The Supreme Court has held that proprietor of trademark cannot enjoy monopoly over entire class of goods particularly when he is not using said trademark in respect of certain goods falling under same class.
The Apex Court in this regard set aside the High Court and IPAB orders, thus restoring Registrar’s order allowing registration in favour of appellant, subject to condition that no registration is to be given for products for which they had abandoned their claim. It was held that provisions of Section 11 of the Trademarks Act do not cover the same class of goods.
In a case of concurrent user of trade mark, it was also observed that there was hardly any similarity of the appellant’s mark with that of the respondent when these marks were seen in totality. The Court was of the view that the way goods were traded, it was difficult to imagine that an average man of ordinary intelligence would associate the goods of the appellant as that of the respondent.
The dispute involved registration of mark ‘Nandhini’ and the respondent (Karnataka Cooperative Milk Producers) was of the view that the mark was phonetically similar to the respondent’s mark ‘Nandini’ and is similar trade mark in respect of similar goods thus causing deception and confusion in the minds of the users.
Appellant (Nandhini Deluxe) was operating a restaurant while respondent was selling milk and its products. The goods of the respondent are classifiable under Class 29 and Class 30 as per classification under Schedule IV to the Trade Marks Rules, 2002, while various kinds of foodstuffs sold by the appellant in its restaurants also fall under Class 29 and 30 as well as other Classes.