Dhola Maaru v. Dhola Tharu

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Pfizer Products Inc. v. Rajesh Chopra, 2006 SCC OnLine Del observed, threat of selling offending goods in Delhi would itself confer jurisdiction to Courts in Delhi to entertain a suit claiming injunction. Exphar SA v. Eupharma Laboratories Ltd., (2004) 3 SCC 688 held, where an issue of territorial jurisdiction is raised, plaints need to be seen on a plain demurrer and allegations or averments are to be taken as correct.

There is imminent and credible apprehension, Defendant is likely to sell, distribute, market and deal in impugned products in Delhi and/or expand his activities to Delhi. In my view, a substantial and integral part of cause of action has arisen within territorial jurisdiction of this Court.  

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Plaintiff seeks permanent injunction restraining Defendant from directly or indirectly using ‘DHOLA THARU’/ ‘ढोला थारू’ and/or any other mark identical with or deceptively similar to Plaintiff’s trademark ‘DHOLA MAARU’/ ‘ढोला मारु’. Admittedly, both Plaintiff and Defendant are using their respective marks in respect of country liquor. Therefore, goods are identical.

Plaintiff has acquired statutory rights by way of registration of the label trademark on 25.07.2005 in Class 33. But, applications for registration of the word marks ‘DHOLA MAARU’ and ‘ढोला मारु’ are pending. There cannot be a speck of doubt, being a registered proprietor of the label mark, Plaintiff has an exclusive right to use it and to protect the mark from infringement by an unauthorized and illegal user.  

It cannot be said, Defendant was unaware of Plaintiff’s business. ‘ढोला थारू’ is visually, phonetically and structurally deceptively similar to ‘ढोला मारु’ and no further enquiry is necessitated to assess similarity, at this stage. There is every likelihood of confusion for purchasers with average intelligence and imperfect recollection.

In present case, no intention of non-use or abandonment is prima facie reflected; even non-use cannot serve as a defence against infringement.

Dhola

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It needs no reiteration, when a common word is applied in a context where it has no co-relation to the product in question, it is termed as an ‘arbitrary’ mark. For instance, ‘APPLE’ for a computer. By no stretch of imagination can it be said, DHOLA MAARU’ has a connection or co-relation with country liquor. Therefore, it is entitled to ‘high degree of protection’.

Defendant is restrained, during pendency of suit.  

Hon’ble Justice Jyoti Singh, Vintage Distillers Limited v. Ramesh Chand Parekh, [CS(COMM) 292/2022] decided on 16.11.2022.

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