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TMI Blog2001 (4) TMI 936X X X X Extracts X X X X X X X X Extracts X X X X ..... nsel appearing for the plaintiff has submitted that the plaintiff had already obtained registration for its name and logo in 70 countries world wide and approximately 100 in number are also pending consideration. The plaintiff has 37 restaurants world wide and is planning the opening of further restaurants throughout the globe, and particularly in India. The plaintiff has advertised in the leading and premier magazines and newspapers. He has further disclosed, that the revenues/sales in 1997 were US$ 108 million and in 1998 were US$ 213 million. Because of its success, largely because of its particular unusual and novel name and the ambience and decor of its outlets, its shares are quoted on the New York Stock Exchange. It has its own web-site. Consequent to its phenomenal progress, the plaintiff has been receiving trade inquiries from all corners of world, some of which have been mentioned in the list filed before this Court. The defendant is sated to have opened restaurant 'RAINFOREST CAFE' masquerading as one of the outlets of the plaintiff. The defendant has copied the plaintiff's name, as also tagline, of 'A WILD PLACE TO EAT'. There is a certainty that, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... agar, Kotla-Mubarakpur, Bhisham Pitama Marg, New Delhi-110003 or such other place or premises as may be necessary and take stock of and confiscate all crockery, cutlery, stationery, menu cards, staff uniforms, bill boards, napkins, paper napkins, brochures, promotional material, point of sale material, letter heads, visiting cards, cash memos, sign boards, sign posts, leaflets, cartons, packing material or any other literature of whatsoever description and nature, bearing the impugned RAINFOREST CAFE mark and logo or any other trade mark/trading style/trade name deceptively similar thereto or reminiscent thereof. The Local Commissioner will submit his report within 5 days. The fee of the Local Commissioner is fixed at ₹ 7,500/- shall be borne by the plaintiff. 2. Mr. Chidambram, learned Senior Counsel for the plaintiff, has submitted that the plaintiff commenced business 1994 and has obtained seventy Trade Mark registrations internationally, and another hundred odd applications are pending. In India, these applications were filed on 17.4.1997, 7.5.1997 and 17.8.1998 and are pending in Class 16 and 27. It was emphasised that the plaintiff has thirty-seven restaurants wo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acie prove that some person was mislead into patronising the defendants mistakenly believing it to be the plaintiff branch, or franchise etc. 4. In cases such as the present all that the Court is required to consider at this stage is whether the plaintiff has succeeded in making out a prima facie case for the grant of discretionary relief. In S.M. Dyechem Ltd. v. Cadbury (India) Ltd. 2000ECR1(SC) , the Apex Court had noted that in patent and trade-mark litigation it is necessary for the plaintiff not merely to make out a better case than the defendants, but rather a strongly preponderant case in its favor. The parties are undeniably in the same business. The defendants have been sanguine in attempting to argue that the logo and stylized writing are distinct of each other, by pointing out the difference between them. The test is not that the two names/logos/scripts should be jurally examined in juxtaposition. It is enough if the two are viewed and then the question is posed, on the mental recollection, whether there is a likelihood of deception or confusion. In my view there is such similarity as would make them indistinguishable. The differences are so carefully created that it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a trade mark in respect of a product through advertisement in media amounts to use of the trade mark whether or not the advertisement is coupled with the actual existence of the product in the market. 6. The Division Bench also quoted from the Seven Up Company v. O.T. Limited Anr., (1947) 75 CLR 203 ; where the Australian Judge frowned upon as under : Any attempt by one trader to appropriate the mark of another trader although that trader is a foreign trader and the mark has only been used by him in a foreign country. It, Therefore, seizes upon a very small amount (sic) of the foreign mark in Australia to hold that it has become identified with and distinctive of the goods of the foreign trader in Australia. 7. These views have also been favored in the Apple Computer Inc. v. Apple Leasing Industries 1992 (1) ALR 93, and in Kamal Trading Co., Bombay and Others v. Gillette U.K. Limited, Middle Sex, England, 1998 PTC 1. The opinion of the Division Bench of this Court in the WHIRLPOOL case is contained in paragraph 25 of the well-reasoned and detailed judgment which was reaffirmed by the Supreme Court. It reads as follows: Thus a product and its trade name transcend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ency Industries Ltd. v. Kedar Builders, 41(1990)DLT684 . In the context of whether a prima facie case exists, it is relevant to take not of the fact that the name 'Rainforest' and Leaf Design Logo has been accorded registration in the USA. The plaintiff has protected its interests in the Trade name 'Rainforest' in several foreign Courts. 10. I am convinced that at this stage the plaintiff is not disentitled to any injunctive protection because of non-user and non-activity in India; that it must be averred that the defendants have picked up the idea from the plaintiff; that the plaintiff should have applied for the next closet activity (since services are not within the contemplation of the Act) as the defendant has done having applied for eateries; that it is essential that advertisements should have been issued in India. It is also argued by Dr. Singhvi that the public right to competition must be balanced with the individual's right for protection of his ideas. I agree that this balance must be kept in mind. However, the public should be protected against patronising a particular business harbouring under the illusion that it was part of a successful world- ..... X X X X Extracts X X X X X X X X Extracts X X X X
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