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Trade Marks Act, 1999 – Sections 12, 134, 159(5)

October 3, 2011
Hindustan Unilever Limited   V. Ashique Chemicals &  ors decided on 08/08/2011 The plaintiff is a registered proprietor of the marks “SUN”, “SUNLIGHT” and “SUNSILK” under Class 3. The plaintiff seeks a perpetual injunction, restraining the defendant from using the mark “SUNPLUS” or the word “SUN” with any prefix or suffix or any other deceptively similar labels in relation to soaps or detergents. The plaintiff has admittedly not used the mark “SUN” in India but the other marks used by the plaintiff are associated with the word mark “SUN”. Reasons and Direction: The suit has been dismissed due to the following reasons:
  • The Defendant has been using the mark “SUNPLUS” since the year 1997 and developed a reputation in the State of Kerala. The mark “SUN” has not been used by the plaintiff for over 60 years.
  • There is a possibility that if plaintiff’s mark had acquired reputation in the State of Kerala, it would have come across the plaintiff’s mark which has been widely advertised in a variety of ways.
  • In that event, the plaintiff would have noticed the defendant’s mark and adopted proceedings earlier.
  • As the defendant has been using the mark for almost fifteen years now, the plaintiff’s action for infringement of the registered mark “SUN” cannot succeed.
  • Nor it is considered that “SUNPLUS”, as used by the defendant, is deceptively similar to the plaintiff’s mark “SUNLIGHT”.
  • The marks “SUNPLUS” and “SUNLIGHT” are phonetically and visually distinct. Moreover, “SUNPLUS” is written in a stylized manner.
  • In the circumstances, the Notice of Motion is dismissed with costs fixed at Rs.10, 000/-.
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