LOUA GILBERT Vs. U. T., CHANDIGARH
LAWS(P&H)-2021-1-3
HIGH COURT OF PUNJAB AND HARYANA
Decided on January 05,2021

Loua Gilbert Appellant
VERSUS
U. T., Chandigarh Respondents




JUDGEMENT

MEENAKSHI I.MEHTA,J. - (1.)Feeling aggrieved by the order dated 28.08.2020, as handed down by the Presiding Officer-cum-Additional District Judge, Commercial Court, Faridabad, whereby an application moved by the plaintiff-applicant (here-in-after referred to as 'the respondent') for seeking ad-interim injunction, has been allowed and during the pendency of the suit, the defendants-respondents (here-in-after referred to as 'the appellants') have been restrained from offering, advertising, manufacturing, selling their products under the name of 'Cremo' or promoting the respondent's goods and/or dealing in any manner under the trade mark 'Cremo' and/or 'Cremo Netureal Milk LLP' or any other trade mark or the name identical with or deceptively similar to the respondent's mark/name 'Cremo' as a trade mark, trade name, corporate name, domain name or in any other manner whatsoever, either in full or in part, as may amount to passing off of the goods and/or the services of the appellants as and for its (respondent's) goods and/or the services, while granting them (appellants) the liberty to sell their milk products by using any other name or trade mark which is not identical with or is not deceptively similar to the respondent's mark/name 'CREMO', the appellants have chosen to prefer the present appeal.
(2.)Shorn and short of unnecessary details, the facts culminating in the present appeal, are that the respondent filed a Civil Suit (Commercial) against the appellants (plaint thereof annexed in the paper-book as P-3) while averring that it (respondent) was a company duly organized and existing in accordance with the laws of Switzerland and has been in the business since 1927 and it innovates, creates, processes, manufactures and also markets consumer dairy products. It decided to use the word 'CREMO' as its trade/corporate name and accordingly, it came to be known as 'CREMO S.A'. It has applied for the registration of mark 'CREMO' in India under IRDI No.-4392669 on 11.11.2019 and the said application is pending. On 20.01.2020, it received a notification from the WIPO (World Intellectual Property Organization) intimating it therein that the registration of its mark 'CREMO', so applied for, had been objected to on the ground that the same or similar marks had already been applied for before the Trade Marks Registry for registration and it was called upon to make necessary submissions in this regard. Then, it came to know that appellant No.2 had also applied for the registration of the word mark 'CREMO' on 04.07.2019 and he had set up a Limited Liability Partnership firm under the name and style of 'CREMO NETUREAL MILK LLP', i.e appellant No.1. Being aggrieved by such dishonest adoption and illegal use of the identical goods mark by the appellants in respect of the goods identical to those as offered by it (respondent), it served a notice upon the appellants on 12.02.2020 asking them therein to desist from using mark/name 'CREMO' and also to withdraw their above-said application but however, vide their reply dated 27.02.2020, the appellants controverted/disputed its version. On the self-same facts, the respondent moved the above-said application which has been allowed vide the impugned order.
(3.)The appellants, in their written-statement as well as in written-reply to the afore-mentioned application, have asserted that on 05.03.2019, appellant No.1 was incorporated under the Limited Liability Partnership Act, 2008 and appellant No.2 has been running his business, as an individual entrepreneur, under the name and style of 'CREMO NETUREAL MILK LLP' at Faridabad. He has established the brand 'CREMO' in India and has invested time, money and skill to establish it as a reputed brand name and the same has also gained an envious goodwill. The Registrar of Companies never objected for the name of appellant No.1 and he (appellant No.2) has already moved an application to the Registrar of Trade Marks for the registration of trade mark 'CREMO' which is under process. The respondent has never pursued any manufacturing or business activities in India nor has ever advertised the same and the registration of its (respondent's) alleged mark has also been refused by several countries. The usage of the mark adopted by the appellants will not cause any commercial hardship to the respondent as it has no commercial existence in India.


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