duty free shops, select hotels in the facts of<\/p>\n
the present case are not sufficient to create and establish<\/p>\n
distinctiveness.\n<\/p>\n<\/p>\n
21. It is the case of the defendants that registration in 1972 was<\/p>\n
in respect of label “Lowenbrau Munchen” and the said contention<\/p>\n
appears to be correct.        On 18th Oct.,1994 the word\/mark<\/p>\n
“LOWENBRAU” was registered without any disclaimer in favour of<\/p>\n
the plaintiff No.1 with their particulars mentioned in the certificate<\/p>\n
as “Lowenbrau AG (a company duly organised under the laws of<\/p>\n
Germany)       Nymphenburger      Strasse     4D-80335      Munchen<\/p>\n
Germany, manufacturer and merchant”. At the same time, the<\/p>\n
1960 registration with disclaimer on “LOWENBRAU” and device<\/p>\n
of lion still continues and has been repeated extended.<\/p>\n
22. The defendants to question validity of the registration and<\/p>\n
violation of Section 9(1) of the Act, in addition to disclaimer<\/p>\n
made\/admitted by the plaintiff No.1 themselves, have evidence in<\/p>\n
form of judgment of a competent court in Germany in which the<\/p>\n
plaintiff no.1 was denied exclusive right to use the mark\/word
\n   CS(OS) NO.1810\/2007                 Page No.15<\/p>\n
“LOWENBRAU”. The defendants have also placed on record<\/p>\n
ample evidence to show that the mark\/word “LOWENBRAU” is<\/p>\n
extensively used by several brewers of beer in Germany. It is not<\/p>\n
only the plaintiff no.1 and the defendant no.2 but there are several<\/p>\n
others who are using the said mark for beer. The mark\/word<\/p>\n
“LOWENBRAU” does not distinguish or distinctive of the plaintiffs,<\/p>\n
the defendants or any of the parties dealing with beer. Users of<\/p>\n
the said mark\/word or the source, is distinguished by addition of<\/p>\n
other words or use of suffix or prefix with the word<\/p>\n
“LOWENBRAU”. There is no evidence that selective availability of<\/p>\n
the plaintiffs or the defendants products in duty free shops,<\/p>\n
exclusive hotels etc. in India in the present case was sufficient to<\/p>\n
create distinctiveness qua them in respect of the mark<\/p>\n
“LOWENBRAU”             in   India.   The     trans-border   factor   and<\/p>\n
distinctiveness has been examined alongwith the issue of prior<\/p>\n
user.\n<\/p>\n<\/p>\n
23. Prior user and honest and concurrent user are good<\/p>\n
defences to a suit based on action for infringement of the<\/p>\n
registered mark.\n<\/p>\n<\/p>\n
24. Section 34 of the Act stipulates that a registered user or<\/p>\n
proprietor cannot interfere with or restrain a third person from<\/p>\n
using a mark identical or resembling the registered mark which he
\n   CS(OS) NO.1810\/2007             Page No.16<\/p>\n
has continuously used from a date prior to the plaintiff’s first use<\/p>\n
or from the date of registration, whichever is earlier. Who had first<\/p>\n
used the mark\/word “LOWENBRAU” in India is a disputed<\/p>\n
question of fact. Extent, quantum and nature of sale to claim and<\/p>\n
justify prior user rights is a mixed question of law and facts.<\/p>\n
Plaintiffs have not stated their total turnover in India. Defendant<\/p>\n
no.2-Company was incorporated in the year 1999. Subsequently<\/p>\n
it entered into a joint venture agreement with defendant no.1 for<\/p>\n
manufacture of beer under the mark\/word “LOWENBRAU<\/p>\n
BUTTENHEIM” in India. It is the case of the defendants that it has<\/p>\n
been    selling    beer   under   the    mark\/word   “LOWENBRAU<\/p>\n
BUTTENHEIM” in India since 1999 and in 2003 the licence was<\/p>\n
granted to defendant no.1 by the Excise Department also. It is<\/p>\n
also the case of the defendants that beer under the mark\/word<\/p>\n
“LOWENBRAU BUTTENHEIM” was sold in India earlier also.<\/p>\n
Sales of the defendants it appears are substantially higher than<\/p>\n
the sales of the plaintiffs.\n<\/p>\n<\/p>\n
25. Learned counsel for the plaintiffs had submitted that prior<\/p>\n
user in India alone is the determining factor and user outside India<\/p>\n
is not relevant for Section 34 of the Act. This is disputed by the<\/p>\n
defendants. This legal proposition cannot be answered in<\/p>\n
absolute terms which will be universally applicable. Answer
\n   CS(OS) NO.1810\/2007           Page No.17<\/p>\n
depends upon facts of each case, extent of use in time, quantity,<\/p>\n
area of use, whether the mark has become common to trade, or<\/p>\n
to a geographical source\/origin etc.<\/p>\n
26.     As per the plaintiffs the mark\/word “LOWENBRAU” in<\/p>\n
German stands for lion’s drink or drink of a lion. The defendants<\/p>\n
however claim that the said words in German also stands for<\/p>\n
house of beer. In Germany it is commonly used for beer and<\/p>\n
German beer is sold world over by the said name.<\/p>\n
27.      Both parties are German Companies. Both of them have<\/p>\n
been using the mark\/word “LOWENBRAU” all over the world and<\/p>\n
are distinguished by other mark\/word on their label\/mark and not<\/p>\n
by use of the mark\/word “LOWENBRAU” or device of lion. In the<\/p>\n
present case, two international brands, both of Germany origin<\/p>\n
and marketing and selling beer across the world, want to expand<\/p>\n
and market beer in India. In these circumstances the position as it<\/p>\n
exists abroad and usage abroad cannot be ignored. The<\/p>\n
mark\/word “LOWENBRAU” has been extensively used in<\/p>\n
Germany for beer and even the plaintiffs do not deny that it has<\/p>\n
become descriptive and generic word in the said country and<\/p>\n
other places where German beer is sold and consumed. The<\/p>\n
mark\/word “LOWENBRAU” is a part of public juris in Germany<\/p>\n
and in most countries with German beer and is not distinctive of a
\n   CS(OS) NO.1810\/2007               Page No.18<\/p>\n
particular manufacturer. In view of this factual background,<\/p>\n
including the litigation in Germany, I do not think in the present<\/p>\n
case, the question of prior use can be judged or decided on the<\/p>\n
basis of user in India alone. Indian market is opening up and<\/p>\n
foreign or multinational brands have moved and\/or are likely to<\/p>\n
move. Similarly, Indian brands are likely to move out and expand<\/p>\n
into markets abroad. National and manmade borders and<\/p>\n
boundaries are gradually getting diluted and the entire world is<\/p>\n
now seen as a common market. It may not be, therefore, proper<\/p>\n
to ignore ground realities and position in the home country and<\/p>\n
abroad in the present case specially when there is ample<\/p>\n
evidence     and        material   to   show     that   the   mark\/word<\/p>\n
“LOWENBRAU” is public juris and a generic word standing for<\/p>\n
“German beer” and is not distinctive for any source. Trans-border<\/p>\n
reputation has been accepted and recognised in India even when<\/p>\n
the products are not being marketed and sold in India.             It is<\/p>\n
clarified that in a given case prior user in India may be relevant for<\/p>\n
applying Section 34 of the Act, depending upon parties involved,<\/p>\n
nature and type of the mark, its adoption and extent and nature of<\/p>\n
use abroad etc. Each case therefore may have to be decided on<\/p>\n
its own merits and factual background. In the present case<\/p>\n
however while applying Section 34 of the Act, the position as<\/p>\n
prevailing in the parent country and abroad should not be ignored
\n   CS(OS) NO.1810\/2007            Page No.19<\/p>\n
and the prior user has reference to user in India and abroad.<\/p>\n
Plaintiffs cannot claim different treatment and rights in India viz.<\/p>\n
the entire world where both parties are using the mark\/word<\/p>\n
“LOWENBRAU”. It will be unjust and unfair.\n<\/p>\n<\/p>\n
28. Aktiebolaged        Jonkoping        Vulcean     versus      S.V.<\/p>\n
Palanichany Nadar and others, reported in AIR 1969 Cal. 43,<\/p>\n
relied upon by the plaintiffs is distinguishable. In the said case the<\/p>\n
appellant therein was a Swedish Company that was earlier<\/p>\n
marketing safety matches under the registered mark “Three<\/p>\n
Stars” but due to Government policy was prohibited from selling<\/p>\n
safety matches in India.       The Indian company had sought<\/p>\n
cancellation of the registration of the mark on the ground of non-<\/p>\n
user. In that context reference was made to English decisions to<\/p>\n
decide the question whether non-use of the trade-mark was due<\/p>\n
to special circumstances. The Court also examined the question<\/p>\n
of abandonment with reference to non-user. It was observed that<\/p>\n
while examining the question of cancellation of registration, use<\/p>\n
and advertisement abroad, outside the territory of India is not of<\/p>\n
assistance. It was further held that the trade mark law is a<\/p>\n
municipal law which is not extra territorial in nature and is<\/p>\n
confined to territorial limits of India. The question involved in the<\/p>\n
said case related to cancellation of registration in India. In the
\n      CS(OS) NO.1810\/2007              Page No.20<\/p>\n
present case however, the question relates to the common law<\/p>\n
rights of the defendants and the extent to which these are<\/p>\n
protected under the Act. If the proposition or the claim of the<\/p>\n
plaintiffs is to be accepted then even a claim under common law<\/p>\n
rights of passing off based on trans-border reputation cannot be<\/p>\n
accepted. Trans-border reputation is accepted and is a legal right<\/p>\n
which can be enforced in India. Section 34 of the Act accepts<\/p>\n
common law rights of an unregistered user of identical or<\/p>\n
resembling trade mark, provided he is a prior user. It may noticed<\/p>\n
that the English Law on trans-border reputation when the foreign<\/p>\n
manufacturer does not have business interest in the said country<\/p>\n
is     somewhat        different.   Goodwill       is   treated   local   and<\/p>\n
advertisements in periodicals, media, internet and travel abroad<\/p>\n
were not considered sufficient in many cases. Normally the<\/p>\n
English Court’s insist on a minimal business interest in the said<\/p>\n
country. (See, pages 456 to 462 in Kerly’s Law of Trade Marks<\/p>\n
and Trade Names, Fourteenth Edition).\n<\/p>\n<\/p>\n
29. Concurrent and honest user was a valid defence against an<\/p>\n
action for infringement under the Trade Mark and Merchandise<\/p>\n
Marks Act,1958. Legal rights of a third party to use a mark without<\/p>\n
causing infringement of a mark registered under the said 1958
\n   CS(OS) NO.1810\/2007           Page No.21<\/p>\n
Act, is protected under Section 159(5) of the Act. Defendants will<\/p>\n
be entitled to benefit and defend this action relying upon honest<\/p>\n
and concurrent use. Even otherwise Sections 9(1), 30(1) and(2)<\/p>\n
and 35 of the Act do recognise honest concurrent use and on the<\/p>\n
conditions mentioned therein being satisfied, defend a suit for<\/p>\n
infringement. Honest and concurrent user is always recognised as<\/p>\n
a defence to action alleging infringement.\n<\/p>\n<\/p>\n
30. Section 30 (1) of the Act stipulates that a person cannot be<\/p>\n
prevented from using a registered trademark provided the use is<\/p>\n
in accordance with honest practices in industrial or commercial<\/p>\n
matters and does not take unfair advantage of or is detrimental to<\/p>\n
the distinctive character or repute of the trade mark. Similarly<\/p>\n
Section 30(2) of the Act permits use of trade mark in relation to<\/p>\n
goods or services indicating quality or geographical origin.<\/p>\n
Section 35 of the Act also protects a person, who bonafidely uses<\/p>\n
a mark, which describes character or quality of his goods or<\/p>\n
services. It is the contention of the defendants that word<\/p>\n
“LOWENBRAU” has become synonymous with beer of German<\/p>\n
origin and source. The defendants have filed substantial evidence<\/p>\n
and material in support of the said contention. The defendants<\/p>\n
have prima facie established that the mark “LOWENBRAU” is being<\/p>\n
bonafidely used by them and some others all over the world and
\n   CS(OS) NO.1810\/2007             Page No.22<\/p>\n
is bona fide description of the character or quality of the goods i.e.<\/p>\n
the beer, manufactured by a German company or German Beer.<\/p>\n
Honest and concurrent user outside India by the defendants and<\/p>\n
others is practically admitted by the plaintiffs. For the reasons<\/p>\n
stated above, in the facts of the present case honest and<\/p>\n
concurrent user outside India alongwith the plaintiffs, without any<\/p>\n
objection for last 100 years, is a valid defence when both parties<\/p>\n
want to expand into India. Reference in this regard can be made<\/p>\n
to the decision of this Court in SPL Ltd. Versus Himalyan Drug<\/p>\n
Company Limited reported in 1997 (67 DLT 803) in which it was<\/p>\n
observed :\n<\/p>\n<\/p>\n
             “Any symbol, word or get up commonly used
\n             by traders in connection with their trade and in
\n             respect of which no particular trader can claim
\n             an exclusive right to use may be considered
\n             common to that particular trade, or public,
\n             juris. Further words, expressions, or devices
\n             which are descriptive of particular goods are
\n             open to use by all persons engaged in the
\n             trade. Such matters which are generally of a
\n             non distinctive character may or may not be in
\n             actual use at any particular time. What is
\n             important is that the trading public has a right
\n             to use them in connection with their business.<\/p><\/blockquote>\n
             21. Whether a matter is or is not common to
\n             the trade is a question of fact. A feature which
\n             is common to one trade may not be so to a
\n             different trade. Similarly a mark may continue
\n             to be trade mark in some countries and public
\n             Jurisdiction in others. A mark which was
\n             common to the trade at one time may in
\n   CS(OS) NO.1810\/2007                 Page No.23<\/p>\n
             course of time become distinctive and vice
\n             versa. A word or words used by a number of
\n             firms as part of their designation may be
\n             considered as words in common use (See:\n<\/p>\n
             Law of Trade Mark and Passing Off, P.\n<\/p>\n
             Narayanan, 4th Edn., para 14.2)”\n<\/p>\n<\/p>\n
31. The above facts also reveal that the balance of convenience<\/p>\n
does not justify grant of interim injunction. The defendant no.1-<\/p>\n
Company was incorporated in 1999 and the defendant no.2 has<\/p>\n
been marketing their products since 2003-04. In the first year the<\/p>\n
sales were more than 9000 cases, which increased to more than<\/p>\n
68000 cases in 2004-05. In 2005-06 its sales came down to more<\/p>\n
than 9000 cases again to go up nearly 34000 cases in 2006-07.<\/p>\n
The plaintiffs filed the present Suit in October 2007, after the<\/p>\n
defendants had already set up their factory and started marketing<\/p>\n
their products. The plaintiffs are yet to start production in India<\/p>\n
and their turnover in India is not disclosed. The defendants have<\/p>\n
pleaded acquiesce and estoppel alongwith delay. Both the parties<\/p>\n
are Germans and have been marketing their products world wide<\/p>\n
using the mark\/word “LOWENBRAU” without objection from the<\/p>\n
other. The balance of convenience does not therefore support the<\/p>\n
plaintiffs’ claim for grant of injunction. If both the parties can sell<\/p>\n
beer   all   over       the   world   with    the   common   mark\/word<\/p>\n
“LOWENBRAU” but can be distinguished from each other, there<\/p>\n
is no reason\/cause why they cannot concurrently sell beer in India
\n   CS(OS) NO.1810\/2007           Page No.24<\/p>\n
using the same mark\/word “LOWENBRAU”. There are other<\/p>\n
distinguishing features in their marks and labels to separate them.<\/p>\n
There are no special grounds or reasons why a consumer of beer<\/p>\n
in India will not be able to distinguish between the two beers and<\/p>\n
will be deceived. Plea of passing off cannot be sustained.<\/p>\n
32. In view of the above findings, the ex parte stay order is<\/p>\n
vacated. I.A. No.11355\/2007 is dismissed and I.A. No.13772\/2007<\/p>\n
is allowed. The defendants will be also entitled to cost which is<\/p>\n
assessed at Rs.20,000\/-. Observations and findings in this order<\/p>\n
are tentative\/prima facie and will not be binding on the Registrar<\/p>\n
and appellate authorities under the Act and the suit will be<\/p>\n
decided without being influenced by the present findings.<\/p>\n
      List before the regular Bench for further orders\/directions on<\/p>\n
28th January, 2009.<\/p>\n
\n\n\n\n\n                                             (SANJIV KHANNA)\n                                               JUDGE\n  JANUARY         14, 2009.\n  P\n <\/pre>\n","protected":false},"excerpt":{"rendered":"
Delhi High Court Lowenbrau Ag & Another vs Jagpin Breweries Ltd & Another on 14 January, 2009 Author: Sanjiv Khanna CS(OS) NO.1810\/2007 Page No.1 REPORTABLE * IN THE HIGH COURT OF DELHI AT NEW DELHI + I.A. Nos. 11355\/2007 & 13772\/2007 in CS(OS) No. 1810 of 2007 % Date of Decision : January 14th , […]<\/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":[14,8],"tags":[],"class_list":["post-224132","post","type-post","status-publish","format-standard","hentry","category-delhi-high-court","category-high-court"],"yoast_head":"\nLowenbrau Ag & Another vs Jagpin Breweries Ltd & Another on 14 January, 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\/lowenbrau-ag-another-vs-jagpin-breweries-ltd-another-on-14-january-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Lowenbrau Ag & Another vs Jagpin Breweries Ltd & Another on 14 January, 2009 - 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