The Supreme Court has set aside the Bombay high court judgment and allowed the prosecution of a criminal complaint filed by Iridium India Telecom Ltd against Motorola Incorporated. According to the complaint, Motorola induced Iridium India and several others to invest in a project which turned out to be a technological disaster. They collectively invested $70 million for purchasing equity in a subsidiary company as well as spent a sum of about Rs 150 crore in setting up a gateway at Deghi in Pune. The complaint stated that the representations made by Motorola proved to be fraudulent and deceitful. The high court, however, quashed the complaint. Iridium India appealed to the Supreme Court. It allowed the appeal, stating that the inherent power vested in the high court ought not to be exercised to stifle a legitimate prosecution. “In the present case, the issues involved are of considerable importance to the parties in particular, and the world of trade and commerce in general.” The high court should not have analysed the complicated commercial documents at the preliminary stage and quashed the complaint, the Supreme Court said. 1
Fish exporter’s registration ordered to be restored
The Supreme Court has asked the Marine Products Export Development Authority to restore the registration of exporter Oryx Fisheries which was cancelled on an allegation of exporting substandard shrimp food to a firm in Sharjah. The court allowed the appeal of the exporter stating that the procedure of cancellation of registration in this case was not fair, as the notice did not disclose the reason for doing so. While the show cause notice issued by the authorities showed ‘bias’, the appellate authority passed an order without giving reasons. The Bombay high court upheld the cancellation of the registration. The Supreme Court stated that the high court did not deal with the aspect of fairness and natural justice and therefore set aside the high court order.
No bar on using common descriptive expression for goods
A division bench of the Delhi high court last week dismissed the appeal of Marico Ltd against its rival in cooking oil market, Agro Tech Foods Ltd, over the use of expressions exclusively claimed by the former. Earlier, a single judge bench had held that no case for infringement was made out on account of the use of the expression "Low Absorb" by Agro Tech which was alleged to be deceptively similar to the registered trademarks "Losorb" and "Lo-Sorb" of the Marico.
He had also held that use of the expression "Low Absorb" by Agro Tech would not amount to ‘passing off’, although Marico also claimed a right in the unregistered trademark "Low Absorb". The division bench affirmed that Marico can have no exclusive ownership rights on the trademark "Low Absorb". The expression is quite clearly a common descriptive expression/adjective. It was not a coined word and at best it is a combination of two popular English words which are descriptive of the nature of the product.
The judgment added: “We are also of the view that
it is high time that those persons who are first of the blocks in using a trademark which is a purely descriptive expression pertaining to the subject product ought to be discouraged from appropriating a descriptive expression or an expression which is more or less a descriptive expression as found in the English language for claiming the same to be an exclusive trademark and which descriptive word mark bears an indication to the products kind, quality, use or characteristic.”
Chinese chocolate maker in trademark violation case
The Delhi high court has allowed the Indian distributor of Chinese chocolates to market its existing stock subject to certain conditions, but barred it from importing it in future. Earlier, the court had granted an order restraining the distributor, Shri Maa Distribution (India) Ltd from marketing the products "Cherier" and "Ginnou" as it prima facie infringed the products of Ferrero Spa, "Ferrero Rocher" and "Nutella" brands particularly the trademark in the get-up as well shape of the product, packing etc. Ferrero had also argued that milk confectionary items such as chocolates were prohibited from importation, if the goods were of Chinese origin. The high court granted relief to the distributor in view of the Diwali festival season, but asked the central and Delhi government to educate the consumers about the food quality specifications, like the manufacturer’s name on the package, in the various laws so that public health is not affected.