Delhi High Court
Valvoline Cummins Limited vs Apar Industries Limited on 25 November, 2013
Author: Mukta Gupta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ IA 16704/2011 in CS(OS) 2597/2011
% Reserved on: 11th September, 2013
Decided on: 25th November , 2013
VALVOLINE CUMMINS LIMITED ..... Plaintiff
Through: Mr. Sachin Gupta and Mr. Shashi P.
Ojha, Advocates.
versus
APAR INDUSTRIES LIMITED ..... Defendant
Through: Mr. N. Mahabir and Dr. Sheetal
Vohra, Advocates.
CORAM:
HON'BLE MS. JUSTICE MUKTA GUPTA
1. By this application under Order XXXIX Rule 1 and 2 CPC the
Plaintiff seeks ad-interim injunction in favour of the Plaintiff and against the
Defendant in relation to the trademark „4T PREMIUM‟ or any other mark
identically or deceptively similar to the Plaintiff‟s mark „4T PREMIUM‟
amounting to infringement of the Plaintiff‟s registered trademark under No.
1261544 or leading to passing off the goods or business of the Defendant as
that of the Plaintiff.
2. Learned counsel for the Plaintiff contends that the Plaintiff is a 50-50
joint venture of Valvoline International Incorporation, USA and Cummins
India Limited, the two 500 Fortune Company, that is, Ashland Inc. and
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Cummins. Inc. The Plaintiff is India‟s fastest growing lubricant marketer and
producer of quality branded automotive/industrial products. The Plaintiff‟s
products include automotive lubricants, transmission fluids, gear oil,
hydraulic lubricants, automotive filters, specialty products, greases and
cooling system products. The Plaintiff‟s products are available in more than
15,000 retail counters across India. The products of the Plaintiff are
imported under various famous trademarks one of which is „4T PREMIUM‟
which has been used extensively, continuously and uninterruptedly by the
Plaintiff since the year 2003 in India. The Plaintiff has been manufacturing
and selling multi-grade engine oils under the trade name „4T PREMIUM‟
under the strict quality control and supervision. The products of the Plaintiff
under the trademark „4T PREMIUM‟ improve engine life and provide
maximum power, besides giving special protection to air cooled engines of
four stroke motorcycles and are thus recommended for use in four stroke
model Hero Honda, Bajaj, TVS, Yamaha, Suzuki, Honda, Kinetic
Engineering, LML and all other makes. The Plaintiff is the proprietor of the
trademark „4T PREMIUM‟ in Class-4 for engine oils vide registration No.
1261544 dated 16th January, 2004.
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3. Learned counsel for the Plaintiff states that the plaintiff does not claim
any exclusive right in the use of mark "4T" which indicates four stroke
engine oil as number of other companies are marketing the same however,
the Plaintiff is aggrieved by the Defendants use of the trademark „4T
PREMIUM‟ which is likely to lead to the confusion and deception amongst
the members of the public. The Defendant is neither registered proprietor
nor has filed any trademark application for registration of the trademark „4T
PREMIUM‟. The Defendant has adopted the Plaintiff‟s trademark „4T
PREMIUM‟ with mala fide intention, hence the Defendant is liable to be
injuncted from using the trademark „4T PREMIUM‟. Though number of
companies is using "4T" but none is using „4T PREMIUM‟ and only one
other company Veedol is using the same to which also the Plaintiff has given
a notice. Reliance is placed on Kaviraj Pandit Durga Dutt Sharma vs.
Navaratna Pharmaceutical Laboratories, AIR 1965 SC 980; Sunder Nagar
Association vs. Welfare Club (regd.) and another, 1995 PTC 270; Ishi
Khosla vs. Anil Aggarwal and another, 2007 (34) PTC 370 Delhi.
4. Learned counsel for the Defendant on the other hand contends that the
Plaintiff cannot claim exclusive right either in the word "4T" or "4T
PREMIUM" because the word "4T" denotes four stroke engine and the word
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PREMIUM is a laudatory word descriptive of the goods and no-one can
claim the right to use the word exclusively. The Defendant uses its
trademark „AGIP‟ with „4T PREMIUM‟. The packing of the Defendant is
totally different from the Plaintiff and thus there can neither be any
infringement nor passing of the Defendant‟s goods as that of the Plaintiff.
The Defendant has never used the mark „4T PREMIUM‟ separately and has
always used the same with its trade name „AGIP‟. The Defendant has
already filed an application for cancellation of the Plaintiff‟s trademark
before the Intellectual Property Appellate Board as the same could not have
been registered in the first instance itself. Reliance is placed on Puma
Stationer P. Ltd. and another vs. Hindustan Pencils Ltd., 2010 (43) PTC 479
(Delhi); Nestle India Limited vs. Mood Hospitality Private Limited, 2010
(42) PTC 514 Delhi; J.R. Kapoor vs. Micronix India, 1994 (14) PTC 260
SC; The Gillette Company and others vs. A.K. Stationery and others, 2001
(21) PTC 513 (Delhi); Rich Products Corporation and another vs. Indo
Nippon Food Ltd., 2010 42 PTC 660 (Delhi) and Marico Limited vs. Agro
Tech Foods Limited, 174 (2010) DLT 279.
5. I have heard learned counsel for the parties.
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6. The present suit was filed on 18th October, 2011 when summons in the
suit and notice in the present application was issued. The present application
is pending since then and no ad-interim ex-parte injunction was granted to
the Plaintiff till date. In the meantime pleadings and admission/denial of the
suit are complete and thus issues have been framed however, since the
Defendant has already filed an application before the Intellectual Property
Appellate Board for cancellation of the Plaintiffs trademark the present suit
is directed to be stayed under Section 124 of the Trademark Act. Since the
stay of the proceedings in the suit is not a bar in deciding the application
under Order XXXIX Rule 1 and 2 CPC this Court has proceeded to hear the
application.
7. The case of the Plaintiff is that the Plaintiff is using the trademark „4T
PREMIUM‟ exclusively, continuously and uninterruptedly since the year
2003 in India. The advertising, publicity and sales promotion expenses of
the Plaintiff for the period from 1996-2010 are approximately Rs.
11,92,645,334/-. The claim of the Plaintiff is that due to the extensive
advertising and promotional activities undertaken by it the goods of the
Plaintiff under the trademark „4T PREMIUM‟ have become extremely
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popular amongst the consumers at large. The sales figures of the engine oil
under the trademark „4T PREMIUM‟ are as follows:
Year Volume (Ltrs) Value (Rs.)
2004-2005 22555 2,454,059
2005-2006 103905 11,855,251
2006-2007 47774 6,881,965
2007-2008 141641 15,950,705
2008-2009 324701 43,151,502
2009-2010 406164 56,972,239
2010-2011 412854 62,296,659
8. It is the claim of the Plaintiff that the trademark „4T PREMIUM‟ has
come to be identified with that of the Plaintiff. It has lost its primary
meaning and has acquired a secondary significance as distinctive trademark
used in the course of the trade indicating a source, an indicator and symbol
of highest standard of quality. The Plaintiff applied for and obtained
registration of the trademark „4T PREMIUM‟ in India in Class-4 for engine
oils vide registration No. 1261544 on 16th January, 2004 claiming its user
since 30th September, 2003. It is the admitted case of the Plaintiff that it has
no objection to the use of mark "4T" simplicitor which the other players in
the market are using such as CASTROL POWER, RS GPS 4T, SERVO 4T
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ZOOM, REPSOL 4T RIDER, RELIABLE 4T, HIZOL HONDA 4-T PLUS.
The claim of the plaintiff is to the use of the mark „4T PREMIUM‟ because
the Plaintiff‟s mark has acquired distinctive significance and is now
associated with the product of the Plaintiff. According to the Plaintiff, the
Defendant dishonestly and with malafide intention is using the trademark of
the Plaintiff, infringing its trademark and passing of its goods as that of the
Plaintiff. The case of the Defendant is that the Plaintiff cannot claim any
exclusive right to use the word 4T as the same indicates „four stroke engine
oil‟ and the word premium is a totally descriptive of the goods, is laudatory
in nature and has no trademark significance attached to it. There are other
companies which are using 4T premium with their lubricants with the name
of their company or Extra Premium etc. The use of word PREMIUM in the
oil products is common and global. The Trademark of the Plaintiff has been
wrongly registered and the Defendant has filed an application challenging
the same. The labels of the Plaintiff‟s products and the Defendant‟s products
are entirely different. The colour prints of the same are also totally different.
There is no resemblance between the VALVOLINE 4T PREMIUM of the
Plaintiff and AGIP 4T PREMIUM of the Defendant. The Defendant has
also given his consolidated sales figure. According to the Defendant it
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launched its product AGIP 4T PREMIUM in the year 2007 as AGIP 4T
RED and AGIP SUPER 4T. In August, 2008 the Defendant marketed and
upgraded its products by introducing AGIP 4T RED, AGIP 4T PLUS, AGIP
4T PREMIUM and AGIP 4T ECO. It further upgraded its products in the
year 2011. The use of words RED, PLUS, PREMIUM, ECO and FURY are
totally descriptive, common to trade and have no trademark significance.
9. A perusal of the product of the Plaintiff shows that it uses the name of
its company before 4T PREMIUM, that is, VALVOLINE 4T PREMIUM
and not simplicitor „4T PREMIUM‟. Similarly the Defendant has though
used the word 4T PREMIUM however, the container also depicts its logo
and the company name AGIP. Packaging and colouring etc. of the two
products are totally different.
10 In Marico Ltd. (Supra) while dealing with the trademark „LOW
ABSORB‟ the Division bench of this Court held that in light of ratio laid
down in case of Cadila Healthcare Ltd. v. Gujrat Co-operative Milk
Marketing Federation Ltd. and Ors.2009 (8) AD (Delhi) 350, the Appellant
can have no exclusive ownership rights on the Trade Mark LOW ABSORB.
It was further held that it is unable to hold that the appellant's trademark
"Sugar Free" is a coined word; at best it is a combination of two popular
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English words. This Court upheld the order of the learned Single Judge
refusing the injunction on the point that besides the word LOW ABSORB
TECHNOLOGY‟ the prominent trademark of the Defendant „SUNDROP‟
also appeared on the package. The colour scheme of the respective packages
was also different. Similarly this court in Nestle India Ltd. (supra) refused to
set aside the interim injunction granted on the ground that the expression
„YO‟ cannot be equated with „YO! China‟. „YO!‟ by itself is not a
trademark. Similarly in The Gillette Company and others (supra) this Court
held that the real question to be answered is that whether there would be
confusion and deception in the minds of the consumers. It held that it was
difficult to agree with the submissions of the Plaintiff therein that the use of
trademark „EKCO FLEXGRIP‟ by the Defendant would create confusion
with the Plaintiff‟s trademark „LUXOR PAPER MATE FLEXGRIP‟. It was
held that if the complete trademarks adopted by the two parties are
compared, the same are totally different and confusion seems to be unlikely.
In Rich Products Corporation and another (supra) this Court held that
despite the word „Whip Topping‟ being a common word, the combinations
were totally different in „RICH‟S WHIP TOPPING‟ and „BELLS WHIP
TOPPING. It was held:
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36. Since lengthy submissions were made by both sides with
respect to whether or not "WHIP TOPPING" is a generic and/or
a descriptive expression, it may be necessary to briefly touch
upon this aspect of the matter. The word 'generic' ordinarily
would mean that which has character of or belongs to a genus
or class (see New Shorter Oxford English Dictionary, Edition
1993 at page 1074); whereas the word 'descriptive' would mean
that which seeks to describe, characterized by description,
consist of or concern with description or observable things or
qualities (see New Shorter Oxford English Dictionary, Edition
1993 at page 644). Whether a word or expression is 'generic' or
'descriptive' or both is dependent on the facts and circumstances
arising in a particular case. It is quite possible that a word or
expression which is 'generic', i.e., which refers to a genus or a
class is also descriptive as the word by itself characterize the
qualities of the product. The line dividing the two in certain
cases may get blurred. The word 'whip' by itself means, in the
context of the present case, a light fluffy desert made with
whipped cream or beaten eggs (see New Shorter Oxford
English Dictionary, Edition 1993at page 3670), while the word
'topping' means a top layer or garnish put on food (see New
Shorter Oxford English Dictionary, Edition 1993 at page 3342).
Similarly, the word 'cream' means part of liquid that gathers at
the top; froth etc. or a liquid rich in droplets or particles of the
dispersed phase that forms a separate (especially upper) layer in
an emulsion or suspension when it is allowed to stand or is
centrifuged (see New Shorter Oxford English Dictionary,
Edition 1993 at page 543). The words "Whip Topping", when
juxtaposed would, in my view, be representative of toppings or
garnishes for food items which have cream like quality.
Therefore, it is, in my opinion, both 'generic' as well as
'descriptive' of the product. The submission of Mr Gupta that
the words 'WHIP TOPPING' is distinctive because it relates to a
non-dairy product is not substantiated by any evidence on
record which would demonstrate that the words "WHIP
TOPPING" are associated only with a cream which is not dairy
based.
IA 16704/2011 in CS(OS) 2597/2011 Page 10 of 19
37. It is not disputed by the learned Counsel for the
defendant, as it cannot be, that descriptive words and
expression can be registered. Even if they are not registered
they can be protected, provided it has attained secondary
distinctive meaning by its extensive use and publicity. In other
words use is a question of degree. What one needs to ask
oneself is whether the descriptive mark has become the trade
mark. The defendant can ward off a challenge in respect of a
mark in which the plaintiff claims proprietorship rights and
seeks to enforce his rights whether on the basis of the
registration or otherwise; on the ground that the trade mark is a
descriptive word or consists of words which are descriptive of
the character and quality of the product as long as the use is
bonafide or that the descriptive word is well known or used
extensively by third parties.
38. The plaintiff, in order to demonstrate that "WHIP
TOPPING" has attained secondary distinctive meaning, has
relied upon the affidavits of PW1 to PW4. The plaintiffs'
witnesses attempted to prove the extensive promotion of its
trade mark "RICH'S WHIP TOPPING" through indices such as
the world wide turnover of its product, which included the sales
in India, the amount spent on promotional material and the
extensive publicity received over the years in newspapers and
journals both in India and abroad. I have already observed
hereinabove the use of the mark by itself does not translate into
distinctiveness. The distinctiveness should be of an order which
displaces the "primary descriptive meaning" of the word. The
evidence placed before me falls well short of this standard.
Assuming that one were to accept the evidence produced as an
indicator of the fact that words "WHIP TOPPING", which is
part of the plaintiffs' trade mark "RICH'S WHIP TOPPING",
has attained secondary distinctive meaning, the very fact in at
least in two jurisdictions i.e., the USA and the New Zealand the
plaintiffs' mark "RICH'S WHIP TOPPING" has been registered
with limitation. While the U.S. registration excludes use of the
word 'Topping'; the New Zealand company office has excluded
the use of the words "WHIP TOPPING". Even in India the
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plaintiffs have of their own accord disclaimed their right to the
letter 'S' and the word 'Topping'. In these circumstances, I am
not persuaded to hold that the use of the words "WHIP
TOPPING" by the defendant in its trade mark "BELLS WHIP
TOPPING" would infringe either the statutory rights vested in
the plaintiffs' registered trade mark "RICH'S WHIP
TOPPING", or even constitute violation of any common law
rights that the plaintiffs would have in its mark "RICH'S WHIP
TOPPING" for the reasons given herein below. In the context
of what is said by me above, there is therefore also no necessity
for me to deal with the submission that the defence of
"character" and "quality" referred to in Section 35 of the Trade
Marks Act are used in the adjectible sense, though I have
doubts about the tenability of this argument. The example most
commonly used, which comes to my mind, is that of a 'soap'.
Can 'soap' be used by itself as a mark? The answer in my
opinion is clearly in the negative since it describes the product;
however, it nevertheless is a noun.
11. In Kaviraj Pandit Durga Dutt Sharma (surpa) relied upon by learned
counsel for the Plaintiff the Hon‟ble Supreme Court held that an action for
passing off is a Common Law remedy being in substance an action for
deceit, that is, a passing off by a person of his own goods as those of another,
that is not the gist of an action for infringement. The action for
infringement is a statutory remedy conferred on the registered proprietor of a
registered trade mark for the vindication of the exclusive right to the use of
the trade mark in relation to those goods. It was further held that where the
similarity between the Plaintiff‟s and Defendant‟s mark is too close either
visually, phonetically or otherwise and the Court reaches the conclusion that
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there is an imitation, no further evidence is required to establish that the
Plaintiff‟s rights are violated. It was held that if two marks are identical, no
further question arises and the infringement is made out. When the two
marks are not identical, the Plaintiff would have to establish that the mark
used by the Defendant so nearly resembles the Plaintiff‟s registered
trademark as is likely to deceive a false conclusion in relation to the goods in
respect of which it is registered.
12. In Cadila Healthcare Ltd. v. Gujrat Co-operative Milk Marketing
Federation Ltd. and Ors. 2009 (VIII) AD 350 it was held:
8. In our view, at this juncture i.e. at the interim stage, even
assuming distinctiveness claimed by the appellant in its favor
qua its artificial sweetener, the appellant has rightly been
declined an injunction by the learned Single Judge since it is
evident and has indeed been found by the learned Single Judge
that the use of the term 'Sugar Free' by the respondent is not in
the trademark sense but as a common descriptive adjective. The
learned Single Judge has found and in our view rightly that the
respondent has not used the expression in a trademark sense but
only in a descriptive sense in the following passage:
54. It is important to be borne in mind that use of a
descriptive expression as a trade mark by a trader,
irrespective of the said trade mark having acquired a
secondary meaning and distinctiveness in relation to the
trader's products, does not entitle such trader from
precluding other traders from using the said expression
for the purposes of describing the characteristic features
of their products. I have no hesitation in stating, albeit
without prejudice to the rights and interests of the
plaintiff in the present suit, that by adopting such a purely
descriptive and laudatory expression 'Sugar Free' as its
trade mark, the plaintiff must be prepared to tolerate
some degree of confusion which is inevitable owing to
the wide spread use of such trade mark by fellow
competitors. Simply because the plaintiff claims to be
using the expression 'Sugar Free' as a trade mark much
prior to the launch of the defendant's product Pro Biotic
Frozen Dessert in the market does not give this Court a
good ground for imposing a blanket injunction on the
defendant from using the expression 'Sugar Free',
especially when the defendant intends to use this
expression only in its descriptive sense and not as a trade
mark, and even otherwise, when the use of this
expression is widespread in relation to foods and
beverages.
We fully agree with and reaffirm the said finding.
9. We are unable to hold that the appellant's trademark
'Sugar Free' is a coined word; at best it is a combination of two
popular English words. The mere fact that the appellant's
product cannot be directly consumed or eaten and merely is an
additive does not detract from the descriptive nature of the trade
mark. Once a common phrase in the English language which
directly describes the product is adopted by a business
enterprise, such adoption naturally entails the risk that others in
the field would also be entitled to use such phrases provided no
attempt is made to ride on the band wagon of the appellant's
indubitably market leading product 'Sugar Free'. In this
connection, merely because the attributes of 'sugar free' can be
described by other phrases cannot detract from the common
usage of the phrase 'Sugar Free' as denoting products which do
not contain sugar and any trader which adopts such mark in the
market place, does so with the clear knowledge of the
possibility of other traders also using the said mark. That is
precisely the reason for the denial of protection to such marks
by refusing registration as envisaged by
Sections 9, 30 and 35 of the Act. The said Sections read as
follows: -
9. Absolute grounds for refusal of registration.-(1) The
trade marks-
(a) which are devoid of any distinctive character, that is
to say, not capable of distinguishing the goods or services
of one person from those of another person;
(b) which consist exclusively of marks or indications
which may serve in trade to designate the kind, quality,
quantity, intended purpose, values, geographical origin or
the time of production of the goods or rendering of the
service or other characteristics of the goods or service;
(c) which consist exclusively of marks or indications
which have become customary in the current language or
in the bona fide and established practices of the trade,
shall not be registered:
Provided that a trade mark shall not be refused
registration if before the date of application for
registration it has acquired a distinctive character as a
result of the use made of it or is a well-known trade
mark.
(2) A mark shall not be registered as a trade mark if-
(a) it is of such nature as to deceive the public or cause
confusion;
(b) it contains or comprises of any matter likely to hurt
the religious susceptibilities of any class or section of the
citizens of India;
(c) it comprises or contains scandalous or obscene
matter;
(d) its use is prohibited under the Emblems and Names
(Prevention of Improper Use) Act, 1950 (12 of 1950).
(3) A mark shall not be registered as a trade mark if it
consists exclusively of-
(a) the shape of goods which results from the nature of
the goods themselves; or
(b) the shape of goods which is necessary to obtain a
technical result; or
(c) the shape which gives substantial value to the goods.
30. Limits on effect of registered trade mark.-(1) Nothing
in Section 29 shall be construed as preventing the use of
a registered trade mark by any person for the purposes of
identifying goods or services as those of the proprietor
provided the use-
(a) is in accordance with honest practices in industrial or
commercial matters, and
(b) is not such as to take unfair advantage of or be
detrimental to the distinctive character or repute of the
trade mark.
(2) A registered trade mark is not infringed where-
(a) the use in relation to goods or services indicates the
kind, quality, quantity, intended purpose, value,
geographical origin, the time of production of goods or of
rendering of services or other characteristics of goods or
services;
(b) a trade mark is registered subject to any conditions or
limitations, the use of the trade mark in any manner in
relation to goods to be sold or otherwise traded in, in any
place, or in relation to goods to be exported to any
market or in relation to services for use or available or
acceptance in any place or country outside India or in any
other circumstances, to which, having regard to those
conditions or limitations, the registration does not extend;
(c) the use by a person of a trade mark-
(i) in relation to goods connected in the course of trade
with the proprietor or a registered user of the trade mark
if, as to those goods or a bulk or which they form part,
the registered proprietor or the registered user
conforming to the permitted use has applied the trade
mark and has not subsequently removed or obliterated it,
or has at any time expressly or impliedly consented to the
use of the trade mark; or
(ii) in relation to services to which the proprietor of such
mark or of a registered user conforming to the permitted
use has applied the mark, where the purpose and effect of
the use of the mark is to indicate, in accordance with the
fact, that those services have been performed by the
proprietor or a registered user of the mark;
(d) the use of a trade mark by a person in relation to
goods adapted to form part of, or to be accessory to, other
goods or services in relation to which the trade mark has
been used without infringement of the right given by
registration under this Act or might for the time being be
so used, if the use of the trade mark is reasonably
necessary in order to indicate that the goods or services
are so adapted, and neither the purpose nor the effect of
the use of the trade mark is to indicate, otherwise than in
accordance with the fact, a connection in the course of
trade between any person and the goods or services, as
the case may be;
(e) the use of a registered trade mark, being one of two or
more trade marks registered under this Act which are
identical or nearly resemble each other, in exercise of the
right to the use of that trade mark given by registration
under this Act.
(3) Where the goods bearing a registered trade mark are
lawfully acquired by a person, the sale of the goods in the
market or otherwise dealing in those goods by that person
or by a person claiming under or through him is not
infringement of a trade by reason only of-
(a) the registered trade mark having been assigned by the
registered proprietor to some other person, after the
acquisition of those goods; or
(b) the goods having been put on the market under the
registered trade mark by the proprietor or with his
consent.
(4) Sub-section (3) shall not apply where there exists a
legitimate reason for the proprietor to oppose further
dealings in the goods in particular, where the condition of
the goods, has been changed or impaired after they have
been put on the market.
35. Saving for use of name, address or description of
goods or services.-Nothing in this Act shall entitle the
proprietor or a registered user of a registered trade mark
to interfere with any bona fide use by a person of his own
name or that of his place of business, or of the name, or
of the name of the place of business, of any of his
predecessors in business, or the use by any person of any
bona fide description of the character or quality of his
goods or services.
Thus, it is clear that the mark or indication which serves to
designate the quality of the goods of the appellant, which
indeed the phrase 'Sugar Free' does, would be an absolute
ground for refusal of registration of a mark unless it has
acquired a distinctive character. The expression can at best be
said distinctive qua the artificial sweetener of the appellant and
mere starting of the marketing of the drink 'sugar free D'lite'
cannot give the appellant the right to claim distinctiveness in
the expression 'Sugar Free' in relation to all the food products.
13. In the present case as noted above the Defendant is using the word
"AGIP" and its logo along with "4T PREMIUM" and not simplicitor "4T
PREMIUM". Further even the Plaintiff is using the word "VALVOLINE"
with "4T PREMIUM" and not "4T PREMIUM". In view of the aforesaid
discussion, I find no reason to grant interim injunction in favour of the
Plaintiff and against the Defendant.
Application is accordingly dismissed.
(MUKTA GUPTA)
JUDGE
NOVEMBER 25, 2013
'vn'
