• Achyuth Rao N

AUSTIN NICHOLS & CO INC & ANR v. GWALIOR DISTILLERIES PRIVATE LTD

Recently, in a trademark infringement case, the Delhi High Court while holding Gwalior Distilleries Private Ltd.’s ‘Royal Champ’ whiskey to be deceptively similar to Seagram’s ‘Royal Stag’, has permanently restrained, on Gwalior Distilleries Private Ltd from making and selling ‘Royal Champ’ whiskey and imposed a cost of INR 20 lakh.

In the present case, the goods of the plaintiffs and defendant are identical, that is whiskey. The mark of the defendant is deceptively similar to that of the plaintiffs. The test to be applied for judging the claim of infringement and passing off is that of an unwary consumer with average intelligence and imperfect recollection. As per the suit, “the defendant has copied all the features that collectively distinguish the plaintiff’s trade dress of Royal Stag. The bottle of the defendant has a label affixed upon the front panel, having the same colour combination of cream, burgundy and gold – as that of the plaintiffs’ Royal Stag label. The front panel depicts two thick ribbon devices having a burgundy background and gold borders, upon which the trade mark Royal Champ is represented in cream colour in bold capital letters, in the same font and manner as the Royal Stag mark.

Justice Navin Chawla, in his recent order, held that the Gwalior Distilleries was clearly intending to deceive the unwary consumer and to ride on the reputation and goodwill of the plaintiff. The court noted that Gwalior Distilleries Private Ltd was selling its product as ‘Royal Champ’ which confused the unwary consumers with the name ‘Royal Stag’. The court also observed that the label of the defendant is a “colourable and slavish” imitation of the plaintiffs’ Royal Stag label and also amounts to copyright infringement under Section 51 read with Section 55 of the Copyright Act.

Accordingly, the court decreed the defendant to pay to the plaintiff a sum of Rs 20 lakh as damages and costs of the suit.

[AUSTIN NICHOLS & CO INC & ANR v. GWALIOR DISTILLERIES PRIVATE LTD CS(OS) 250/2010]

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