Delhi High Court bars the use of 'Krishna' to market dairy products
The facts of the case:
The appellants, Bhole Baba Milk Food Industries Ltd., who are manufacturers of milk and milk products since 1992 are also registered owners of the label mark “KRISHNA” which has the pictorial depiction of Lord Krishna standing on a lotus flower which falls in Class-29 of the Trade Mark Act.
The respondent, Parul Food Specialties (P) Ltd., who are also manufacturers of milk products 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.
The appellants attempted to restrain the respondent from using the word ‘Krishna’ to market their products on the grounds that the word ‘Krishna’ had now acquired a secondary distinctiveness with respect to the appellant’s products, as was evidenced through its sales figures etc.
Single Judge Bench Judgment
At the first stage of the litigation Justice Rajiv Shakhdar, of the Delhi High Court had ruled in favor of the defendants and was of the view that prima facie, in order for a mark to acquire secondary distinctiveness, the consumer should immediately be reminded of the product of the owner of the mark while looking at it. He also held that the name KRISHNA is associated in Hindu Mythology with Lord Krishna and is a household name and it cannot achieve secondary distinctiveness. He also held that it was common knowledge that Lord Krishna as a child was fond of butter and other milk products and used to steal the same. Therefore, in Justice Shakhdar’s opinion, Lord Krishna and milk products go hand in hand as a result of which the Appellants were not entitled to claim monopoly over the name of the deity.
Unhappy with the decision of the Single Judge, the Plaintiffs/Appellants appealed to a Division Bench, consisting of Justice Pradeep Nandrajog and Justice Sunil Gaur.
Agreeing with the views of the Single Judge, the Division Bench reiterated that the name of a deity cannot be monopolized since 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 agreed with the decision of the lower court, directing the respondent to print the words “PARUL’S LORD” with the same prominence as the word “KRISHNA” so that it would not be confused with the products of the appellants.
The Division Bench also came to the conclusion that registration obtained by the appellant is not per se for the word KRISHNA but it is for the word KRISHNA written in a distinctive form. In pertinent part, the Division Bench stated that the “distinctiveness to which the appellant can lay a claim is to what it has got registered as a whole, and therefore such registration cannot possibly give an exclusive statutory right to the appellant qua a particular word of common origin.”
These views of the Division Bench are however tentative and are subject to the outcome of evidence led during trial.