Trademark – Appellant sold special Biryani Rice under the mark “MALABAR”– Suit filed by appellant against respondents for infringement and passing off special Biryani Rice under the mark ‘MALABAR GOLD’ or other mark deceptively similar to ‘MALABAR’ – High Court held that the respondents were entitled to use the word ‘MALABAR’ in conjunction with ‘BAROMA’ with modifications, for selling its Biryani Rice – On appeal, held: Though, appellant is the registered owner of the label mark in Class-30, however, in the said registration u/Class-30, there is a disclaimer to the exclusive use of the word ‘MALABAR’ in terms whereof the appellant has no right over the exclusive use of the word ‘MALABAR’ – High Court rightly held that the appellant cannot claim exclusive right over the use of the word ‘MALABAR’ – Further, on comparing the label mark of the appellant selling Biryani Rice with word ‘MALABAR’ and the modified label mark of the respondents, there is no similarity between the two label marks – Impugned order not interfered with.
Dismissing the appeal, the Court
HELD: 1.1 The appellant is the registered owner of the label mark in Class-30 in respect of rice, flour and preparations made from cereals, bread, cakes, biscuits, pastry and spices. 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. In the registration under Class-30, there is a disclaimer for the word ‘MALABAR’. The appellant though claims exclusive right over the word ‘MALABAR’ since there is a disclaimer to the exclusive use of the word ‘MALABAR’, the appellant has no right over the exclusive use of the word ‘MALABAR’. The respondents have also inter alia brought on record the materials to show the registration of other goods under Class-30 with the word ‘MALABAR MONSOON’ granted in favour of Amalgamated Bean Coffee Trading Company Limited for Coffee Cream, Coffee included in Class-30. The registration of the mark ‘MALABAR MONSOON’ under Class-30 also contains similar disclaimer of the word ‘MALABAR’. Likewise, the label ‘MALABAR COAST’ has been registered in Class-30 for Coffee, Tea, Cocoa, Sugar etc. in favour of Tropical Retreats Private Limited which again contains a similar disclaimer for the exclusive use of the word ‘MALABAR COAST’. Having regard to the materials placed on record, the High Court rightly held that the appellant cannot claim exclusive right over the use of the word ‘MALABAR’. [Paras 6, 7][970-C-D, F-H; 971-A]
1.2 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, both appear to be substantially different. There appears to be no similarity between both the labels, more so, deceptive similarity. Keeping in view the interest of the respective parties who are having substantial turn-over in their respective business, the High Court rightly held that the respondents would be entitled to use the word ‘MALABAR’ in conjunction with ‘BAROMA’ with the different get-up as approved by the High Court. There is no serious infirmity warranting interference with the impugned order. [Para 8][971-B-D]
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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