All Well Formulations (AWF), the defendant, aggrieved by the injunction order passed against them by the Additional City Civil and Sessions Judge, Bengaluru City, has filed the appeal before the Karnataka High Court. The Plaintiff Swati & Co (Swati) filed the action against AWF for infringement of trademark, design, passing off, etc. The High Court dismissed the Appeal of AWF and confirmed the injunction granted by the district court.
Swati in support of its case contended:
- They are carrying on business of manufacturing, marketing and selling of glucose powder, arrowroot powder, bleach powder, castor oil, edible oil, olive oil, etc, since 2001.
- They adopted the mark TURKY PLUS PURE OLIVE OIL and have been selling the same in a packaging with unique artistic work, get up, colour combination, design of Tin container etc., since November 2002. The mark TURKY PLUS PURE OLIVE OIL is registered in Class 29 and they have also registered the Design of the tin.
- The mark has earned reputation and goodwill among the trade and public and the product is sold in Karnataka, Tamilnadu and Kerala.
- AWF is dealing with olive oil using a similar name TURKIZ PURE OLIVE OIL PLUS and copied the label, artistic work, as well as get up of their product.
AWF contentions were:
- Swati has not come to the Court with clean hands and suppressed real facts. Swati had filed a suit earlier and their application for temporary injunction was rejected and the instant suit for similar relief is not maintainable. AWF has been dealing with the mark TURKIZ PURE OLIVE OIL PLUS since 2005, whereas, Swati has used the mark only from 2011.
- The averment that Swati is the registered proprietor of the cylindrical tin having registration for the said design is not correct. The cylindrical tin design is an obsolete design and existing on public domain and lacks novelty.
- 'Pure Olive Oil' is a common generic word and does not qualify as a trade mark. A large number of people sell olive oil under the brand name 'Pure Olive Oil' and the trade mark 'Turky' is a geographical name and no one can claim monopoly in respect of the trade mark 'Pure Olive Oil'.
The High Court after hearing the parties held as follows:
- It is the specific case of Swati that they are using the trade mark TURKY PLUS PURE OLIVE OIL since November 2002, and AWF has adopted the trade mark TURKIZ PURE OLIVE OIL PLUS in the year 2005. In the trademark application filed by Swati they have claimed use from November, 2002. Moreover, in the objection filed by AWF they have claimed use of the mark TURKIZ PURE OLIVE OIL PLUS only from 2005 which is anyway subsequent to Swati's use.
- AWF has not shown any documents to support they are prior user of the mark TURKIZ and Tin design.
- The district court had also compared the rival marks, label, design, get up and found striking similarities which are deceptive in nature.
- The contention that Swati had earlier filed a suit and their injunction application was rejected does not hold much force. In this regard the district court has rightly observed that the earlier suit was based on unregistered trademark, whereas, the present suit is filed for infringement of registered trademark. The dismissal of the earlier injunction application does not disentitle Swati from claiming relief in the instant suit.
In view of the above the High Court held that it does not find any merit in interfering with the injunction order passed by the district court and accordingly dismissed the appeal filed by AWF.