NANDHINI DELUXE Vs. KARNATAKA CO-OPERATIVE MILK PRODUCERS FEDERATION LIMITED

JUDGEMENT

(1.) ALL the petitions are preferred from the common order dated 04.10.2011 of the Intellectual Property Appellate Board (IPAB), Chennai in M.P. No. 47 and 53/2010 in O.A. No. 12 and 13/2009 and other connected matters. The appeals before the IPAB were filed by the respondent herein. They were allowed on the basis that the respondent herein was using the mark "NANDINI" since several years, before the petitioner tried to adapt it for their restaurant, which would fall in a different class. On the basis of the material on record, the IPAB has found that the respondent herein was in regular and consistent use of the mark "NANDINI" and it had become entrenched in the minds of the consumer and it would not be in the interest of the public to allow the petitioner herein to use the mark in connection with the commodities in question.

(2.) PETITIONER herein had thereafter also filed review application on the ground that the respondent had not proved their user for their goods and the affidavit filed by them was incorrect. The Appellate Board decided the review application by their order dated 01.05.2013 holding that there was no ground for reviewing the aforesaid order even if it were assumed that the review petition was maintainable.

(3.) HAVING regard to the provisions of Sections 9 and 11 of the Trade Marks Act, 1999 the principle that emerges is that a mark is not to be registered if it is likely to deceive the public or cause confusion; and if, because of its identity or similarity with an earlier trade mark and similarity of goods or services covered by it, there exists likelihood of confusion. When the mark 'NANDINI', is held to have acquired a distinctive character and has become well -known, the use of another mark different only in one alphabet but with no difference in spelling or pronunciation in the local language, would very likely cause confusion in the minds of the public if allowed to be registered for commodities falling in the same classes. Thus, there is no infirmity in the reasoning and finding in the impugned order of the IPAB.