Agriculture Produce and Processed Foods held to be allied and cognate
The mark of the plaintiff and the defendant prima facie appear to be similar both visually as also phonetically, with ‘MONSOON HARVEST’ being the dominant part thereof. Mere addition of the word ‘WINGREENS’ or the logo in the defendant’s mark is not sufficient to distinguish the same on application of the test of an unwary purchaser of an average intelligence with an imperfect recollection.
The Plaintiff, Preetendra Singh Aulakh (Preetendra) sought an injunction against the Defendant, Green Light Foods Pvt. Ltd. (GLF) alleging trademark infringement, passing off, unfair competition, etc., from copying their mark MONSOON HARVEST/ and to prevent them from using an identical mark MONSOON HARVEST as a trademark, corporate name or domain name. Post filing of the lawsuit GLF amended the mark to ‘WINGREENS MONSOON HARVEST’ and raised that as their main defense.
Preetendra in the suit contends:
- They are engaged in the business of agriculture and agricultural products since the 1970s and entered the business of organic farming in the year 2002.
- They adopted the mark MONSOON HARVEST FARMS and started using the device in November 2006 in relation to a range of agricultural products such as rice, fruits, jaggery, pulses, oils, spices, seeds, grains, pickles, flour and allied products.
- The marks MONSOON HARVEST FARMS and is registered in classes 29 and 30. Their further applications for the mark MOSOON HARVEST FARMS and is pending registration in class 30. They have registered the website www.monsoonharvestfarms.com and have large following on social media pages.
- They became aware of GLF when their impugned mark was cited during the examination of the former’s application in class 30. By inadvertence Preetendra in response to the examination report stated that the rival marks are not similar. Thus, they have filed an application to amend the reply to the examination report.
- The application for the MOSOON HARVEST FARMS mark in Class 30 has been opposed by GLF and the proceedings are ongoing before the Trademark Registry. In the said proceedings, GLF has contended that the rival marks are identical.
- Preetendra has also filed opposition against GLF’s application for the MONSOON HARVEST word and device mark in class 30. In the counter statement GLF has contended that their mark is distinctive and also that ‘Monsoon’ and ‘Harvest’ are common to the trade, and none can claim exclusivity over the said words. GLF has made contradictory statements before the Court and Trademark Registry which ought not to be allowed.
- GLF has copied the marks of Preetendra to cause confusion and deception among the trade and public and it amounts to trademark infringement and passing off. There have been instances of confusion among the rival products in the market.
- During the course of the hearing GLF submitted that they have amended the mark to by adding the word Wingreens.
- Preetendra contends that mere addition of the word ‘Wingreens’ will not suffice in distinguishing the rival marks.
GLF countered the injunction on the following:
- They are the proprietor of the mark ‘MONSOON HARVEST’ and use the same for goods falling under Class 30. They are dealing with millet-based nutrition bars, cookies, muesli, granola, breakfast cereals, nut bars, granola bars, energy bars, etc., under the ‘MONSOON HARVEST’ marks since the year 2015. The goods dealt with by the parties are different.
- ‘MONSOON HARVEST’ branded goods are sold in brick-and-mortar grocery stores and also through their website www.monsoonharvest.in and other online shopping websites.
- The applications for the marks MONSOON HARVEST and in class 30 is pending registration.
- GLF has now amended the mark by adding the word ‘Wingreens’ which will help to avoid confusion among the rival marks.
- Preetendra during the examination of their application when GLF’s marks were cited had contended that the rival marks are not similar, visually, structurally and phonetically. Thus, they cannot take a contrary stand in the instant suit.
- The primary issue in the instant dispute is whether the rival marks,
‘MONSOON HARVEST FARMS’ and ‘WINGREENS MONSOON HARVEST’ are similar so as to cause confusion. The court at the outset observed that mere addition of the word ‘Wingreens’ will not suffice to distinguish the deceptive similarity between the rival marks.
- Whether the rule of estoppel will operate against the parties, the Court observed both parties have made contradictory statements before the Court and the Trademark Registry. The court opined that without going into the question of estoppel, the present application is being decided on merit rather than on the basis of the stand taken by them before the Trademark Registry.
- Whether the rival goods are similar, the court held that both party’s goods come under the umbrella of food items. Admittedly, Preetendra deals in the sale of raw and unprocessed agricultural and horticultural products, while GLF sells processed food items such as granola bars, energy bars, cookies, bread and other confections. Thus, the intended purpose of the parties is to market and sell their food items to the public at large and rival goods will be normally sold through the same supply chain to the same customers. Moreover, Preetendra claims to be expanding its business into processed food items, which can be considered as a natural progression of its business. They have also brought on record evidence showing actual complaints of confusion being caused in the mind of an unwary consumer. Thus, prima facie the rival goods are allied and cognate.
- As to who is prior adopter of the mark, the court concluded that the documents on record indicate that Preetendra is the prior adopter and user of the mark and thus, the argument regarding prior use ought to fail.
In light of the above, the Court held that Preetendra has made out a prima facie case and balance of convenience is also in their favour. The Court thus granted an injunction restraining GLF from using the mark MONSOON HARVEST/ and/or the new mark or any other mark deceptively similar to MONSOON HARVEST FARMS or till the disposal of the suit.
GLF has filed an appeal before the Division Bench challenging the interim injunction order which is pending adjudication before the Delhi High Court.