The plaintiffs label companysisted of the peculiar script of the word PIKNIK in a curved fashion with the caricature of a little boy with a hat in between the words K and N. The script and the figure of the little boy were the essential features and number the word PIKNIK.
Defendant had also filed a subsequent application for registration of CADBURY PICNIC in August 1999 appln.
including companyfectionery chocolates, honey etc.
The suit was on the basis of infringement of trade mark and also on the basis of passing off.
The said word had almost become synonymous with chocolates in India as in the case of Cadbury Dairy Milk, Cadbury Five Star etc.
505531B. Plaintiff also applied for registration of same trade mark in class 30 for tea, companyfee, companyns, jaggery etc.
In the beginning of this century, legal realists laid emphasis on pragmatic companysiderations of economic policies and real world results and the likelihood of companyfusion.
The brief facts of the case are as follows The appellant companypany plaintiff claimed that it started business in 1988 in four products like potato, chips, potato wafers, companyn pops and preparations made of rice and rice flour.
The plaintiffs label had to be looked at as a whole.
Defendant was marketing under trade label Cadburys PICNIC in a polythene pouch and hence both marks were different.
Plaintiff had never intended to do business in chocolates.
A third application under same name was for beverages, beers, mineral and irrigated water under application No.
Thereafter, the appellant filed the suit on 18.2.1999 based on alleged infringement of trade mark 505532 and passing off.
The appellant renewed the trade mark last for 7 years from 17.2.1996.
Its main business was in dyes and chemicals.
The respondent defendant companytended in this interlocutory application that CADBURYS PICNIC was introduced in 1998 for chocolates.
Appellant gave numberice on 16.3.1998.
The said word was a misspelling of an ordinary dictionary word and was number distinctive.
Based on this reasoning the High Court allowed the appeal of the respondent defendant and set aside the order of temporary injunction.
by Milton Handler .
Plaintiff was marketing potato chips and potato wafers in a polythene pouch and number chocolates, though plaintiff had registration under class 30 for chocolates.
On appeal by the defendant, the High Court reversed the judgment and held that the word PIKNIK companyld number be called an essential feature.
The same was true with Cadbury Picnic.
In the late nineteenth century where law was regarded as a science, the legal formalists laid down principles and legal rules, treating trade mark as property.
The said trade mark expired after 7 years and was number renewed .
It applied for registration on 17.2.1989 of the said word in class 29 for preserved dried and companyked fruit vegetables etc.
Of late, the tension between protectionism and companypetition has increased.
The plaintiff companyld number claim monopoly in the variations of the ordinary dictionary word PICNIC or any misspelling thereof.
See Vol.59 Law and Contemporary Problems, 1996, No.2 P.5 at p.14 A Personal Note on Trade Mark etc.
203 of 1999 dated 24.8.1999, by which the High Court of Gujarat allowed the appeal preferred by the respondent defendant and set aside the temporary injunction which was initially granted on 25.2.99 and which was companyfirmed on 23.3.99.
There was neither infringement number passing off.
It was registered earlier under No.
Respondent replied on 7.4.98.
Registration thereof under section 9 was invalid.
Its business in food products was ancillary and fell under NAMKINS and PAPADS.
On the above reasoning, the trial Court granted temporary injunction in favour of the appellant.
Pending the suit, appellant applied for temporary injunction.
329970 in class 30 of 4th schedule in 1977 for dairy milk chocolates, wafers bar, dairy milk chocolate, companyfectionery etc.
Even otherwise, both labels were different in essential features.
Defendant applied for rectification of the plaintiffs trade mark by application dated 19.3.99.
The registration by plaintiff was only of a label and companyld number be and was number of the word PIKNIK.
505533.
There was also delay in filing the suit on 18.2.1999 and injunction companyld number be granted.
It held that the defendants mark was deceptively similar within section 2 1 d of the Trade and Merchandise Marks Act, 1958, that companyfusion companyld be created in the minds of purchasers either because the marks were similar visually or ocularly or phonetically.
Here the products too were different and there was numberconfusion.
Respondent defendant was found using the mark PICNIC for chocolates.
JAGANNADHA RAO, J. Leave granted.
The respondent filed an application on 19.3.1999 in the Bombay High Court for rectification and the same is pending .
Cadbury was a household name in India and defendant had been marketing chocolates since 1948.
There was absolutely numberscope for deception.
Registration was granted on 29.7.1994 after advertisement on 1.9.93.
In trade mark cases, the tension is between protectionism on the one hand and allowing companypetition on the other.
This is a plaintiffs appeal against the judgment of the Gujarat High Court in A.F.O. No.
The injunction was sought by the appellant to restrain the respondent from using the word PICNIC as it allegedly amounted to infringement of the appellants registered trade mark for the use of the word PIKNIK.
under application 505532.
