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Using The Colour Combination Of A Well Known Brand With A Mollified Intent Will Amount To Trade Mark: High Court of Madras

Title: ITC Limited Virginia House v Britannia Industries Ltd.

Citation: O.S.A.(CAD).Nos.134 to 138 of 2023

Coram: The Hon’ble Mr.Sanjay V.Gangapurwala, Chief Justice And The Hon’ble Mr.Justice D.Bharatha Chakravarthy

Decided On: 08.11.2023

Introduction:

In the above applications, the respondent herein has prayed for interim injunction restraining the appellant herein from (i) indulging in unfair competition; (ii) infringement of their registered trademarks, (iii) passing off their goods as that of the plaintiff; (iv) infringement of copyright in the original artistic work in the wrapper; and (v) from diluting the goodwill and reputation of the plaintiff’s trade dress and colour scheme. In this judgment the parties are referred to as per their array in the suit.

Facts:

The plaintiff, Britannia Industries Limited, filed the above suit pleading that it was established in the year 1892, from which date, it has been manufacturing biscuits in India. It’s name itself has gained high reputation and goodwill and it has several products in the market which are very well known among the consuming public. While so, it has also adopted the mark ‘GOOD DAY‘ in the year 1986 and by virtue of continuous extensive use, advertisement and maintenance of high quality, GOOD DAY biscuits is a well known trademark throughout the country. Under the said umbrella mark, they are making and selling Butter Cookies, Cashew Cookies, Nut Cookies, Pista Badam Cookies, Choco Chunkies etc.

As far as the Butter Cookies are concerned, the petitioner uses the trade dress / wrapper in blue colour with the brand name ‘GOOD DAY‘ and the other devices contained therein. The plaintiff’s mark has been registered in different combinations vide Application Nos.4182344, 5186937, 5186938, 5186939, 5186940 in respect of Clause – 30. The plaintiff’s mark, along with colour scheme, getup and style, has been recognised as well known mark by the Intellectual Appellate Board and also by the Delhi High Court in the connected litigations.

The defendant is selling their similar products under their brand name ‘SUNFEAST‘ by adopting the trademark Mom’s Magic. Whileso, with a dishonest intention to cash in on the goodwill and reputation of the plaintiff and to pass off its products as that of the plaintiff, suddenly, in the month of March, 2023, started selling their products also in an identical blue colour trade dress / wrapper. If the products are placed side by side, it would be difficult to differentiate even with a careful observation. It is the case of the defendant that it is one of the India’s leading private sector Companies having formidable presence in diversified fields. Its branded packaged food business is one of the fastest growing food businesses in India and it has several leading brands including that of ‘SUNFEAST ‘.

It has adopted the visual elements and packaging in tune with its consumer preferences over a period of time and such modifications were made lastly in the year 2020. The defendant, with the same visual elements, has been selling the product in red based wrapper from the year 2020. Without altering the lay out or getup and packaging and not modifying the trade dress in any manner whatsoever, the defendant merely and simply changed the packaging colour of Sunfeast Mom’s Magic Butter Cookies to blue in line with the packaging colours of its Butter Cookies.

Judge’s Analysis and Judgment:

The learned Single Judge considered the case of the parties and found that the plaintiff has been using the trade dress with elements and colour combination since 1997 for its Butter Cookies and has built a considerable consumer base. Though the arguments relating to monopoly over a colour are raised by the defendant at the first blush appears to be correct, since the product has been sold in the said colour combination for over two decades, the same has to become associated with that of the plaintiff’s product and therefore, the plaintiff is entitled to protect its trademark. The defendant started selling Butter Cookies in the year 2014, but it has been selling only in red wrapper.

There is no explanation as to why they suddenly adopted the blue colour and the adoption appears to be dishonest with an intention to infringe trade mark of the plaintiff and pass off their goods. The defendant even now continues to pack its product in red wrapper in North India, but, the blue colour has now been introduced only in South India. The argument that the blue colour is common for the trade is not proved by them and the plaintiff has demonstrated that the other popular brands are selling in different shades.

The judge decided that the previous judgement on stopping the Mom’s Magic from packaging blue was right, and in the present appeal the appellant was directed to follow the same, But they were allowed to sell the existing stock of their products packed.

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Wife Can’t Claim Maintenance From In Laws When She Is Capable Of Maintaining Herself: High Court Of Chhattisgarh

Title: Dhanna Sahu v Smt. Sitabai Sahu

Citation: 2023:CGHC:28158-DB

Coram: Justice Shri Goutam Bhaduri & Justice Shri Deepak Kumar Tiwari

Decided On: 08/11/2023

Introduction:

The present Appeal is against the judgment dated 8.2.2023 passed by the Judge, Family Court, Bemetara in Civil MJC No.5/2022 wherein the application filed by the daughter-in-law against her father-in-law claiming maintenance was allowed and an amount of Rs.1500/- was directed to be paid. The father-in-law is in Appeal before this Court.

Facts:

Sitabai Sahu is the daughter-in- law of the appellant. She was married to Virendra Sahu, son of the appellant and 2 children were born. Said Virendra Sahu died in harness on 28.8.2021. Thereafter dispute arose in between the parties and the children were kept in the custody of the father-in-law i.e. the appellant. It was stated that the appellant has affluent means. He has 6 acres of land. Apart from that, he was in the avocation of doctorship, whereas the daughter-in-law was unable to maintain herself. Stating various grounds, maintenance was claimed.

The father-in-law opposed the application for maintenance and stated that his daughter-in-law has sufficient means to survive. However, no document has been placed before the Court to show that she is unable to maintain herself from the estate of her husband or father or mother. The learned family Court after evaluating the material placed before it has directed to pay an amount of Rs.1500/- as maintenance to the daughter- in-law.

Daughter-in-law has filed the application prior to this litigation for custody of the children wherein she has deposed that she has enough earning and would be able to maintain her children, apart from the property. Bare reading of the statement would show that the order itself is bad and no justification can be attached to it.

Learned counsel for the respondent opposes the said argument on submission that the statement made in the prior proceeding cannot be agitated time and again in the subsequent proceeding and position of the parties is to be evaluated in the subsequent adjudication and as such, the findings arrived at by the family Court are well merited, which do not call for any interference.

Court’s Analysis and Judgement:

In her statement, she has stated that she wants to keep the children with her, as she is doing the private job and she has sufficient income and her parental part i.e. father and mother have also sufficient means. This statement when was confronted in the cross-examination of the respondent, she admitted to have made such statement in a proceeding under Section 25 of the Act, while the proceeding was drawn before the family Court for custody of the children. She has stated that she was working in a private company and was earning enough and mother and father were also financially well.

Therefore, the statement itself made by the respondent cut across the requirement which is mandatory under Section 19 of the Act of 1956. There is no answer to the aforesaid issue as to under what circumstances, the statement was made in a judicial proceeding in earlier round of litigation and the statement having been confronted and admitted by the appellant would hold the field to adjudicate the issue. Hence the order dated 8.2.2023 was set aside by the court.

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Merely Because Some Of The Witnesses Are Interested Or Inimical Witnesses, Their Evidence Cannot Be Totally Discarded: Supreme Court Of India

Title:  Madan v State of Uttar Pradesh

Citation: Criminal Appeal No. 1790 Of 2017

Coram: Justice B.R. Gavai

 Decided On: November 09, 2023.

Introduction:

These appeals challenge the judgment and order dated 22nd February 2017, passed by the Division Bench of the High Court of Judicature at Allahabad in Capital Case Nos. 3359 and 3520 of 2015 with Reference No. 9 of 2015 and Criminal Appeal No. 3519 of 2015, thereby dismissing the appeals filed by appellant Madan and another accused Ishwar; whereas, it allowed in part, the appeal filed by appellant Sudesh Pal. By the said judgment, the High Court confirmed the judgment and order of conviction and sentence dated 31st July 2015 passed by the trial court in Sessions Case No. 09/2005 with Sessions Case No. 838 of 2005 and 10/2005, in respect of appellant – Madan, while commuting the sentence of capital punishment to life imprisonment in respect of appellant – Sudesh Pal.

Facts:

The incident took place at 5.30 PM and the FIR came to be registered on the same day at 7.40 PM. According to the FIR, Smt. Vimla Devi, who was the mother of Ram Kishan, cousin of Lokendra (PW-1), was a candidate in the election for Gram Pradhan; whereas the wife of one Arshad was the opposing candidate. On the one hand, Lokendra (PW-1) supported the candidature of Vimla Devi; whereas, the family of appellant Madan and Ram Bhajan supported the candidature of the wife of Arshad. When Vimla Devi came to be elected as Gram Pradhan along with Lokendra (PW-1), who also came to be elected as a member of the Gram Panchayat, appellant Madan and his family members bore a grudge with Lokendra (PW-1) and others on account of the feeling of jealousy.

The FIR states that on 14th October 2003, at about 5.30 PM, when Satendra, the real brother of Lokendra, his nephew Sunil, cousin Ram Kishan s, Sukhpal Singh and his father Jai Singh were going to the house. and had reached the house of Rashid s/o Mustafa, appellant Madan along with Rajveer, Ram Bhajan, Ramveer, and Kanwar Pal who were the sons of Ishwar along with Ishwar himself, who was the brother-in-law (sala) of appellant Madan, also known as Pahalwan, appellant Sudesh Pal, who was the real brother-in-law (sadu) of appellant Madan along with Neetu, who was the nephew of appellant Madan, armed with licensed guns, rifles and country-made pistols came from behind and started firing indiscriminately. As a result of the said firing, Satendra and Sunil fell down on ‘Khadanja’.

Rizwan, Rihan and Masooq Ali succumbed to their injuries and died on the way and their bodies were accordingly kept in their houses. Lokendram1) also reached the place of the incident and witnessed the incident with his own eyes and requested to register the report and take legal action.

Court’s Judgement and Analysis:

It can thus be seen that merely because some of the witnesses are interested or inimical witnesses, their evidence cannot be totally discarded. The only requirement is that their evidence has to be scrutinized with greater care and circumspection. In the present case, both the High Court and the trial court have meticulously scrutinized the evidence and found the testimony of the eye witnesses trustworthy and reliable. Court found that merely because there are certain inconsistencies in the evidence of the witnesses, their evidence cannot be discarded.

Court found that the present case is not a case wherein it can be held that imposition of death penalty is the only alternative. The evidence of witnesses would show that the role attributed is that all the accused persons including both the appellants herein had fired shots and indiscriminately indulged in the said firing.

The trial court imposed capital sentence on appellants Madan and Sudesh Pal. However, insofar as accused Ishwar is concerned, though the evidence against him is on similar lines, he was sentenced to life imprisonment. The High Court, on the basis of the same evidence, though confirmed the death penalty insofar as appellant Madan is concerned, partly allowed the appeal of Sudesh Pal and sentenced him to undergo life imprisonment.

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In Absence Of This Relevant Material Offence Under Section 11 Of P.C. Act Can’t Be Established: High Court Of Bombay

Title: Anil Goel v Union of India & Anr.

Citation: Criminal Revision Application No.183 Of 2023

Coram: Justice Bharati Dangre

Decided On: 25th OCTOBER, 2023

Introduction:

F.I.R.No.RC/18(A)/2015 dated 18/12/2015 is lodged by the CBI, ACB, Cochin for the offences punishable under Sections 7, 12, & 13(2) read with 13(1)(a) & (d) of the Prevention of Corruption Act, 1988. A primary charge-sheet was fled against the other accused persons named in the F.I.R. , leaving out the Applicant and even during the course of investigation from 2015 to 2019, he was never arrested. On 31/07/2019, C.B.I. fled the supplementary charge- sheet against the Applicant, accusing of committing an offence under Section 11 of the P.C. Act.

Facts:

The allegation levelled against him is that, while functioning as Chief Commissioner of Income Tax (CCIT) from the period between 01/01/2014 to 31/12/2015, he occupied a flat (guesthouse) belonging to M/s Heera Constructions, without payment of any rent. t is a claim of the C.B.I. that as M/s Heera Constructions fell within the assessment jurisdiction of the Applicant, the act of staying in the flat, without payment of rent, constitutes the offence under Section 11 of the P.C. Act.

The investigation had revealed that Heera Constructions had taken the subject flat used by it as guesthouse on lease from another private person. On being taken on lease, the lease rent was paid by it. The Applicant is alleged to have stayed in the Apartment, free of cost, by abusing the offcial position, as Chief Commissioner of Income Tax, Thiruvananthapuram. It is alleged that rent of Rs.4,40,000/- was paid by M/s Heera Constructions Pvt. Ltd. to the owner of the Apartment.

It is alleged that Heera Builders paid rent of Rs.20,000/- per month for the period from February 2014 to January 2015 (12 months) and Rs.25,000/- per month from February 2015 to September 2015 (8 months) i.e. Heera Builders paid total rent of Rs.4.4 lakhs to Mrs.Nanma Jayan for the stay of the Applicant in the flat.

The Applicant moved an application for his release on bail, post fling of the charge-sheet on the ground that, he was never arrested during investigation and the same is allowed by the Special Court for C.B.I. at Greater Bombay on 19/09/2022.

The Applicant came to Thiruvananthapuram as CCIT and his sub-ordinate i.e. the ITO showed him the flat, which he was to occupy. Apparently, he did not make any inquiries, unaware about the ownership of the flat or it’s possession. Counsel contended that if it is the allegation that he continued to reside free of cost, then why no notice was ever issued and in fact, the charge-sheet disclose that the service charge, as directed to be paid, was borne by the Applicant from January 2014 to November 2015.

Court’s Analysis and Judgement:

From reading Section 11 of P.C. Act it is evident that the act of a public servant, accepting or obtaining or attempting to obtain, either for himself or for any other person, any “valuable thing”, without consideration or for an inadequate consideration, from any person whom he knows to have been or to be likely to be concerned in any proceeding or business transacted or about to be transacted by the public servant or has any connect with his offcial position, then such an act would amount to an offence under Section 11.

But, In absence of this relevant material in the charge-sheet, which would constitute as a ground for presuming that the Applicant has committed the offence, the charge must be considered to be groundless, which is a same thing as saying that there is no ground for framing the charge.

Applicant occupied the flat, but has failed to pay the rent and this act is sufficient to make out a prima facie offence under Section 11 read with Section 12 of the P.C. Act though Accused No.2-Sarath was refused sanction and he was not charge-sheeted and, hence, the offence under Sections 34 and 120-B of the IPC is not made out. In absence of establishing that the flat has been enjoyed free of cost and it has a connect with the duty to be discharged by the Applicant in relation to the assessee, merely because a assessee fall within his jurisdiction, it cannot be said that the ingredients of Section 11 are made out. Hence the order dated 13/02/2023 was set aside by the court and the Applicant is discharged from Special Case No.751 of 2022.

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“Estoppel Denied: Court Upholds Ineligibility Criteria, Dismisses Writ Petition for District Judge Post”

Title: Trupti Mayee Patra vs. Registrar, Examination, Orissa High Court

Citation: W.P.(C) No. 35020 Of 2023

Coram: MR. JUSTICE D.DASH, MR. JUSTICE G. SATAPATHY

Decided on: 3-11-23

Introduction:

This case involves a writ petition presented through a hybrid arrangement (virtual/physical) mode. The petitioner seeks the extraordinary jurisdiction of the court under Articles 226 and 227 of the Constitution of India. The primary relief sought is a direction to the Opposite Party to include the petitioner in the list of eligible candidates for participating in the recruitment examination for the position of District Judge from the Bar, 2023. The specific demand is for the issuance of a fresh list to address the petitioner’s inclusion in the said examination

Facts:

The petitioner, initially enrolled as an advocate with the Orissa State Bar Council, practiced from 2004 to 2014. Subsequently, she joined as a Junior Clerk in the office of District & Sessions Judge, Malkangiri, surrendered her license in 2016, and later became an Assistant Public Prosecutor from March 13, 2018. The petitioner applied for the post of District Judge from the Bar in 2020, 2021, and 2022 but was unsuccessful.

In 2023, the High Court of Orissa issued an advertisement for the same post. The petitioner applied, but her eligibility was questioned, and she was found ineligible due to the requirement of seven years of continuous Bar practice. The respondent argues that the petitioner does not meet this criterion. The petitioner contends that having been allowed to sit for the examination in previous years, she should not be disqualified this time. The court notes the petitioner’s active practice from 2004 to 2014 but finds that she lacks seven years of continuous practice preceding her application.

The case revolves around the eligibility criteria outlined in Article 233 of Chapter-VI (subordinate Courts) of the Constitution of India, specifically Clause 2, governing the appointment of District Judges. The court has to determine whether the petitioner fulfils the necessary criteria for eligibility in the recruitment examination for the post of District Judge from the Bar.

Court analysis & judgement:

In this judgment, the court addresses the petitioner’s plea for inclusion in the eligibility list for the recruitment examination to the post of District Judge from the Bar. The petitioner relies on the principle of estoppel, arguing that having been allowed to appear in the examination in previous years, she should not be disqualified this time. The court dismisses this argument, emphasizing that the inadvertent allowance of a person to appear in an examination earlier, who was not eligible, does not confer a right to appear when the necessary eligibility criteria are not met. The court distinguishes the relied-upon decisions in Basanta Kumar Mohanty and N. Murugesan, stating that they are not applicable to the present case due to different contexts and statutory bars.

The judgment refers to the eligibility criteria stated in the advertisement by the High Court of Orissa, which requires candidates to have at least seven years of practice as an advocate as of April 1, 2023. The court concludes that the petitioner does not meet this criterion, rendering her ineligible for the examination.

The court cites the decisions of the Apex Court in Deepak Aggarwal and Dheeraj Mor, applying them to the present case. It asserts that the petitioner’s lack of continuous practice for seven years makes her ineligible. Consequently, the court upholds the decision of the Opposite Party (OP) to consider the petitioner ineligible for the post of District Judge, stating that it does not require interference. As a result, the writ petition is dismissed as devoid of merit, with no order as to costs.

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