Fevicol v. Tickawoo: Bombay High Court Finds No Prima Facie “Deceptive Similarity” In Logos, Grants Interim Relief For Certain Products
The Bombay High Court recently held that there is no prima facie deceptive similarity between Fevicol manufacturer Pidilite Industries’ logo having two elephants against the backdrop of a sunset and Chiripal Industries’ logo having to contain word Tikawoo with the device of a rhino against the backdrop of the sun.
“ Merely because Sun is shown in the background of the image of a Rhino in the impugned mark of the defendant (Chiripal), it cannot be said that there is either deceptive similarity or a case of slavish copying of the registered trademark of the plaintiff (Pidilite) or artistic work in the trademark of the plaintiff, which consists of two elephants pulling in the opposite direction with Sunset in the background”, Justice Manish Pitale held while refusing to restrain the defendant from using the logo.
The court, however, granted an interim injunction in favour of Pidilite restraining Chiripal from using marks similar or identical to the plaintiff’s “HEATX”, “LW+”, and “LW” marks.
The plaintiff Pidilite Industries claimed infringement and passing off with respect to its registered trademarks HEATX, LW+, LW, and DR. FIXIT with an image of a man wearing a yellow construction helmet and copyright over a logo having two elephants in the backdrop of sunset pulling in the opposite direction.
The plaintiff claimed that the defendant infringed its trademark and copyrights with its trademarks HEAT-TIK, LWP+, and MR. ENGINEER with an image of a man wearing a construction helmet and the logo having a rhino in the backdrop of a sun. It claimed that the defendant is using the mark HEAT-TIK for the identical product of heat-resistant adhesive.
The court reiterated that while comparing rival marks, the overall impression must be appreciated rather than going into each feature of the marks to ascertain similarity or difference.
The court said that there is no prima facie case showing deceptive similarity between the words Dr Fixit and Mr Engineer. It compared the image of the man wearing a yellow construction helmet in the plaintiff’s registered mark with the image of a man wearing a construction helmet in the defendant’s registered mark and held that there is no prima facie case of deceptive similarity or copying on part of the defendant.
“On an overall comparison between the two marks, it cannot be said that merely because the defendant has also used the image of a man with a construction helmet, it would lead to a conclusion in the mind of the consumer that the registration obtained by the defendant in respect of its mark can be said to be prima facie fraudulent or unsustainable”, the court held.
The court held that there is prima facie deceptive similarity in terms of the plaintiff’s marks LW and LW+ against the defendant’s mark LWP+. It rejected the defendant’s contention that Pidilite cannot claim monopoly over LW and LW+ as they are short for liquid waterproofing which is a descriptive term. The defendant failed to show prima facie unsustainability of the registration of the plaintiff’s trademarks LW and LW+, the court held.
“The defendant is not justified in claiming that LW is a short form of descriptive nature of the product i.e. liquid waterproofing or that it is common to trade. For accepting the contention pertaining to common to trade, the defendant would have to pass the stringent test of demonstrating extensive use of the said mark. At this stage, the defendant has failed to convince this Court in that regard”, the court held.
The court held that the prima facie plaintiff’s registered trademark HEATX and the defendant’s mark HEAT-TIK can give rise to confusion. The court accepted the plaintiff’s contention that if the two words are spoken in a hurried manner, there can be confusion as persons from different backgrounds and coming from various parts of the country can pronounce English words in a manner that can give rise to confusion.
Further, the overall colour scheme of the defendant’s product with the use of the impugned mark HEAT-TIK is likely to create confusion in the minds of the consumer when compared with the plaintiff’s HEATX presented in a specific colour scheme, the court held.
Case no. – Commercial IP Suit No. 452 of 2021, Case Title – Pidilite Industries Limited v. Chiripal Industries Limited.
Source: LiveLaw
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