{"id":98264,"date":"1998-11-09T00:00:00","date_gmt":"1998-11-08T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/indian-shaving-products-ltd-vs-gift-pack-anr-on-9-november-1998"},"modified":"2019-02-10T11:07:43","modified_gmt":"2019-02-10T05:37:43","slug":"indian-shaving-products-ltd-vs-gift-pack-anr-on-9-november-1998","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/indian-shaving-products-ltd-vs-gift-pack-anr-on-9-november-1998","title":{"rendered":"Indian Shaving Products Ltd. & … vs Gift Pack & Anr. on 9 November, 1998"},"content":{"rendered":"
Delhi High Court<\/div>\n
Indian Shaving Products Ltd. & … vs Gift Pack & Anr. on 9 November, 1998<\/div>\n
Author: M Shamim<\/div>\n
Bench: M Shamim<\/div>\n<\/p>\n
<\/pre>\n
ORDER<\/p>\n
Mohd. Shamim, J.<\/p>\n
1.
\n     This  is an application (IA 5333\/98) by the plaintiffs under Order  39
\nRules 1 & 2 read with Section 151 of the Code of Civil Procedure for  issue of an ad interim injunction restraining the defendants, their servants  and agents  from  manufacturing,  selling and offering for  sale,  directly  or indirectly, their batteries under the trade mark Ultra and from passing off their  goods as the goods of the plaintiffs under the above said trade  mark or any other trade mark deceptively similar to the trade mark of the plaintiff i.e. Duracell Ultra. The application is supported by an affidavit. The defendants,  on the other hand, have moved an application, being  I.A.  No. 6040\/98,  for  vacating the ex parte ad interim injuction  granted  to  the plaintiffs vide order dated July 1, 1998.\n<\/p>\n
2.   The  two applications are being taken up together as the  disposal  of one would inevitably lead to the disposal of the other since the plaintiffs have prayed for a relief to be granted to them through I.A. No. 5333\/98  to which, according to the defendants, the plaintiff are not entitled and  the said application thus deserves rejection.\n<\/p>\n
3.   It would be necessary to place on record a few facts which led to  the presentation  of the application by the plaintiffs and which are  necessary to be gone into in order to properly and effectively appreciate the  points involved herein.\n<\/p>\n
4.   Plaintiff No. 1 are a company incorporated under the Indian  Companies Act  with  their  registered office at SPA-65A,  Bhiwadi  Industrial  Area, Bhiwadi, District Alwar (Rajasthan). They are the sole distributor appointed  by  plaintiff No. 2 for distribution of batteries  vide  agreement  for distribution of goods dated March 19, 1997. Pursuant to the said  agreement they are marketing the products manufactured by plaintiff No. 2.\n<\/p>\n
5.   Plaintiff  No. 2 are also a company incorporated under  the  Companies Act with their Registered Office at 34, Okhla Industrial Estate, New Delhi. A  licence has been issued to Plaintiff No. 2 in respect of the trade  mark Duracell  granted to them by NV Duracell Batteries SA, a corporation  organized under the Laws of Belgium with their principal office at  Nijverheidslaan 7, B-3220, Aarschot, Belgium. Plaintiff No. 2 have been incorporated, inter  alia, to design, develop, manufacture, produce, buy, sell,  distribute,  import, export, assemble, market and otherwise deal in all  types  of cells  and  batteries including alkaline batteries. Plaintiff  No.  2  were incorporated  on April 6, 1994. They commenced their business in  the  last quarter of 1994. Plaintiff No. 2 are a part of Duracell Inc., USA which are the leading Manufacturers and marketers of high performance alkaline batteries.  Duracell  batteries are sold all over the word under the  trade  mark Duracell.  The Duracell range of batteries cover 90% of the  total  world’s battery  usage. Duracell Inc. currently manufactures more than 30 types  of batteries including 13 types of alkaline batteries. Duracell batteries  are the world leaders in the field. Plaintiff No. 2 have been importing all  13 varieties of alkaline batteries into India and have been selling them since August 1994.\n<\/p>\n
6.   Plaintiff  No.  2 have also commenced manufacture of  ‘AA’  pencil\/pen like  cells from December 1997 for the domestics as well as export  market. Plaintiff  No. 2 are leaders in the battery segment in India and  hold  the market  share  of approximately 48%. Duracell batteries have  over  a  time built a strong brand equity, goodwill and reputation world-wide as well  as in India for their products and have millions of satisfied consumers.\n<\/p>\n
7.   Defendant No. 1 on the other hand, are a conce inter alia, dealing  in the  products  of defendant No. 2 i.e. BPL Ultra zinc  chloride  batteries. Defendant No. 2 are engaged, inter alia, in commercial manufacture  marketing and selling of Excel range of alkaline batteries in India since August 1997 and have recently commence manufacturing zinc chloride batteries.  The parent company of the plaintiff No. 2 is also using the trade mark Duracell batteries  along with another trade mark Ultra in many countries  all  over the world. The trade marks Duracell as well as Ultra have acquired a  reputation  and  goodwill throughout the world. The trade mark Ultra  is  being used by the parent company of plaintiff No. 2, Duracell Inc. USA. They have been using the same since February, 1998. Thus the trade mark Duracell  and the mark Ultra have been exclusively associated with the goods of plaintiff No. 2 and none else. Plaintiff No. 2 have made huge sales of their  batteries under the trade mark Duracell and Ultra hroughout the world. Plaintiff No.  2 however, have started using for the first time trade  mark  Duracell along  with  mark Ultra in respect of batteries of  superior  quality  i.e. alkaline batteries from the second week of June, 1998 onwards. The application  moved  by the plaintiff for the registration of the said  trade  mark Ultra  is pending. Plaintiff No. 2 have acquired world-wide  reputation  in respect  of their trade mark Duracell along with mark Ultra.  The  consumer all over the world as such recognise the aforementioned trade mark Duracell as well as Ultra as that of plaintiff No. 2. Plaintiff No. 2 much prior  to the  launching  of their products under the trade mark Duracell  Ultra  and initiated various actions to familiarise the customers and the market  with regard  to  the intended launch of Duracell Ultra. These  actions  included publication of articles in different Journals and Newspapers. The  purchasers  in India have also got the knowledge with regard to the  trans  border reputatio of the said trade mark with the products manufactured and  sold by  plaintiff  No. 2. Plaintiff No. 2 have also  floated  information  with regard to Duracell on a website on internet wherein description and quality of Duracell Ultra batteries is available for general public. The  above said trade  mark  in  respect of the batteries denotes and  connotes  the  goods manufactured by plaintiff No. 2. The Duracell Ultra batteries  manufactured and sold by plaintiff No. 2 are alkaline batteries which are  qualitatively superior to currently available alkaline batteries on the world market.\n<\/p>\n
8.   Defendant  No. 2 introduced the batteries\/pencil cell under the  trade mark Ultra into market on June 24, 1998. The said batteries are zinc  chlo-ride  batteries  which  are much inferior to the batteries  being  sold  by plaintiff  No.  2 under the trade mark Duracell. The trade mark  Ultra  has been  shown  prominently on the said products. The words  “BPL”  have  been mentioned on the products as their house mark but Ultra as their trade mark is  shown  on the said batteries. Defendant No. 2 by the use  of  the  said trade  mark  Ultra  are misleading the consumers to  project  as  if  their products  are  a substitute for the products of plaintiff No.  2  known  as Duracell Ultra. This action of defendant No. 2 has caused irreparable  loss and  injury  to the plaintiffs inasmuch as the goodwill  of  the  plaintiff would be prejudicially affected and the right of the plaintiffs on carry to their business will be severely jeopardised. The practice of misrepresentation on the part of defendant No. 2 is culated to injure the interest of plaintiff  No. 2 in trade and business. The use of the trade mark Ultra  by the  defendants amounts to infringement of the trade mark of plaintiff  No. 2.  Defendant  No. 2 have thus intentionally and deliberately  adopted  the above said trade mark in order to take advantage of the goodwill and reputation  of the trade mark of the plaintiff i.e. Ultra. The use of  the  trade mark Ultra by the defendant is identical\/deceptively similar with the trade mark  of  plaintiff No. 2 i.e. Duracell Ultra. Defendant No.  2  have  been using the said trade mark Ultra without any permission, license or  consent of  plaintiff  No. 2 whatsoever Defendant No. 2 have dishonestly  used  the said  trade mark Ultra with the full knowledge of the goodwill and  reputation  of the said trade mark Ultra all over the world. Plaintiff No. 2  are the  prior user and adopter of the trade mark Ultra along with Duracell  in India than the defendant. Defendant No. 2 have no justification  whatsoever to use and adopt the trade mark Ultra in respect of identical goods.\n<\/p>\n
9.   Defendants  have  opposed  the above application and  prayed  for  the dismissal of the application and vacation of the ex parte injunction  order dated  July  1,  1998 passed by this Court, inter alia,  on  the  following grounds;  that defendant No. 2 are the prior adopter and user of the  trade mark Ultra inasmuch as the plaintiffs launched their AA+ alkaline dry  cell batteries much after the defendant, under the alleged mark Ultra. The  word ‘Ultra’ has been used by the manufacturers of dry cell batteries i.e. BPL – PTI Chemical Industries Ltd. in India since 1st June, 1998. The word  Ultra is  a descriptive and laudatory epithet having a direct reference  to  the character  and  quality of goods. It means according to the  Dictionary  of ‘English  Language’ beyond what is usual or ordinary, excessive.  The  word ‘Ultra’  is thus descriptive and no monopolistic rights can be  claimed  by the plaintiffs therein as a trade mark. The suit is misconceived and  without  any cause of action as there is n goodwill that exists in respect  of the  word ‘Ultra’ in favour of the plaintiffs. Goodwill arises out  of  the use  of a trade mark in relation to a business. The goods bearing the  word ‘Ultra’ were sold by BPL-PTI, to defendant No. 2 in the first week of June, 1998 and the said batteries were sold by defendant No. 2 in the open market in  the  week commencing 15th June, 1998 which is prior to the use  by  the plaintiffs.  Thus  the suit of the plaintiffs which is for  a  passing  off action  is liable to be dismissed. There is no likelihood of any  confusion or  deception occurring amongst the consumes or in the  market  considering that  the competing goods of both the parties are sold under their  respective  well-known  trade marks namely, Duracell and BPL.  The  word  ‘Ultra’ merely signifies enhanced quality and is used as laudatory epithet for bona fide description of goods by both the parties. Further the packings and the trade dress of the competing goods are totally different. Hence there is  a va  difference between the competing products. The allegations  that  the use  of the word ‘Ultra’ by the defendants will cause confusion and  deception are misconceived and fraudulent, untenable and figment of  imagination of  the plaintiffs. None of the plaintiffs admittedly is the proprietor  of the  alleged trade mark. Plaintiff No.1 is the distributor of the goods  of plaintiff No. 2 and plaintiff No. 2 is allegedly a non exclusive  licensee. None  of the plaintiffs have thus got the locus standi to file the  present suit.\n<\/p>\n
10.  Defendant  No. 2 have got the legal and vested right to use  the  word ‘Ultra’ which is a brand descriptor. The said word is used by defendant No. 2  also  with  their trade mark BPL which is registered  under  trade  mark registration No. 429393 dated November 7, 1984 in Class 9. The said  registration  is valid, subsisting and not an issue in the present  proceedings. The  idea of using the word ‘Ultra’ in relation to dry cell  batteries  was conceived  wayback  in September, 1997. A decision was taken to  brand  descriptor  Ultra Power in December 1997. Defendant No. 2 launched BPL  Ultra cell batteries in the open market in the second week of June 1998 i.e.,  on June 15, 1998. BPL Ultra cell batteries became extremely popular on account of  their excellent quality and reasonable pricing and were quickly  picked up  by the consumers. The sale of batteries of the defendant was  so  rapid that  it touched a figure of Rs. 30 lacs within a short span of  two  weeks which was matter of concern to the plainiffs. Hence they filed the present suit  with ulterior motives. As for as Duracell, USA is concerned there  is no commercial, bona fide and substantial sale made by them to plaintiff No. 2  admittedly prior to 4th week of June, 1998. Neither there is  any  prima facie case in favour of the plaintiffs nor does the balance of  convenience lie  in their favour. The balance of convenience is in favour of  defendant No. 2 whose business worth Rs. 4 crores has come to a standstill on account of  the impugned ex prate injunction order. It has therefore,  been  prayed that  the application moved by the plaintiff being false and  frivolous  be dismissed and the ex prate injunction order dated July 1, 1998 be vacated.\n<\/p>\n
11.  It has been urged for and on behalf of the plaintiffs by their  senior counsel Mr. Rohtagi and Sardar Manmohan Singh that plaintiff No. 2 have got an  exclusive right to use the trade mark Duracell under an agreement  with plaintiff dated October 5, 1994. Plaintiff No. 3, parent company of  plaintiff No. 2, have been using the trade mark Duracell batteries alongwith the trade mark Ultra is connection with the sale of different type of batteries in different countries all over the world for quite a long time. They  have been  using  the  same since February, 1998 in  the  international  market. However so far as India is concerned they have started using the trade mark Duracell alongwith trade mark Ultra since 2nd week of June, 1998.  Application  by the plaintiff No. 2 for the registration of the above  said  trade mark is pending with the Registrar of the Trade Marks. The plaintiff No.  2 have  spent  huge amounts in connection with the advertisement of  the  said trade mark in different leading papers and Journals. Trade mark ultra  cell was  got registered in Germany as far back as on March 25, 1981 whereas  in Great  Britain & Ireland on January 24, 1984 and in Switzerland on  January 20, 1984. The products of the plaintiffs have acquired a lot of  reputation and  goodwill  under the said trade mark Duracell Utlra.  Their  goods  are known  all  over the word including India under the said  trade  name.  The defendants  without  any right or title have started using the  said  trade mark  Ultra  for their products batteries. The plaintiffs came to  know  in regard  to this fact on June 25, 1998. The defendants are thus passing  off their  batteries as that of the plaintiffs knowingly and  consciously  with ulterior  motive in order to reap the benefits of the goodwill and  reputation  built by the plaintiffs. This misrepresentation of the goods  by  the defendants is likely to cause confusion in the mind of the public and  they would purchase the goods of the defendants considering them as that of  the plaintiffs. Hence need for an injunction from this Court to interdict  them from doing so.\n<\/p>\n
12.  While  countervailing the above arguments learned senior  counsel  for the  defendants  Mr.  V.P. Singh has contended that the word  Ultra  is  of common usage and it is descriptive of the quality of the goods and no  body can  claim  exclusive right to use the same. Everybody is free to  use  the same.  In  any case the defendants are the prior user of the  said  alleged trade  mark, in comparison to the plaintiffs. Hence, the plaintiffs  should not have any grievance on the said score against the defendants. Trade mark Ultra  cannot  acquire any goodwill and reputation in such a  short  period inasmuch  as the plaintiffs claim the usage of the same in India since  2nd week  of June. The defendants are selling their batteries under  the  trade mark BPL Ultra whereas the plaintiffs are selling their batteries under the trade  mark  Duracell Ultra. The two trade marks are  altogether  different from  one another. Thus there is no possibility & likelihood of any  confusion.   Furthermore   the  packing  material  and  get  up   of   the   two products\/batteries is vastly different. Hence batteries manufactures by the defendants can never be treated as that of the plaintiffs. Thus the  grievance of the plaintiffs is without any basis.\n<\/p>\n
13.  I  have heard the learned counsel for both the parties  at  sufficient length  and have very carefully examined their rival contentions  and  have given my anxious thoughts thereto.\n<\/p>\n
14.  It  is manifest from the fact and arguments canvassed above  that  the plaintiffs  through the present petition want to interdict  the  defendants from  selling their batteries under the trade mark ‘Ultra’ as the  same  is tantamount to passing off their goods as that of the plaintiff. The bone of contention  in between the parties is the sale by the defendants  of  their batteries  under  the trade mark Ultra. A good salesman, according  to  the Vice-President of Chrysler Corporation, has got the following qualities. He has the curiosity of a cat, the tenacity of a bull dog, the friendship of a little child, the diplomacy of a way ward husband, the patience of a  selfsacrificing  wife, the enthusiasm of a sinatrafan, the assurance of a  Harvard  man, the good humour of a comedian, the simplicity of a  jackass  and the tireless energy of a bill collector. Above mentioned are the attributes of  a good salesman without any reference to the quality of the product.  A salesman  would  succeed only in selling hose goods which  have  got  some inner worth in them. If a particular product is worthless, he would not  be in  a position to sell it, howsoever perfect he may be in his art of  selling.  He cannot instill a soul into a dead body. Thus a particular  product is  sold  by its worth and quality. The worth and quality  of  product  are known  to the consumer and customer when they use it and consume it  for  a considerable  period. With the passage of time the product acquires a  name and fame and reputation which brings the customer. It is technically  known as goodwill.\n<\/p>\n
15.  The  goodwill of a business is ordinarily represented by a mark,  symbol,  name and a badge which is attached to the goods in order  to  distinguish them from the other goods of the same type. It indicates a source and origin of the goods from particular business house, firm and industry.\n<\/p>\n
16.  It is the goodwill of a particular business which is built by a trader by his hard labour and the sweat of his brow, over a number of years  which is very jealously guarded by him. He would guard it as the eyelids guard an eye.  It is the fruit of his labour and he would not like to share it  with others.\n<\/p>\n
17.  Thus  whenever  a defendant passes off his goods as the goods  of  the plaintiff  it would give rise to a cause of action in his favour.  This  is exactly the grievance of the plaintiffs in the present case which they have given vent to through the institution of the present suit.\n<\/p>\n
18.  The term “passing off” has not been defined anywhere under the Trade & Merchandise Act though there is a reference to the same under Section 27(2) and  Sections  105(C) and 106 of the Act. Eminent  jurist  Salmond  while animadverting  on an action for passing off has got to say  the  following: “The gist of the conception of passing off is that the goods are in  effect telling  a  falsehood about themselves, are saying some thing  about  themselves, which is calculated to mislead. The law on this matter is  designed to  protect traders against that form of unfair competition which  consists in  acquiring  for  oneself, by means of false or  misleading  devices  the benefit  of  the  reputation already achieved by rival  traders.”  (Law  of Torts, 17th Edn. p. 401).\n<\/p>\n
19.  Free  and fair competition in the business is a must. It is very  life blood  to sustain the trade and industry. In the absence of the same it  is inconceivable to have the goods at proper rate and of good quality. However, every liberty to be properly enjoyed must have certain checks and restrains otherwise  it  is likely to degenerate into an anarchy. “Trading  must  not only  be  honest  but must not even unintentionally be  unfair”  (per  Lord Morris in Parkar Knoll Vs. Knoll International, 1962 RPC 265). Thus the law of  passing off came into being to preclude unfair trading and  to  protect the  rights  of the traders to the goodwill which they  have  developed  in their business over a period of time.\n<\/p>\n
20.  The  plaintiff to succeed in an action for passing must show the  following:-\n<\/p>\n
     1. That there is a misrepresentation by the defendant  with regard to his goods which is likely to lead to confusion in the mind  of      the  people as a result whereof they may treat the goods  of  the defendant as that of the plaintiff. \n \n\n\n     2.  Such representation is likely to cause damage  to  the reputation, goodwill and fair name of the plaintiff. \n \n\n\n     3.  The said reputation must have been made during  the  course of the trade. \n \n\n\n     4. Plaintiff must be the prior user of the trade mark in  point of time than the defendant. \n \n\n\n     5. Registration of the trade mark is inconsequential in  an action for passing off. \n \n\n\n     6.  Plaintiff need to prove actual loss and damage in  an  action for passing off. \n \n\n\n<\/pre>\n
21.  Learned counsel for the defendants has contended that the word ‘Ultra’ is a descriptive word. It is neither a fancy word nor a coinage of any one. It is a dictionary word with a definite meaning to it. The word ‘Ultra’  as per  the  Concussed Oxford Dictionary means” beyond; on the  other  side  of extremely  excessively”. Since the said word is a word of English  language the  Plaintiffs cannot claim any exclusive rights therein. It is  simply  a laudatory epithet which is used in order to described the quality trade  ad trait  of a particular article in the market. Hence anyone can us the  same and  the plaintiffs could possibly have no objection to the same. The  user of  such a word cannot be registered as a trade mark under Section 9(d)  of the Trade and Merchandise Marks Act, 1958.\n<\/p>\n
22.  Learned counsel of the plaintiffs, on the other hand have urged to the contrary. According to them, a descriptive word can be very well registered as  a  trade mark. There is no bar to the use of descriptive  word  with  a meaning in English language of being registered as a trade mark.\n<\/p>\n
23.  It is a well recognised principle of law that a trader or a  businessman  can acquire exclusive rights to use a particular word with  dictionary meaning  as  a trade mark if it is shown to the satisfaction of  the  Court that  it has acquired a secondary meaning or a distinctive  character  with the  constant user for a considerable period of time. The user of  the  impugned word must be to such an extent that it has lost its primary  meaning and  has acquired a distinctive character. The moment the same is  used  it must  remind the consumer of the goods of the plaintiffs. It has become  so popular with the public by way of goodwill or a reputation that the  moment it is used and referred to a picture emerges in the mind of the consumer of the article in question which is being sold under the said trade name. Thus the only qualification attached to the use of a descriptive word as a trade mark  is that it must have been associated and used in connection with  the goods of the plaintiffs for such a consirable period that it has come  to acquire an altogether different meaning other than the one which it conveys in the language.\n<\/p>\n
24.  Christopher  Wallow in his book entitled “The Law Of Passing  Off”  at page  315 under the holding “Descriptive terms and secondary  meaning”  has got  this  to  say on this aspect of the matter “As  an  entirely  separate matter,  a  trader who chooses to use a name or mark which is  prima  facie descriptive  of  his  goods, services or business runs the  risk  that  the public will continue to use the term, in its descriptive sense rather  than identifying it with him. He must prove that the mark has acquired a secondary meaning as denoting his goods, and the burden of doing so is higher  in proportion to the descriptive quality of the mark. Even if secondary  meaning  is proved two problems remain. One is that no trader can be  prevented from using the word in its old descriptive sense if he avoids  misrepresentation.  The second is that other traders may use similar and  equally  descriptive names or marks as their own and will be allowed to do so even  if a degree of confusion results”. He further goes on to comment “A mark which is  prima  facie descriptive will only be protected if it can be  shown  to have  acquired secondary meaning; that is to say if it has become  distinctive of the plaintiff. Of course distinctiveness is an essential  precondition  for all marks, whether descriptive or fancy, but the burden of  proof is  significantly  higher for prima facie descriptive terms” (at  page  308 referred  to by learned counsel for he defendants during the course of  his arguments).\n<\/p>\n
25.  To  the same effect are the observations of Kerly in his book “Law  of Trade Marks and Trade Names.”\n<\/p>\n
26.  It  was  held as far back as the year 1896 by the House  of  Lords  in Reddaway Vs. Banham, (Reports of Patent, Design, and Trade Mark Cases, Vol. XIII, page 218),”….. that when words which are descriptive of an  article have come to denote the goods of a particular manufacturer, he is  entitled to  restrain  others from using them so as to deceive  purchases,  notwithstanding that the word are a description of the goods;….”.\n<\/p>\n
27.  The  same view was given vent to by Hon’ble Supreme Court  in  Kaviraj Padnit  Durga  Dutt Sharma Vs. Navaratna Pharmaceutical  Laboratories,  ; and by this Court in different judgment i.e.,  M\/s. Kala  Niketan,  Karol  Bagh,  New  Delhi  Vs.  M\/s.  Kala  Niketan,   G-10, (Basement), South Extension Market-I, New Delhi; ; Charna Dass & M\/s Veer Industries (India) Vs. M\/s. Bombay Crockery House, 1984 PTC 102; Globe Super Parts Vs. Bule Super Flame Industries, AIR 1986 Delhi  245 and Madan Lal and others Vs. Janardan and Others, .  Thus it  can be held without any hesitation that there is no bar and  impediment in  the  use of descriptive word by way of trad mark provide it  is  shown that  it has become almost synonymous with the goods of the plaintiffs  and thereby has lost its primary meaning.\n<\/p>\n
28.  Now, the question which falls for decision is as to whether the plaintiffs  have  succeeded herein to have shown the same in the  present  case. Trade mark Ultra cell was got registered in Class 9 in Germany on March  25, 1981  whereas  the  same was registered in  Switzerland,  Spain,  Portugal, France,  Australia,  Beneluk and United Kingdom on January 20, 1984  as  is manifest  from para 1 of the replication, in reply to paras 1 to 5  of  the written statement. It is also clear from the said paragraph that the application  for  registration of the trade mark Ultracell is pending  in  Italy since September 8, 1982. Similarly, an application for registration of  the trade mark Duracell Ultra is pending in India (vide para 8 of the  plaint). The  plaintiffs have produced quite a good number of documents in order  to prima facie show and prove that the trade mark Ultra has been registered in different countries on the dates mentioned above.\n<\/p>\n
29.  It has been urged for and on behalf of the plaintiffs that the  plaintiffs  have invested huge amounts in advertising and familiarizing the  consumers with Duracell Ultra all over the world and throughout the length and breadth  of  the  country and have thus acquired very  wide  reputation  in respect  of  the  above said trade mark Duracell Ultra.  The  knowledge  and awareness of the trade mark Ultra in respect of the goods belonging to  the plaintiffs is not restricted to the people of the countries where the  said trade mark is being used for a number of years. The reputation and goodwill of the said trade mark has not only transcended the geographical boundaries of the said countries but also have permeated every nook and corner of  the world.  The plaintiffs prior to launching of the batteries under the  trade mark Duracell Ultra initiated actions and took up steps in order to familarise  the consumers and market with regard to the intended launch of  Duracell Ultra. This action on the part of the plaintiffs included  publication of articles and advertisements in different Newspapers and Journals.\n<\/p>\n
30.  Project Spinster: It was undertaken on July 25, 1996 in order to develop  marketing strategy for the introduction of the battery under the  trade mark Duracell Ultra. A meeting was held in connection therewith on July 14, 1997 photocopies of the same have been placed on the file of the Court.\n<\/p>\n
31.    Then there is a letter dated July 28, 1998 from Peter Hoping  Associates Inc. to M\/s. Milagros Mendez Gillette Company, Prudential Tower Building,  Boston.  It shows that the enclosed material was sent  in  connection with  the  use of the term ultra, for a study which was fielded  in  August 1997.\n<\/p>\n
32.  Then  there  is a copy of the Advanced Battery  Name  Test  Supprvisor Specifications dated August 15, 1997.\n<\/p>\n
33.  Duracell  Ultra also finds a mention in the Annual Report of the  Gillette Co. for the year 1997. It is a report dated October 1997.\n<\/p>\n
34.  The  art  work for Duracell Ultra was Finalised on October  16,  1997. Sample  of  Duracell Ultra were made available for  performance  testing  in October, 1997.\n<\/p>\n
35.  The plaintiffs have also placed photocopies of extracts from different Journals  such  as, Asian Photography dated March 1, 1998,  Economic  Times dated  February  20,  1998, International Business dated  March  15,  1998, Business Standard dated June 15, 1998, Pioneer dated June, 15, 1998, Better photography dated June 1, 1998, News Scan dated June 10, 1998 and Times  of India dated June, 15, 1998, in order to show and prove that wide  publicity was  made  with  regard to the launching of Duracell  Ultra.  Report  dated August  5,  1998 is with regard to the market survey conducted by  IMRB  to assess  the impact of wide publicity and availability of Duracell Ultra  in the Indian market.\n<\/p>\n
36.  Besides  the  above the plaintiffs have also placed on  record  photocopies  of the invoices with regard to the sale of Duracell Ultra in  Great Britain which show sales worth million of rupees. These invoices are  dated March 4, 1998; April 5, 1998; May 1, 1998; May 5, 1998; May 6, 1998; May 7, 1998; May 8, 1998; May 14, 1998; and May 22, 1998. Then there are  invoices with  regard to the sale in this country which are dated June 23, 1998  and June 24, 1998.\n<\/p>\n
37.  Inspired  by  the  above documents placed on the file  of  this  Court learned counsel for the plaintiffs, Mr. Mukul Rohatgi, Senior Advocate, has vehemently  argued that the said documents go to show at least prima  facie that the plaintiffs are the prior user and adopter of the trade mark  Duracell  Ultra. Sales worth millions of rupees were made under the said  trade mark in Great Britain.\n<\/p>\n
38.  The defendants on the other hand have not placed even a tiny piece  of paper  in order to show prima facie that they ever made  any  advertisement with  regard to their cells under the trade mark BPL Ultra. However, it  is true that the defendants have placed on record a report from Palmadai Ultra Power.  Then there is a purchase order dated January 6, 1998 from  BPL  PTI Chemicals  to M\/s. Palmadai Design which shows that a sum Rs. 12,000\/-  was paid  for  concept  design and layout of BPL Ultracell. Again  there  is  a letter from BPL PTI Chemical to Shetron Ltd. dated January 21, 1998 enclosing  positive for sample printing of mental jackets. Then there are  photocopies  of the invoices dated January 22, 1998 from Universal Print  System Ltd. to BPL PTI Chemical Ltd. for making positive for metal jackets  photocopies of the invoice dated January 27, 1998 raised by Palamadai Design  to BPL PTI Chemical for preparation of design and art work. The invoice  dated March 4, 1998 from Shetron Ltd. for the supply of printed material  jacket. Letter  dated March 24, 1998 from BPL to Color Cartons Ltd. asking them  to supply HLS Coated Chromo Paper with Ultracell printed on it. Invoice  dated June 5, 1998 raised by BPL PTI Chemicals against BPL Ltd. Calcutta, Invoice dated  July 6, 1998 from BPL PTI Chemicals to BPL Ltd. c\/o Shivam  Agencies Pvt. Ltd. The defendants have also placed on record invoices giving details of the sales conducted by BPL PTI to BPL Ltd. for the month of June,  1998. Then there is an invitation care for the launch of said dry cell battery on June  15,  1998, invoices dated June 19, 1998 raised by BPL Ltd.  on  their distributor in New Delhi. There are invoices dated June 30, 1998 raised  by BPL Ltd. on their distributors all over India.\n<\/p>\n
39.  After going through the documents placed on record it becomes  crystal clear that the latest sale made by the defendants are to their distributors dated June 19, 1998.\n<\/p>\n
     The other documents which have been placed on record by the defendants are  in  connection with their preparations which they made  for  launching their  product, i.e.., the dry cell battery under the trade name  BPL  Ultra such  as with regard to design and jackets for their product. The  earliest document  in  connection therewith which has been placed on the  record  in dated December 27, 1997.\n<\/p>\n
40.  The plaintiffs on the other hand, have shown that they got their trade mark  registered as far back as on March 25, 1981. They further  got  their trade mark Ultracell registered on January 20, 1984 in different countries. The  Project Spinster was lunched on July 25, 1996 in order to  develop  the marketing  strategy for introducing the different type of  batteries  under the mark Duracell Ultra. Since then they continued to take different  steps for the launching of their product under the trade name Duracell Ultra  on, different  dates in the year 1997 and 1998. Ultimately the goods were  sold worth millions of rupees during the month of March, April and May in  Great Britain  and the same were also sold in India on 23.6.1998. It can thus  be safely  concluded  therefrom  that the plaintiffs are the  prior  user  and adopter of the trade mark Duracell Ultra.\n<\/p>\n
41.  Learned  counsel for the defendants has then contended that  the  sale made by the plaintiffs in Great Britain cannot be taken into  consideration while deciding the question of prior user. I am sorry I am unable to  agree with  the contention of the learned counsel for the defendants. No  reason, whatsoever was given as to why the said sales cannot be taken into  consideration while deciding the question as to who is the prior user except that the  sales were made by one Duracell North Atlantic Group. Hence, the  said sales cannot enure for the benefit of the plaintiffs and it cannot be  held on that score that they are the prior users. Learned counsel while  advancing  the  said  arguments is oblivious of the fact that it  has  been  very clearly  mentioned  that  the said company is a division  of  the  Gillette Company (vide para 5 of the replication). I have already held in my discussion  while  meeting  the said point that Gillette Company  is  the  parent company  of  the plaintiffs herein. Hence, I feel that the  plaintiffs  are justified in concluding that the said sales would be the sales on behalf of their  sister concern, i.e. a division of M\/s. Gillette company, which  the plaintiffs are.\n<\/p>\n
42.  There  is another side of the picture. The world with the  passage  of time  has  become almost just like a city on account of the  technical  advancements  in technology such as wireless, telephone,  television,  cinema and computers so on and so forth, made by the people inhabiting this terrafirma.  Similar advancements have been made in the means of transport  such as  railways,  ships, airlines. These days if a product is  launched  in  a particular  country  the goodwill and reputation which a  seller  earns  by selling  his commodities in the market do not remain confined to  the  four corners  of  the said country. The reputation and  goodwill  and  intrinsic worth of the said goods spread like a wild fire to every nook and corner of the world through magazines and newspapers, television, telephone,  computers, films and cinema. I am supported in my above view by the  observations of  Division  Bench  of this Court as reported in N.R. Dongre  &  Ors.  Vs. Whirlpool  Corporation and Ors.,  “…A product  and its trade name transcends the physical boundaries of a geographical  region and acquires a transporter or overseas or extra-territorial reputation  not only  through import of goods but also by its advertisement. The  knowledge and  the awareness of the goods of a foreign trader and its trade mark  can be available at a place where goods are not being marketed and consequently not being used”.\n<\/p>\n
43.  It was then observed in para 14 of the said judgment, “….The  knowl-edge  and awareness of a trade mark in respect of the goods of a trader  isnot  necessarily  restricted only to the people of the country  where  such goods  are  freely available but the knowledge and awareness  of  the  same reaches  even the shores of those countries where the goods have  not  been marketed.  When a product is launched and hits the market in  one  country, the  cognizance of the same is also taken by the people in other  countries almost  at the same time by getting acquainted with it  through  advertisements in newspapers, magazines, television, video films, cinema, etc”.\n<\/p>\n
44.  The same view was again reiterated by a Single, Judge of Calcutta High Court as reported in 1996, PTC (16) in Calvin Klein Inc. Vs.  International Apparel  Syndicate. “….The international reputation of the petitioner  in the  name and mark Calvin Klein Jeans, shirts and t-shirts is borne out  by the  advertisements of the respondents where Calvin Klein had  been  advertised as the “Great American Classic”. There is nothing American about  the respondent  No.  1.  One of the Magazines relied upon  by  the  respondents refers to “Another Denim Giant Enters India”. The only Denim Giant with the mark of Calvin Klein outside India is the petitioner. There is no  evidence to  the contrary. The insistence of trade within the country by the  applicant  overlooks the nature of the complaint in passing off. The  insistence of  trade within the country by the applicant overlooks the nature  of  the complaint  in  passing  off. The basis of the action is  deception  or  the persuasion of the public to purchase goos of one in the belief that it  is another’s.  It should not matter whether that other carries on business  in the country. “The same view was reiterated by a Single Judge of this  Court in  1997  PTC (17) 453 para 10 in Time Warner Entertainment Co.,  L.P.  Vs. A.K. Das.\n<\/p>\n
45.  The discussion on the above point would not be complete unless I refer to  the observations of a Single Judge of Great Britain in a case where  no sale  was  made by the plaintiffs in a case for ad interim  injunction.  By that time only publicity was made for launching a particular products. I am tempted here to reproduce the observations made by Sir Robert Megarry  V.C. as  reported  in 1981 Fleet Street Reporter (Vol. 7) page 228….  “….  I begin with the goodwill claimed by the BBC to have been guilt up in  CARFAX as  applied  to  their  scheme. Although that  scheme  has  not  yet  been launched, that does not prevent the BBC from having built up goodwill in it which is entitled to protection: see W.H. Allen & Co. Vs. Brown Watson Ltd. (1965) R.P.C. 191, where the title of an unpublished book was held to  have become  distinctive  of that book, so that it could  be  protected  against publication  of  a  rival book under the same name. Here,  there  is  ample evidence  that a significant par of the public knew about the name  CARFAX as distinctive of the BBC’s system.”\n<\/p>\n
46.  It  is  said  that business today consists in  persuading  people  to purchase  the  goods.  This can be achieved  only  through  advertisements. Advertising  is the life of trade. By advertising one gains reputation  and acquires  goodwill  with regard to the goods manufactured and sold  in  the market.  I am supported in my above view by the observations of a  Division Bench as reported in M\/s. J.N. Nichols (Vimto) Ltd. Vs. Rose & Thistle, AIR 1944  Cal.  43  (para  20),  wherein  their  Lordships  opined  as   under: “…..Incidentally  actual sale of the goods bearing such a mark. `Use’  to my  mind can be in any form or way and does not necessarily mean that  even more  advertisement without having even the existence of the goods  can  be said to be an use of the mark and I need not dilate on this score”.\n<\/p>\n
47.  It  has then been urged that the plaintiffs used the trade mark  Ultra for  a very short period hence the plaintiffs could not have  acquired  the necessary  goodwill and reputation during the said period. I am sorry I  am unable  to  agree with the said contention. There is prima  facie  evidence with regard to the sale of the goods under the trade mark Ultra with effect from March, 1998 worth million of Rupees. Besides the sale, the  plaintiffs have  acquired goodwill and reputation through advertisements  as  observed above.  Furthermore, the Courts are required to see whether the  plaintiffs have acquired goodwill or reputation or not. They are not required to  take into  consideration the duration of the period during which the sales  have been  made. There is no such legal requirement. I am supported in my  above view by the observations of Mr. Justice Buckley as reported in Standard Vs. Reay, (1967) RPC 589, “… As regards the goodwill which the plaintiffs did or did not have at the time when the efendants stated their fish and  chip business  in  November 1966. Mr. Momckton says with great  force  that  the plaintiffs  then  had only been trading for some three  weeks,  or  perhaps rather  more if one does not take the defendant’s business  as  effectively under  way until rather later than 5th November, 1966, and that that  would be a very short time in which to acquire a goodwill of any value  connected with a trade name. It would seem from the evidence that probably the plaintiffs  were the only people in the Isle of Wight carrying on this  sort  of trade  in  the sort of way at the time when they began  their  business  in October 1996. There is no suggestion that there were any other mobile  fish or chip vans then operating in the Isle of Wight, and, although a period of three, four or five weeks may be a short time in which to build up a  good-will associated with a particular trade name, it does not seem to me to  be by any means impossible to suppose that amongst those members of the public who  enjoy fish and chip and who find it convenient to be able to buy  them ready  cooked and supplied at convenient placed where they can go and  collect them, a new business of this kind might not attract to itself  considerable notice and trade within quite a short time…..”.\n<\/p>\n
48.  Learned  counsel for the defendants Mr. V.P. Singh,  Senior  Advocate, has contended that the present suit is not maintainable inasmuch as  plaintiff  No.  2 which claim themselves as an authorised user of  the  impugned trade  mark Ultra have filed to place on record anything trade  mark  Ultra have  failed  to place on record anything in order to show and  prove  that they  have  not any such right in the trade mark in  question  i.e.  Ultra. Hence  the  present  suit is liable to be dismissed on  this  short  ground alone.\n<\/p>\n
49.  Learned counsel for the plaintiffs have urged to the contrary. According to them plaintiffs No. 3 who are very much a party to the present  suit are  the proprietor of the impugned trade mark Duracell Ultra.  Hence  they were competent to allow defendant No. 2 to use the said trade mark Duracell Ultra  in connection with the batteries to be so throughout India.  Learned counsel  in this connection have placed on record photo copies of  the  two agreements  i.e.  the agreement dated October 5, 1994 and  registered  user agreement  dated June 11, 1998 whereunder plaintiff No. 3 who are the  proprietor  of  the  trade mark Duracell Ultra permitted plaintiffs  No.  2  a company  incorporated under the Companies Act, to manufacture, produce  and sell alkaline batteries under the trade mark Ultra.\n<\/p>\n
50.  The plaintiffs have at length dealt with this point in their  replication (vide para 5). According to them, plaintiff No. 1 M\/s. Indian  Shaving Products  Ltd. is a company incorporated under the Companies Act, 1956  51% of  the shares in the said company are held by Gillette Company  of  U.S.A. Whereas plaintiff No. 2 is Duracell India Pvt. Ltd., a company incorporated under the Companies Act, 1956, 71.59% of the equity in the said company  is held by Duracell Inc. U.S.A. The controlling stake in Duracell Inc., U.S.A. has been taken over by the Gillette Company, U.S.A. Plaintiff No. 3 is N.V. Duracell, S.A. and is the proprietor of the impugned trade mark and is also a part of Duracell Inc. U.S.A., as an associate company like Duracell Gmbh. and  various  other  Duracell companies throughout the world.  It  is  thus manifest from above that Gillette Company of U.S.A. is the patria  potestas of all the companies who are a party to the present suit.\n<\/p>\n
51.  There  is another aspect of the matter. Admittedly plaintiff No. 3  is the  proprietor  of the trade mark Ultra. There is no dispute on  the  said point.  Hence the present suit is very much maintainable. They  could  have even  granted an oral permission to plaintiff No. 2 to use the  said  trade mark Ultra. Admittedly there is no objection from the side of plaintiff No. 3  to  the use of the trade mark Ultra by plaintiff No.  2.  Therefore  the argument  of the learned counsel for the defendants, referred to above,  is without any substance and is liable to be rejected.\n<\/p>\n
52.  It  was next argued by the learned counsel for the defendant that  the said  trade  mark Ultra is being used by  several  other  persons\/companies besides  the defendants such as Toshiba, National and Sony. Thus  the  same has  become  publici juris and the plaintiffs can not claim  any  exclusive right therein.\n<\/p>\n
53.  Admittedly,  the said parties are not before this Court.  Neither  the said parties are claiming any relief against the plaintiffs nor the  plaintiffs  are claiming any relief against them. Hence the said  defense,  that other  persons are also using the said trade mark, is not available to  the defendants.  The  Court is called upon to decide disputes  in  between  the parties  which  are before it. The Court cannot be expected  to  adjudicate upon  a  dispute  which is not before it. A matter very much  akin  to  the matter in hand came up before a single Judge of this Court. It was observed in  Cool ways India Vs. Princo Air Conditioning and  Refrigeration,  1993(1) Arbitration  Law Reporter 401. The contention that a plaintiff  himself  is usurping  or infringing the trade mark of a third party was not to be  gone into by the Court while deciding the issue in between the parties. What  is to  be seen by the Court is as to whether the plaintiff has acquired  good-will and reputation for his products. Moreover, the plaintiffs have  placed on record a report on Urban Market for Batteries, October, 1997. A  perusal of  the  same shows that Sony New Ultra was sold only one unit  during  the month  of May, 1997. There is no sale in the month of June,  July,  August, September, 1997. Similarly, Sony has got no market share during the  months of May, June, July, August and September, 1997. Thus the same is absolutely of no avail to the defendants. To the same effect is the view expressed  by a  learned Single Judge of this Court in Amrit Soap Company Vs. New  Punjab Soap  Factory, 1989(2) Arbitration Law Reporter 242. “The  allegation  that some other manufacturers are also using the same trade mark is of no consequence as the Court is concerned with parties before it only.”\n<\/p>\n
54.  Learned  counsel has then argued that the colour scheme and get up  of the  two  products are entirely different. Furthermore the  plaintiffs  are using trade mark Duracell Ultra whereas the defendants are using the  trade mark  BPL Ultra. The said distinguishing features are sufficient enough  to separate one product from the other and no misrepresentation is likely  to be  caused  in  between the goods sold by the plaintiffs and  that  of  the defendants.  The purchasers who propose to purchase goods of the  plaintiff can  easily  pick up them whereas those who want to have the goods  of  the defendants  can  have  them easily by identifying them. I am  sorry,  I  am anable to agree with the contention of the learned counsel for the  defendant.  The plaintiff admittedly are not objecting to the colour  scheme  and get up of the jacket of the goods of the defendants. Their case is that the defendants  have  usurped their trade mark and as such they are  likely  to filch their trade and cause lose and damage to their reputation as well  as to their business. Thus the defense put forward by the defendants that  the two  products  are dissimilar in their colour scheme and get up  and  dress material does not come to their rescue. Had the case of the plaintiff  been that the trade mark used by the defendant is deceptively similar to that of the  plaintiffs, in that eventuality the defendants could have  shown  that their  goods  are not likely to be treated and taken as the  goods  of  the plaintiffs  on account of their dissimilarity and distinctive features  in colour  scheme  and get up and dress material. To the same effect  are  the observations  of a Division Bench of this Court as reported in  B.K.  Engineering Company, Delhi Vs. U.B.H.I. Enterprises (Regd.) Ludhiana and another, .\n<\/p>\n
55.  In  the circumstances stated above this Court is of the view that  the plaintiffs  have  established a prima facie case in their  favour  for  the grant of ad-interim injunction. In case the injunction is not granted  they are  likely to suffer irreparable loss and damage and it will be well  high impossible  to  compensate them in terms of money. On the  other  hand  the defendants  are not going to suffer any irreparable loss and  damage.  They can continue to sell their batteries under the other trade mark B.P. Excel and Power.\n<\/p>\n
56.  earned senior counsel for the defendants has referred to quite a  good numbers of authorities during the course of his arguments :\n<\/p>\n
     (i)  Century Traders Vs. Roshan Lal Duggal & Co. & Ors. .\n<\/p><\/blockquote>\n
     (ii) J.R. Kapoor Vs. Micronics India, 1994 (2) A.I.R. 274.\n<\/p><\/blockquote>\n
     (iii)  Proctor & Gamble Company Vs. Satish Patel & Ors. 1997  (1)  A.L.R. 158.\n<\/p><\/blockquote>\n
     (iv) Standard Vs. Reay, (1967) RPC 589.\n<\/p><\/blockquote>\n
     (v)  Aktiedolaget Jonkoping Vulcan Vs. V.S. Palanichamy  Nadar  & Ors., .\n<\/p><\/blockquote>\n
     (vi) City  Link  Travel Holdings Ltd. & Ors. Vs.  Lakin  &  Anr., F.S.R. (1979) 653.\n<\/p><\/blockquote>\n
     (vii)  Prakash  Industries Ltd. Vs. Rajan Enterprises,  1993  (4) Delhi Lawyer 134.\n<\/p><\/blockquote>\n
57.  I  have very carefully gone through the said authorities, yet I am  of the view that they are not applicable to the facts and circumstances of the present case.\n<\/p>\n
58.  In view of the above the application of the plaintiffs is allowed. The defendants,  their servants and agents are hereby restrained from  selling, offering for sale, advertising, directly or indirectly dealing in batteries under the trademark Ultra and from passing off their goods as the goods  of the  plaintiffs or under any other trade mark which is deceptively  similar to the trade mark Duracell Ultra.\n<\/p>\n
59.  Consequently,  the  application under Order 39 Rule 4 of the  Code  of Civil Procedure moved by the defendants is hereby dismissed.<\/p>\n","protected":false},"excerpt":{"rendered":"
Delhi High Court Indian Shaving Products Ltd. & … vs Gift Pack & Anr. on 9 November, 1998 Author: M Shamim Bench: M Shamim ORDER Mohd. Shamim, J. 1. This is an application (IA 5333\/98) by the plaintiffs under Order 39 Rules 1 & 2 read with Section 151 of the Code of Civil Procedure […]<\/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-98264","post","type-post","status-publish","format-standard","hentry","category-delhi-high-court","category-high-court"],"yoast_head":"\nIndian Shaving Products Ltd. & ... vs Gift Pack & Anr. on 9 November, 1998 - 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\/indian-shaving-products-ltd-vs-gift-pack-anr-on-9-november-1998\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Indian Shaving Products Ltd. & ... vs Gift Pack & Anr. on 9 November, 1998 - 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