PARAKH VANIJYA PRIVATE LIMITED versus BAROMA AGRO PRODUCT AND OTHERS

Citation: [2018] 6 S.C.R. 967 · Decided: 12-07-2018 · Supreme Court of India · Bench: RANJAN GOGOI · Disposal: Dismissed

Judgment (excerpt)

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PARAKH VANIJYA PRIVATE LIMITED
v.
BAROMA AGRO PRODUCT AND OTHERS
(Civil Appeal No. 6642 of 2018)
JULY 12, 2018
[RANJAN GOGOI AND R. BANUMATHI, JJ.]
Trademark – Appellant sold special Biryani Rice under the
mark “MALABAR”– Suit filed by appellant against respondents for
infringement and passing off special Biryani Rice under the mark
‘MALABAR GOLD’ or other mark deceptively similar to ‘MALABAR’
– High Court held that the respondents were entitled to use the
word ‘MALABAR’ in conjunction with ‘BAROMA’ with modifications,
for selling its Biryani Rice – On appeal, held: Though, appellant is
the registered owner of the label mark in Class-30, however, in the
said registration u/Class-30, there is a disclaimer to the exclusive
use of the word ‘MALABAR’  in terms whereof the appellant has no
right over the exclusive use of the word ‘MALABAR’ – High Court
rightly held that the appellant cannot claim exclusive right over the
use of the word ‘MALABAR’ – Further, on comparing the label mark
of the appellant selling Biryani Rice with word ‘MALABAR’ and the
modified label mark of the respondents, there is no similarity between
the two label marks – Impugned order not interfered with.
Dismissing the appeal, the Court
HELD: 1.1 The appellant is the registered owner of the
label mark in Class-30 in respect of rice, flour and preparations
made from cereals, bread, cakes, biscuits, pastry and spices.
Class-30 of the classification of goods and services under the
statute covers diverse spices and other edible materials as wheat,
rice, coffee, tea etc. In the registration under Class-30, there is a
disclaimer for the word ‘MALABAR’. The appellant though claims
exclusive right over the word ‘MALABAR’ since there is a
disclaimer to the exclusive use of the word ‘MALABAR’, the
appellant has no right over the exclusive use of the word
[2018] 6 S.C.R. 967
967
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SUPREME COURT REPORTS
[2018] 6 S.C.R.
‘MALABAR’. The respondents have also inter alia brought on
record the materials to show the registration of other goods under
Class-30 with the word ‘MALABAR MONSOON’ granted in
favour of Amalgamated Bean Coffee Trading Company Limited
for Coffee Cream, Coffee included in Class-30. The registration
of the mark ‘MALABAR MONSOON’ under Class-30 also
contains similar disclaimer of the word ‘MALABAR’. Likewise,
the label ‘MALABAR COAST’ has been registered in Class-30
for Coffee, Tea, Cocoa, Sugar etc. in favour of Tropical Retreats
Private Limited which again contains a similar disclaimer for the
exclusive use of the word ‘MALABAR COAST’. Having regard
to the materials placed on record, the High Court rightly held
that the appellant cannot claim exclusive right over the use of
the word ‘MALABAR’.  [Paras 6, 7][970-C-D, F-H; 971-A]
1.2  The label of the respondents containing the words
“BAROMA”, “MALABAR”, “GOLD” are circled having a
different get-up from that of the appellant. By comparison of the
two label marks, both appear to be substantially different. There
appears to be no similarity between both the labels, more so,
deceptive similarity. Keeping in view the interest of the
respective parties who are having substantial turn-over in their
respective business, the High Court rightly held that the
respondents would be entitled to use the word ‘MALABAR’ in
conjunction with ‘BAROMA’ with the different get-up as approved
by the High Court. There is no serious infirmity warranting
interference with the impugned order. [Para 8][971-B-D]
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 6642
of 2018.
From the Judgment and Order dated 01.03.2017 of the High Court
at Calcutta in A.P.O.T. No. 349 of 2016.
Shyam Divan, Arvind Nayar, Gourab K. Banerji, Sr. Advs., Hemant
Daswani, P. S. Sudheer, Rishi Maheshwari, Bharat Sood,
Sanjay K. Shandilya, Gautam Roy, Apoorva Agrawal, Saurav Jana,
Abhishek Singh, Hemant Sharma, Mushtaq Ahmad, Sahil Tagotra, Ms.
Manisha Singh, Advs. for the appearing parties.
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The Judgment of the Court was delivered by
R. BANUMATHI, J. 1. Leave granted.
2. This appeal arises out of the order dated 01.03.2017 passed by
the High Court of Calcutta in AOPT No.349 of 2016 affirming the order
of the Single Judge in and by which it was held that the respondent-
defendant is entitled to use the word ‘MALABAR’ in conjunction with
the mark ‘BAROMA’ for selling its product - Biryani Rice.  By the
impugned order, the Division Bench has also affirmed the findings of the
Single Judge that subject t

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