SANJIB BANERJEE,J. - (1.) The rhinoceros is in the court: not to protest its shrinking natural habitat as it has no voice to do so; but only by its shorter, more-endearing name. And even as the parties jostle in the reflected glory of the majestic rhino, the name itself threatens to be a bull in the China shop of trademark law.
(2.) The appeal is directed against a judgment and order of December 9, 2015 by which the appellant has been restrained from manufacturing, selling or distributing or advertising or dealing with cement under the mark 'Rhino' in a particular colour scheme and get-up and also from infringing the contesting respondents' mark of 'Rhino'. In addition, the appellant has also been restrained from passing off cement under the mark 'Rhino in sacks with the red, black and white colour scheme or get-up similar to the contesting respondents'. The respondent Nos. 1 and 2 have a cross-objection to the extent that such respondents were found not to have made out a case under Section 29(4) of the Trade Marks Act, 1999 and to the extent that further orders sought by such respondents as plaintiffs were declined.
(3.) The appellant has started selling cement in gunny bags and like packaging material from January, 2015 under the mark 'Rhino'. The respondent Nos. 1 and 2, the plaintiffs in the suit (hereinafter referred to as the respondents), have been using the word-mark 'Rhino', which is registered in class 19, in course of their manufacture and sale of asbestos sheets and asbestos building materials. The registration, granted on March 31, 1980, dates back to the date of the application of October 10, 1977, which claimed user thereof since September 25, 1977. The discussion here proceeds on the basis that the registered word-mark 'Rhino' remains valid and such registration has been kept renewed, since no argument to the contrary has been made. In addition, the respondents have a registration in respect of a black rectangular device with the word 'RHINO' appearing in white therein. The device-mark is registered in class 6 for galvanised steel sheets with effect from January 1, 2007 and dating back to January 18, 1996, which was the date of the application. The claim in the application was that such device-mark had been used since March, 1995. Another device-mark in the form of the outline of a rhinoceros is registered in favour of the respondents since October 14, 2003 and dating back to September 10, 1997. Such registration is in class 6 for galvanised steel sheets. There is a further device-mark in the outline of a rhinoceros registered in favour of the respondents since May 16, 2006 and dating back to September 10, 1997 in class 19 pertaining to asbestos sheets and asbestos building materials.;