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CRITICAL ANALYSIS OF TRADEMARK LAW IN INDIA: SPECIAL EMPHASIS ON THE LANDMARK CASE OF AMUL & ANUL


Purpose of Trademark Law

The trademark in relation to goods and services distinguishes the source and originality of the goods and transmits to the general public the quality of the product. In the case of Cadbury India Limited v. Neeraj Food Products [1], the Court noted that the spirit, intention, and purpose of the trademark law is to protect the merchant and the consumer against the dishonest adoption of the trademark by another with the intention of taking advantage of the attached product’s reputation and goodwill.
In the case of Ramdev Food Products Pvt. Ltd v. Arvindbhai Rambhai Patel [2], the Supreme Court held that the purpose of the trademark is to establish a connection between the products and the source that suggested the quality of the products.
The main purpose of the Trademark Law was established in the case of Cluett Peabody & co. Inc v. Arrow Apparels [3], where it was observed by Bombay High Court that trademark law is to protect the property right of a registered trademark holder.

Trademark Infringement w.r.t. Amul v. Anul
After two decades of legal battle, the decision has come up in favor of Amul and it has been ruled by the court that the private dairy company ‘Shri Shakti Dairy’ should be restrained from selling the packed milk under the trade name of ‘Anul Taaza’ and ‘Anul Shakti’. Entity ‘Kuldeep Enterprises’ is marketing these products. The Reporting Infringement i.e. the Kaira district cooperative Milk producers Union limited popularly known as ‘Amul Dairy’ and the ‘Gujarat Cooperative Milk Marketing Federation Ltd (GCMMF), which markets brand Amul and is the marketing body of all district dairy unions of Gujarat, had observed that Naroda-based Shri Shakti dairy was producing milk pouches under the brand names that were rhyming and phonetically similar with its own brand ‘Amul Shakti’ and ‘Amul Taaza’ by the name ‘Anul Shakti’ and ‘Anul Taaza’ and the firm by the name ‘Kuldeep Enterprises’ was marketing the milk pouches.
1. Infringement of Registered Trademark-
Trademark infringement is said to occur when there is unauthorized use of the trademark attached element. It occurs when a trademark is used which is confusingly similar or identical to a mark owned by another party. In case of trademark infringement, a legal proceeding may be commenced by the holder against the party that infringed upon the trademark. In the present case of ‘Amul v. Anul’, trademark infringement contains the issues of:
(i) Deceptive Mark/Similarity: ‘Deceptive Similarity’ is one of the crucial trouble that is sought to be resolved by the Trademarks Act, 1999. According to Section 2(h) [4]  of the Act, a mark shall be believed to be deceptively similar to another mark if it resembles it so nearly that the other mark is likely to be deceived or if confusion can be caused between the two. As per Section 2(m) [5] of the Act, a mark includes a device, brand, heading, label, ticket, name signature, word, letter, numerical, the shape of goods, packaging or, a combination of colors or any combination thereof.
The essentials of Deceptive Similarity can be well understood with the case of Parle Products (P) Ltd. v. J.P. & Co. Mysore, [6] where, it was held that “the test for determination of a trademark to be deceptively similar to the registered one would be, if a person would be likely to accept another one, if offered, instead of original one”. 
Factors considered for deceptive similarity are as follows:
(a) The nature of the marks i.e. whether coined/ descriptive/ non-descriptive/ surname/ geographical origin/ device/ letters/ numerals/ combination of two or more of the above.
(b) The degree of comparability between the competing marks and essential features of it i.e. phonetic, structural, or visual.
(c) The nature of the goods in which they are likely to be used or in respect of which they are used as trademarks.
(d) The likeness of the nature, character, and purpose of the goods of the competing traders.
(e) The class of purchasers who are likely to buy the goods posing the marks.
(f) The mode of purchase of the goods or of placing orders for the goods. ‘Anul’ had launched a similar product by using packaging which was deceptively similar to the packaging for ‘Amul’.
(ii) Phonetic Similarity: Trademarks are considered to be unique and distinguishable signifiers. A Trademark name is considered good when it has distinctive speech sounds in a context that ensures unambiguous identification of the name. Objective Criteria for determining phonological similarity and confusability was first developed and applied in a controversy over two radio station call letters. The issue of trademark infringement due to phonetic similarity is expressed in Section 29(9) of the Trademark Act 1999, the basis for which is ‘deceptive similarity’. Section 29(2) [7]  read with section 29(9) tenders the conclusion that the pronunciation of the mark is clearly relevant in determining infringement. In Amritdhara Pharmacy v. Satyadeo Gupta [8], the registration was denied on the ground that the trade name “Lakshmandhara” was likely to deceive and cause confusion and therefore the registration by Sec 8 [9] of the Trades Mark Act and it was held that there was sufficient similarity between “Amritdhara” and “Lakshmandhara” so as to cause confusion. And as the dairy Anul was selling its products under a similar brand name as that of Amul which could be easily confused. Hence, there was a trademark infringement on part of the defendants i.e. Anul.

2. Other Judgments on Trademark Infringement
In the Cadila Healthcare [10] case, it has been argued that in the case of a passing-off action, the court must take into account the similarities rather than the differences and the principle of phonetic “similarity” cannot be ignored and the proof is as to whether a particular trademark has gained market acceptability to confuse a buyer about the nature of the product he was buying. In the case of unregistered trademarks, an approval action can be maintained and the approval action depends on the principle that nobody has the right to represent their products as someone else’s products. As argued in the case of Erven Warnik BV v. J. Townend & Sons [11], the modern tort of passing-off has five elements, that is:
i. A misrepresentation,
ii. Made by a merchant in a trade course,
iii. To the potential customers of its final consumers of goods or services provided by it,
iv. Which is calculated to damage the business or goodwill of another merchant,
v. What causes real damage to a business or goodwill of the merchant for whom the action is initiated or probably will. and the plaintiff must demonstrate that the product he represents has earned a reputation in the market and that the other party seeks to have this reputation violated.
In the Corn Products [12] case, it was observed that the principle of similarity could not be applied very rigidly and that, if it could be demonstrated at first sight, that the defendant had a dishonest intention to deliver goods. Then, in the case of Heinz Italia & Anr. v. Dabur India Ltd & Ors. [13]  , the fact that glucose D is similar to the main component of the product cannot be granted a distinctive status, but in Amul v. Anul there is a phonetic similarity. In the case of Lakme Ltd. v. Subhash Trading and others [14], the court restricted the defendants from using the trademark “LAKME” or “LIKE ME” or the word “designer” or any other brand that may be identically or deceptively similar to the plaintiff’s trademark “LAKME”.
Therefore, after analyzing the evidence, a court order has been granted against the sale, marketing, marketing, manufacturing, processing, packaging of such products with the same name/label, which infringes the trademark of Amul. And, given that the main premise of trademark protection is that no man has the right to sell another’s trademark under the pretext that it belongs to him, which subsequently prevents ‘Anul’ from selling milk in bags under the names “Anul Taaza” and “Anul Shakti”.

References
[1]  Cadbury India Limited v. Neeraj Food Products, (2007) 25 P.T.C. 95 (Del.).
[2]  Ramdev Food Products Pvt. Ltd v. Arvindbhai Rambhai Patel, (2006) 33 P.T.C. 281 (S.C.)
[3]  Cluett Peabody & co. Inc v. Arrow Apparels, (1998) 18 P.T.C. 156 (Bom).
[4]  Section 2 (h), The Trade Marks Act, 1999.
[5]  Section 2 (m), The Trade Marks Act, 1999.
[6]  Parle Products (P) Ltd. v. J.P. & Co. Mysore, (1972) 1 S.C.C. 618.
[7]  Section 29(2), The Trade Marks Act, 1999.
[8]  1963 A.I.R. 449.
[9]  Section 8, The Trade Marks Act, 1999.
[10]  (2001) 5 S.C.C. 73.
[11]  1979 A.C. 731.
[12]  A.I.R. 1960 S.C. 142.
[13]  (2007) 6 S.C.C. 1.
[14]  1996 (64) D.L.T. 251.

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