Supreme Court: R. Banumathi, J. while delivering the Judgment for herself and Ranjan Gogoi, J. dismissed an appeal filed against the Judgment of Calcutta High Court wherein the respondents were allowed to use the word MALABAR in conjunction with the word ‘BAROMA’ for selling basmati rice.
Appellant claimed to use the mark ‘MALABAR’ to sell biryani rice since 2001. Appellant filed a suit for infringement and passing off against the respondents who were using the mark ‘MALABAR GOLD’ which was being used to sell the same product, i.e., biryani rice. An interim injunction was granted against the respondents restraining them from using the said mark. In course of the proceedings, the respondents submitted the modified mark that they proposed to use, having the word BAROMA in conjunction with the word MALABAR, and with changed get up. Consequently, the interim injunction was vacated. Aggrieved, this appeal was filed by the appellant.
The Supreme Court found that the appellant had their label mark registered under Class 30 which had a disclaimer (limitation) that there was no exclusive right in the word ‘MALABAR’. Accordingly, the appellant could not claim to use the word MALABAR to the exclusion of everyone else. Other marks registered under the same class using the word MALABAR in conjunction with other words were brought to the notice of the Court. In Court’s view that High Court was right in holding that appellant did not have exclusive right over the word MALABAR. On comparison, the Court held that the marks of both the parties seem different. The proposed mark of the respondents was different in get up as well as the word BAROMA used in conjunction made it distinct. Holding that there was no deceptive similarity between the two marks, the Court found no infirmity with the impugned order. The appeal was dismissed. [Parakh Vanijya (P) Ltd. v. Baroma Agro Product, 2018 SCC OnLine SC 686, decided on 12-07-2018]