Chennai: The Madras high court has vacated its interim order passed earlier, which restrained Patanjali Biscuits Pvt.Ltd from infringing Hatsun Agro Product Ltd trade mark “Arokya” or any other mark or marks which are in any way identical or deceptively similar to Hatsun Agro Product Ltd trade mark “Arokya”.
Justice S.Vaidyanathan vacated the interim order dated February 28, 2019, while passing orders on the applications filed by Patanjali Biscuits Pvt Ltd.
Originally, on the applications arising out of a suit filed by Hatsun Agro Product Ltd, the judge had granted the interim order. Aggrieved, Patanjali Biscuits filed the present applications.
Vacating the interim injunction, the judge suggested that the applicants (Patanjali Biscuits) shall change the wrappers by portraying the word “Aarogya” very smaller in size (like “smoking is injurious to health” printed in the cigarette pocket) so as to ensure that the consumers are able to identify the products easily even at first sight.
The judge said the plaintiff (Hatsun Agro Product) stated that there was an infringement of the trademark “Arokya” and Patanjali Biscuits have been using the very same trademark of the plaintiff by simply adding a letter “A” which was deceptively similar and identical to that of the plaintiff's trademark. Though the mark 'Aarogya' used by Patanjali Biscuits was deceptively similar and one and the same, they have been using the trademark as 'Patanjali Aarogya' which was registered in the year 2016.
Admittedly, the plaintiff had the knowledge of the applicants infringing its trademark with the similar pronunciation (though spelling is different), when they applied for registration of their trademark itself. It was not known as to why the plaintiff had not immediately come down to question such infringement in a court of law in the year 2016 and the act of the plaintiff can merely be termed as “Fence Sitting” for their lack of decisiveness, neutrality or hesitance to choose between two sides in a competition tc., Since there has been considerable delay on the part of the plaintiff in instituting the suit, the plaintiff was not entitled to any interim relief as sought by them and even if granted ex-parte, that has got to be revoked during passage of time, the judge added.
The judge said there was no inter connectivity between the products sold by the plaintiff and the defendants and the classes of registration were also different, as the plaintiff's trademark was registered under class 29, whereas the products of the defendants was under class 30. The plaintiff trademark 'Arokya' was familiar amongst general public in connection with milk and milk products only, whereas the defendants involve in preparation of biscuit related items. “In this regard I find much force in the contention raised by the counsel for the defendants that the mark has to be viewed as a whole and together and
cannot be looked into a divided form and in an isolated manner. It is seen that the defendants are carrying on its business under the trademark “Patanjali Aarogya” for nearly three years and the plaintiff, having kept quiet all these years, cannot attempt to stall the business of the defendants on one fine morning, unless there is a specific finding in the suit after full fledged trial. Hence, this court finds that there is no need for an interim order to be in operation and therefore, the interim injunction granted by this court on February 28, which was later on order to be kept in abeyance for shorter period, is liable to be vacated”, the judge added....