Trademark

Delhi High Court bars the use of ‘Krishna’ as a trademark to market dairy products


We have another guest post from Tania Sarcar, this time in relation to a judgment of the Delhi High Court on the use of ‘Krishna’ as a trademark to market dairy products. We had earlier carried a post on the judgment of the Single Judge in the same case.


Delhi High Court bars the use of ‘Krishna’ to market dairy products
by Tania Sarcar


This post presents a brief note of a recent judgment by the Delhi High Court in the case of Bhole Baba Milk Food Industries Ltd. v. Parul Food Specialities (P) Ltd.


The facts of the case:

The appellants, Bhole Baba Milk Food Industries Ltd., who are manufacturers of milk and milk products since 1992 are also registered owners of the label mark “KRISHNA” which has the pictorial depiction of Lord Krishna standing on a lotus flower which falls in Class-29 of the Trade Mark Act.

The respondent, Parul Food Specialties (P) Ltd., who are also manufacturers of milk products started selling ghee under the brand “PARUL’S LORD KRISHNA”, “Parul’s” and “Lord” having a font so small that only the word “KRISHNA” catches the eye due to its prominence.

The appellants attempted to restrain the respondent from using the word ‘Krishna’ to market their products on the grounds that the word ‘Krishna’ had now acquired a secondary distinctiveness with respect to the appellant’s products, as was evidenced through its sales figures etc.

Single Judge Bench Judgment

At the first stage of the litigation Justice Rajiv Shakhdar, of the Delhi High Court had ruled in favor of the defendants and was of the view that prima facie, in order for a mark to acquire secondary distinctiveness, the consumer should immediately be reminded of the product of the owner of the mark while looking at it. He also held that the name KRISHNA is associated in Hindu Mythology with Lord Krishna and is a household name and it cannot achieve secondary distinctiveness. He also held that it was common knowledge that Lord Krishna as a child was fond of butter and other milk products and used to steal the same. Therefore, in Justice Shakhdar’s opinion, Lord Krishna and milk products go hand in hand as a result of which the Appellants were not entitled to claim monopoly over the name of the deity.

Division Bench

Unhappy with the decision of the Single Judge, the Plaintiffs/Appellants appealed to a Division Bench, consisting of Justice Pradeep Nandrajog and Justice Sunil Gaur.

Agreeing with the views of the Single Judge, the Division Bench reiterated that the name of a deity cannot be monopolized since it was in the public domain and if done so, it would “certainly dilute a proprietary claim projected by any person, in relation to Krishna with dairy products”. They also agreed with the decision of the lower court, directing the respondent to print the words “PARUL’S LORD” with the same prominence as the word “KRISHNA” so that it would not be confused with the products of the appellants.

The Division Bench also came to the conclusion that registration obtained by the appellant is not per se for the word KRISHNA but it is for the word KRISHNA written in a distinctive form. In pertinent part, the Division Bench stated that the “distinctiveness to which the appellant can lay a claim is to what it has got registered as a whole, and therefore such registration cannot possibly give an exclusive statutory right to the appellant qua a particular word of common origin.”

These views of the Division Bench are however tentative and are subject to the outcome of evidence led during trial.

Prashant Reddy

Prashant Reddy

T. Prashant Reddy graduated from the National Law School of India University, Bangalore, with a B.A.LLB (Hons.) degree in 2008. He later graduated with a LLM degree (Law, Science & Technology) from the Stanford Law School in 2013. Prashant has worked with law firms in Delhi and in academia in India and Singapore. He is also co-author of the book Create, Copy, Disrupt: India's Intellectual Property Dilemmas (OUP).

2 comments.

  1. AvatarAnonymous

    You have stated that the appellant/plaintiff in the case is registered owners of the label mark “KRISHNA” which has the pictorial depiction of Lord Krishna standing on a lotus flower which falls in Class-29 of the Trade Mark Act. In fact the similar mistake was done in the original blog of May, 14, 2011 under your blog Determination of prima facie validity of registered mark.

    Please note that the suit was on he basis of registered trade mark Nos. 599070 & 783679 which pertain to the label consisting basically of the word KRISHNA, while the registration of the trade mark under No: 597519 pertains to the mark which has the pictorial depiction of Lord Krishna standing on a lotus flower, but the mark has not been renewed, hence the suit is not based on this registration. In fact if you scroll the earlier blog, anonymous at 11.39 has stated so.

    Reply
  2. AvatarNeha Sharma

    When the entire govt. of the country is ‘adulterated’ with people who should not be in politics, why should we be surprised at just the milk being adulterated. Gradually all will be adulterated and there will be nothing pure available, at any cost!

    Reply

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