Kerala Court: In a suit for perpetual injunction and realisation of Rs 1 crore in damages, the Principal Commercial Judge, Thiruvanthapuram, Mariam Salomi, J*, opined that the impugned mark ‘MILNNA’ is a blatant copy of the prior registered mark of the plaintiff, i.e., ‘MILMA’, and the defendant is unjustly enriching at the cost of the plaintiff. Therefore, the Court granted perpetual injunction in favour of the plaintiff restraining the defendant from marketing, offering for sale, advertising for sale and selling any milk or milk products or allied products using the impugned mark which is deceptively similar to the plaintiff’s registered trade mark ‘MILMA’.
Background
The plaintiff in the present case is Kerala Cooperative Milk Marketing Federation Ltd. which is popularly known by its flagship brand name ‘Milma’. Incorporated in 1980, Milma is one of the most successfully run and profitable cooperatives in Kerala. Milma is engaged in the business of manufacturing and marketing of milk and various other dairy products including curd, butter, clarified butter, cheese, ice-creams, deserts, milk-based sweets and chocolates, and other milk and fruit-based foods and beverages. Milma is also engaged in channelling the marketable surplus milk from rural areas to the urban deficit areas and is currently the front-runner in the supply of milk and milk products in Kerala.
The defendant in the present case is also engaged in the business of processing, packaging and marketing of milk under the name ‘MILNNA’. It is alleged that he has imitated the unique packaging design and colour combination used by the plaintiff for his products thereby infringing the plaintiff’s registered trade mark.
The plaintiff became aware of this infringement in September 2021 when the plaintiff’s Assistant Marketing Officer purchased the defendant’s products and informed the plaintiff of the illegal marketing of milk and milk products by the defendant in various districts of Kerala.
Accordingly, the present suit was instituted seeking a perpetual injunction restraining the defendant from using the plaintiff’s trade mark and damages to the tune of Rs 1 crore with future interest at the rate of 14.5 per cent.
Arguments and Contentions
The plaintiffs contended that with extensive and continuous usage of the word mark ‘MILMA’ for over 4 decades the plaintiffs have garnered a formidable market reputation. They are not only the principal producers and suppliers of milk in Kerala but also are a household name in the dairy industry.
It was further averred that the word ‘MILMA’ is the honest, genuine creation of the plaintiff, invented by taking the first three letters of the word ‘Milk’ and first two letters of the word ‘Marketing’. Additionally, the font, stylization, design and packaging are all unique to the plaintiff’s products and have a considerable recall value in the minds of the consumers.
It was the contention of the plaintiff that the defendant has adopted the impugned mark with the mala fide intent of misleading the consumers and members of the trade. The impugned mark is visually and phonetically deceptively similar to the plaintiff’s mark. The packaging on defendant’s products is of a similar style and colour scheme as that of the plaintiff’s products. Additionally, the word ‘Milnna’ is written in the same font as ‘Milma’, and in such a way that the double ‘n’ looks like an ‘m’.
The plaintiff further contended that the use of such deceptively similar packaging is bound to create confusion in the minds of an ordinary consumer with imperfect recollection and would lead them to believe that the defendant’s product originates from the same source as that of the plaintiff’s. This would lead to assumptions about the higher quality associated with the products of the plaintiff sold under their trade mark which would cause undue hardship, loss of reputation and loss of business to the plaintiff.
Decision
The Court opined that the impugned mark ‘MILNNA’ is a clear replication of the registered trade mark ‘MILMA’ of the plaintiff. The defendant was trying to unjustly enrich himself by profiting off the goodwill and reputation earned by the plaintiff.
Furthermore, the Court noted the absence of any representation by the defendant and stated that,
“The defendant did not attempt to disprove the case of the plaintiff, and it was not even challenged by the defendant. The non-appearance of the defendant shows that he is not opposing the claim of the plaintiff.”
In light of the aforementioned facts and contentions, and in absence of any representation from the defendants, the Court granted the relief of perpetual prohibitory injunction restraining the defendant and his agents from marketing, offering for sale, advertising for sale and selling any milk or milk products or allied products using the packaging which is deceptively similar to the registered trade mark of the plaintiff. The defendant was also directed to pay Rs 1 crore with interest at the rate of 6 per cent per annum from the date of decree till date of realisation, along with costs of suit as damages.
[Kerala Cooperative Milk Marketing Federation Ltd. v. Jose George, CS No. 169 of 2022, decided on 21-12-2024]
*Judgement authored by: Principal Commercial Judge Mariam Salomi
Advocates who appeared in this case :
For the Plaintiffs: V. Ajakumar, Sidharth A. Menon, Thejan Raj, P. Ravikumar, Jishnu Nair, Bharath V. Gopal, Indrajith I., Advocates
