A bench comprising Justices B P Singh and Harjit Singh Bedi made the interim order on the petition filed by M/S Heinz Italia, who challenged the Punjab and Haryana High Court judgement dated October 27, 2005, dismissing their appeal against the trial court order and their application for a restraint order against the Dabur India Limited.
The petitioners had registered their trademark 'Glucon D' under the Trade and Merchandise Marks Act, 1958. This trademark had earlier been registered in the name of Glaxo on May 21, 1975 but the same was later assigned with goodwill on September 30, 1994 to the petitioner.
Glaxo labs had also assigned their rights in the artistic work used on the packaging.
Dabur India launched a similar product under the name Glucose D by using packaging, which was deceptively similar to the packaging used for Glucon D. The appellants sent a legal notice calling upon the respondent to desist from using the mark and the deceptive packaging.
The petitioners in their appeal before the apex court contended that they were the owners and prior users of the trademark and hence the respondent should be restrained from using deceptively a similar mark with identical 'a happy family' superimposed on both to create confusion among the consumers.
The apex court, in its judgement dated May 18, noted, " We are of the opinion that packagaing of Glucose D and Glucon D is so similar that it can easily confuse a purchaser. We also feel that the mere fact that the respondents have time and again made small changes in their packaging is an attempt to continue to mislead the purchaser and to make it more difficult for the appellants to protect their mark, which the record shows has acquired an enviable reputation in the market, which is sought to be exploited by the respondents.'' ''We, accordingly set aside the order of the trial court dated December 11, 2003 and the order of the high court dated October 27, 2005. However, as this order is confined only to the limited question of an ad interim injunction, any observation made in this order would not bind the trial judge in the proceedings in the suit. The application for ad interim injunction is accordingly allowed,'' the court added.