Case Note & Summary
The appellant, Meher Distilleries Private Limited, is the registered proprietor of the trademark 'THE ASWA' under Registration No.2716867 in Class-33 for alcoholic beverages. The appellant's distillery is located in village Aswa, Dahanu Taluka, Palghar District, Maharashtra. The appellant applied for registration on 11 April 2014 and obtained registration in 2016. The appellant was granted excise label approval on 18 August 2020. The appellant came to know that respondent No.2, Radico Khaitan Ltd., was manufacturing and exporting a single malt whiskey to respondent No.1, SG Worldwide Inc., under the trademark 'ASĀVA'. The appellant filed a commercial suit for trademark infringement and an interim application seeking to restrain the respondents from using 'ASĀVA'. The learned Single Judge dismissed the interim application. The appellant filed this commercial appeal under Section 13 of the Commercial Courts Act, 2015. The court considered whether the appellant made out a prima facie case for grant of interim injunction. The court held that the marks 'THE ASWA' and 'ASĀVA' are not phonetically similar. The mark 'THE ASWA' is descriptive of the geographical origin of the product (village Aswa) and thus entitled to a narrow scope of protection. The appellant failed to establish a strong prima facie case. The balance of convenience was not in favor of granting an injunction as the respondents had already launched the product and an injunction would cause them irreparable loss. The appeal was dismissed.
Headnote
A) Trademark Law - Infringement - Phonetic Similarity - Section 29 Trade Marks Act, 1999 - The court examined whether the marks 'THE ASWA' and 'ASĀVA' are deceptively similar. Held that the marks are not phonetically similar and the appellant failed to establish a prima facie case for infringement. (Paras 2-4) B) Trademark Law - Descriptive Mark - Distinctiveness - Section 9 Trade Marks Act, 1999 - The mark 'THE ASWA' is derived from the village name 'Aswa' and is descriptive of the geographical origin of the product. Held that such descriptive marks are entitled to a narrow scope of protection. (Paras 3-4) C) Civil Procedure - Interim Injunction - Prima Facie Case - Balance of Convenience - The court held that the appellant did not make out a strong prima facie case, and the balance of convenience was not in favor of granting an injunction as the respondents had already launched the product and an injunction would cause them irreparable loss. (Paras 2-4)
Issue of Consideration
Whether the appellant made out a prima facie case for grant of interim injunction restraining the respondents from using the mark 'ASĀVA' for single malt whiskey, pending trial of the suit for trademark infringement.
Final Decision
The appeal is dismissed. The impugned order of the learned Single Judge dismissing the interim application is upheld.
Law Points
- Trademark Infringement
- Phonetic Similarity
- Descriptive Mark
- Prima Facie Case
- Balance of Convenience
- Irreparable Loss
