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Tuesday, 27 December 2011

Delhi HC Says No Exclusive Right to Use of ‘Krishna’ as a Trademark to Market Dairy Products

In a recent case decided by the division bench of the Delhi High Court upholding the decision of a single judge it was held that:

“Just as the word 'LOW ABSORB', an expression relating to the character of the product, i.e. edible oil was held not entitling the person to an exclusive use who first used the said words, in the decision reported as MANU/DE/3131/2010 : 174 (2010) DLT 279 Marico Ltd. vs. Agro Tech Ltd., the adoption of the name of a deity who is associated with a particular trait relating to goods, in the instant case Lord Krishna having a trait which has an association with milk and butter, would stand on the same low footing for protection as would be purely descriptive expressions pertaining to the subject product. ”

The Appellants, Bhole Baba Milk Food Industries Ltd. are manufacturers of milk and milk products and also registered owners of the label mark “KRISHNA” which falls in Class-29 of the Trade Mark Act. The Respondent, Parul Food Specialties (P) Ltd. are also manufacturers of milk products who started selling ghee under the brand “PARUL’S LORD KRISHNA”, “Parul’s” and “Lord” having a font so small that only the word “KRISHNA” catches the eye due to its prominence. In the suit brought on by Bhole Baba Milk Food Industries Ltd., the Single Judge, Justice Rajiv Shakhdar, ruled in favour of the Defendants- Parul Food Specialties (P) Ltd and stated that prima facie in order for a mark to achieve secondary distinctiveness, the consumer should immediately be reminded of the product of the owner of the mark by looking at it. He also held that “Krishna” being a household name could not achieve secondary distinctiveness and as a result the Bhole Baba Milk Food were not entitled to claim monopoly over the name of the deity.

Aggrieved by the decision of the Single Judge, Bhole Baba Milk Food appealed before a Division Bench of the same Court.

The Hon’ble Division Bench upheld the decision of the Hon’ble Single Judge and reiterated that the name of the deity cannot be monopolized as it was in the public domain and if done so, it would ‘certainly dilute a proprietary claim projected by any person, in relation to Krishna with dairy products.” They also ordered Parul Food Specialties (P) Ltd. to print the words “PARUL’S LORD” with the same prominence as the word ‘KRISHNA’. They also concluded that registration by Bhole Baba Milk Food was not per se for the word KRISHNA but it is for the word KRISHNA written in a distinctive form. It stated that registration cannot possibly give an exclusive statutory right to the appellant qua a particular word of common origin.

The aforementioned decision begs the question- would this decision apply to other registrations having the names of Deities such as “MARUTI” who is the god of wind? Would Maruti Suzuki India Limited not be allowed to enforce their trade mark since the product that they apply it to, happens to be related to transportation? Let’s take the case of the Trade mark NIKE. Nike is the Greek goddess of strength, speed, and victory- in this case would they not be able to enforce their trade mark because they apply it to products related to sport? Would it be considered as descriptive?

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