Appellant-plaintiff claims to have been using the mark “MALABAR” for selling Biryani Rice since 2001. The appellant had contended that there was an infringement of trademark by passing off special Biryani Rice under the mark “MALABAR GOLD” which is identical with and/or deceptively similar to the appellant’s trade mark “MALABAR”.
The present case was adjudicated by a Division Bench of the Hon’ble Supreme Court Of India comprising of Justice Ranjan Gogoi and Justice R. Banumathi on 12th July 2018.
The appellant-plaintiff is granted registration in Class-30 for its products. Class-30 of the classification of goods and services under the statute covers diverse spices and other edible materials as wheat, rice, coffee, tea etc. The disclaimer for the word “MALABAR” explicitly restricts the use of the word “MALABAR”.
After temporary injunction was issued which restricted the use of mark “MALABAR” by respondents, it was argued from their side that the appellant is relying upon fabricated documents and that the appellant cannot claim exclusive right over the mark “MALABAR”. The respondents filed application indicating the proposed modification in their label by changing the get-up.
After hearing the parties, the interim order of injunction initially passed, was modified to the effect that the respondents shall be entitled to use the word “MALABAR” in conjunction with “BAROMA”. All the words and letters must be in the same font but the word “MALABAR” may be increased with font size of not more than 25% than the rest of the words or letters.
The Supreme Court held that the appellant cannot claim exclusive right over the use of the word “MALABAR”.
The Supreme Court observed in this regard:
“The label of the respondents containing the words “BAROMA”, “MALABAR”, “GOLD” are circled having a different get-up from that of the appellant. By comparison of the two label marks…There appears to be no similarity between both the labels, more so, deceptive similarity…We do not find any serious infirmity warranting interference with the impugned order.”