Karnataka High Court
M/S Jallan Enterprises vs M/S Sarathi International Inc on 25 March, 2026
Author: Ravi V Hosmani
Bench: Ravi V Hosmani
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF MARCH, 2026
BEFORE
THE HON'BLE MR. JUSTICE RAVI V HOSMANI
MISCELLANEOUS FIRST APPEAL NO.5183 OF 2025
C/W
MISCELLANEOUS FIRST APPEAL NO.5220 OF 2025
BETWEEN:
M/s. JALLAN ENTERPRISES,
A SOLE PROPRIETORSHIP,
HAVING ITS OFFICE AT 1102
KRISHNA TOWER, SECTOR 35 E /
PLOT NO.4, KHARGHAR,
NAVI MUMBAI, RAIGAD,
MAHARASHTRA-410 210.
REP. BY ITS PROPRIETOR
SHIVAM JALLAN.
...APPELLANT (COMMON)
[BY SRI SIVARAMAKRISHNAN M. SIVSANKARAN, ADV]
AND:
M/s. SARATHI INTERNATIONAL INC.,
A PARTNERSHIP FIRM, INCORPORATED BY
CHANDRASHEKAR
PARTNERSHIP DEED DATED 29 DECEMBER
LAXMAN
KATTIMANI 2008, HAVING ITS REGISTERED OFFICE AT
Digitally signed by
CHANDRASHEKAR LAXMAN
NO.459/30, 30TH CROSS, 4TH BLOCK,
KATTIMANI
Location: High Court of
Karnataka, Dharwad Bench
Date: 2026.03.26 04:58:05
JAYANAGAR, BANGALORE-560 011
AND AT 13, 3-D MAIN, 1ST PHASE,
+0000
J.P. NAGAR, BANGALORE-560 078.
REP. BY PARTNER
SRI SAPTHAGIRI S. BOGGARAM.
...RESPONDENT (COMMON)
[BY SMT.PRIYA V., ADVOCATE]
THIS MFA NO.5183/2025 IS FILED U/O 43 RULE 1(r) OF CPC
1908, AGAINST THE ORDER DATED 11.04.2025 PASSED ON I.A.NO.2
IN O.S.NO.3911/2024 ON THE FILE OF THE XVIII ADDITIONAL CITY
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CIVIL JUDGE AND SESSIONS JUEDGE, BENGALURU (CCH-10),
ALLOWING THE I.A.NO.2 FILED UNDER ORDER 39 RULE 1 AND 2
R/W SECTION 151 OF CPC & ETC.
THIS MFA NO.5220/2025 IS FILED U/O 43 RULE 1(R) OF CPC.,
AGAINST THE ORDER DATED 11.04.2025 PASSED ON I.A.NO.1 IN
O.S.NO.3911/2024 ON THE FILE OF THE XVIII ADDITIONAL CITY
CIVIL JUDGE AND SESSIONS JUEDGE, BENGALURU SCCH-10,
ALLOWING THE I.A.NO.1 FILED UNDER ORDER 39 RULE 1 AND 2
R/W SECTION 151 OF CPC, 1908 & ETC.
THESE APPEALS HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 12.09.2025, COMING ON FOR PRONOUNCEMENT OF
JUDGMENT THROUGH VC FROM DHARWAD BENCH, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
CORAM: HON'BLE MR. JUSTICE RAVI V HOSMANI
CAV JUDGMENT
Challenging common order dated 11.04.2025 passed by
XVIII Additional City Civil and Sessions Judge, Bengaluru (CCH-
10), on IAs.no.1 and 2 in OS no.3911/2024, this appeal is filed.
2. Sri Shivaramakrishnan M. Sivsankaran, learned
counsel for appellant submitted, appellant was defendant in
OS.no.3911/2024 filed by respondent – plaintiff seeking for
decree of permanent injunction restraining defendant from
infringement and passing off of its registered trademark
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‘TULASI’, for rendition of accounts and recovery of profits,
delivery-up and destruction of infringing materials etc.
3. In plaint, it was stated plaintiff was a partnership
firm engaged in manufacture and sale of incense sticks, cones,
burners and fragrance oils since 1945, formally constituted
under partnership deed dated 07.08.1992 and reconstituted
under partnership deed dated 20.12.2008. It was stated,
plaintiff was amongst largest incense manufacturers in Country,
operating 75,000-set integrated manufacturing unit at
Bangalore and exporting its products to more than 45 countries
worldwide. It was stated, plaintiff earned considerable goodwill
and reputation in domestic and international markets by
adhering to high quality standards and it held ISO 9001:2015,
ISO 14001:2015 and WHO-GMP certifications and also
undertook various social and charitable initiatives.
4. It was stated, plaintiff adopted trademark ‘TULASI’
in year 1950 and using it continuously, extensively and
exclusively in respect of incense sticks and allied goods. It was
stated, mark was inherently distinctive and acquired secondary
meaning due to decades of uninterrupted use, extensive sales,
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advertisement expenditure and wide promotion. And for
protection of goodwill, plaintiff had multiple registrations,
including ‘device mark’ (granted registration dated 15.11.1962)
and ‘word mark’ (granted registration dated 19.10.2005) and
Trademark registration on 21.07.1952, which were periodically
renewed, valid and subsisting. It was stated, plaintiff holds
registrations for various variants of mark and obtained
international registrations in several jurisdictions worldwide, in
addition to operating domain name “<https://tulasi.com/>” for
marketing and sale of its goods.
5. It was stated, by virtue of prior adoption, long and
continuous use, extensive promotion and multiple trademark
registrations, plaintiff had acquired exclusive proprietary rights
over mark ‘TULASI’, and same was exclusively associated with
plaintiff in trade and among consumers. It was further stated
plaintiff had taken action against earlier infringers by filing
OS.no.5927/2015, where Civil Court had recognized plaintiff as
registered proprietor of mark and restrained unauthorized use
thereof.
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6. It was stated, cause of action for present suit arose
on account of defendant’s adoption and use of mark ‘TULSI’ in
respect of identical goods, namely incense sticks under Class-3.
It was stated, impugned mark was phonetically identical and
deceptively similar to plaintiff’s registered mark, differing only
by omission of letter “a”, and same was adopted with malafide
intention to ride on goodwill and reputation of plaintiff. It was
stated, defendant’s goods bearing impugned mark were
discovered in market in December 2023, leading to confusion
among consumers, some of whom allegedly enquired whether
defendant’s products were associated with plaintiff. It was
stated, defendant was marketing impugned goods through its
website “<https://jallan.in/?s=tulsi&post type=product>”.
7. It was stated, plaintiff issued a cease-and-desist
notice dated 04.01.2024, which defendant refused in reply
dated 15.01.2024 and admitted continued use of impugned
mark, which act constituted infringement of plaintiff’s
registered trademark under Sections 27, 28 and 29 of Trade
Marks Act, 1999 (‘TMA’, for short) and also amounts to passing
off. It was stated defendant’s acts had caused confusion and
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deception in market, diluted plaintiff’s brand value, tarnished its
reputation and resulted in irreparable loss and injury.
8. It was stated, plaintiff was prior user and registered
proprietor of mark, whereas defendant’s adoption was recent
and dishonest. Therefore, plaintiff had strong prima facie case,
balance of convenience lie in its favour and irreparable harm
would be caused, if relief was not granted. It was stated, cause
of action first arose from adoption and registration of plaintiff’s
mark and subsequently in December 2023, on discovery of
defendant’s infringing goods and continued day-to-day. It was
stated, trial Court had territorial jurisdiction under Section 134
of TMA and Section 20 of Code of Civil Procedure, 1908 (‘CPC‘,
for short), as plaintiff carries on business within jurisdiction and
infringing goods are sold therein. Therefore, plaintiff filed suit.
9. Along with plaint, plaintiff had filed IAs.no.1 and 2
under Order XXXIX Rules 1 and 2 of CPC for temporary
injunction restraining defendant, assigns, agents etc. from
manufacturing, selling, marketing, offering for sale or in any
manner infringing and passing off plaintiff’s trademark ‘TULASI’
or any other mark that may be identical or deceptively similar
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to registered trademark of plaintiff and adopting assertions in
plaint sought for grant in temporary injunction.
10. In affidavit filed in support of applications, plaintiff
stated about its usage and registration of trademark/word
mark, about its business spreading across 45 countries around
world, about plaintiff having applied for or trademark
registrations in various countries, about investing time, effort
and money in earning trust as well as adopting certified
manufacturing processes. There is also assertion about having
huge turnover based on brand value and plaintiff’s products
receiving awards.
11. There is also assertion about plaintiff having been
granted an order of injunction against infringement and passing
of against some other party in OS.no.5927/2015. There is
specific assertion about defendant resorting to exploit plaintiff’s
goodwill by seeking to manufacture, distribute and sell incense
sticks under name and style of ‘TULSI’, which came to its
knowledge in December, 2023 and that same was also reflected
from defendant’s website. Plaintiff further stated that it had
caused issuance of a cease-and-desist notice to defendant on
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04.01.2024, which defendant refused in its reply dated
15.01.2024. There is further assertion that defendant’s product
being deceptively similar was likely to cause confusion in minds
of consumers and erode its profits and dilution of its brand
value alleging that it has a strong prima facie case, that
balance of convenience lie in its favour and plaintiff would
suffer irreparable loss and injury in case of denial of injunction,
it prayed for grant of temporary injunction.
12. On appearance, defendant filed written statement
and adopting same as its objections against applications for
temporary injunction denying plaint averments in toto and
stating that plaintiff’s suit was not maintainable either in law or
on facts and plaintiff has not approached Court with clean
hands and by suppressing and misrepresenting material facts.
It was stated, defendant obtained GST registration on
12.08.2022 and thereafter commenced manufacturing and
marketing of agarbattis from 01.03.2023 and also secured
MSME registration on 11.05.2023. It was stated, defendant
adopted his surname as trademark ‘JALLAN’, which was
registered under no.5974549 dated 11.06.2023, and that said
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mark was only trademark used by defendant in relation to his
products.
13. Defendant specifically denied that word ‘TULSI’ was
not used as trademark or brand name but only to describe
smell or flavor of agarbatties, that it contains tulsi essence and
bonafide/descriptive use was protected under Sections 30 and
35 of TMA. It was contented words TULSI, CAMPHOR, LOBAN,
LEMONGRARASS, LAVENDER and BOSEWELLIA appearing on
packaging only describe character and quality of products and
were not trademarks. Defendant asserted any manufacturer of
agarbatties with tulsi fragrance was entitled to use word ‘TULSI’
to describe scent and plaintiff cannot claim exclusive rights over
such descriptive usage, even assuming its alleged long standing
registration and usage of word ‘TULASI’, which was otherwise
denied.
14. Further, defendant had conducted business openly
and transparently, without copying or infringing any trademark
of plaintiff and sales invoices demonstrate continuous and
bonafide commercial activity. Defendant further denied
infringing or passing off plaintiff’s mark and asserted a
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statutory and common law right to use words to bonafide
describes character or quality of goods. Therefore, plaintiff’s
claim was untenable and sought dismissal of suit.
15. It was submitted defendant was proprietorship,
engaged in business of manufacture and sale of incense sticks
under registered trademark ‘JALLAN’ dated 11.06.2023, in
regular course of trade and commerce. It was submitted,
plaintiff had issued cease-and-desist notice to defendant on
04.01.2024, alleging that it was infringing plaintiff’s trademark
by marketing incense sticks under name ‘TULSI’. Defendant
replied on 15.01.2024 denying infringement and asserting that
‘TULSI’ was a descriptive expression referring to natural
fragrance of basil and was not used as a trademark. Despite
same, plaintiff filed suit for permanent injunction against
defendant, alleging infringement and passing off by use of word
‘TULASI’. Plaintiff also filed I.As.no.1 and 2 under Order XXXIX
Rules 1 and 2 of CPC seeking ad-interim injunction.
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16. Based on same, trial Court framed following :
POINTS
1) Whether the plaintiff has made out prima facie
case under I.A.No.1 and 2?
2) Whether balance of convenience leans in favour
of the plaintiff under I.A.no.1 and 2?
3) Whether plaintiff will be put to more hardship if
temporary injunction is not granted under
I.A.no.1 and 2?
4) What order?
17. On consideration, trial Court answered points no.1
to 3 in affirmative and point no.4 by allowing IAs.no.1 and 2
and granting injunction as prayed, disrupting defendant’s
business. Aggrieved thereby, defendant filed this appeal.
18. It was submitted, impugned order was ex facie
erroneous, contrary to settled principles of trademark law and
suffered from serious non-application of mind. It was
submitted, learned trial Judge, while professing to avoid a mini-
trial in effect conducted one by rendering findings on disputed
questions of fact and law, which could only be adjudicated after
trial. It was submitted, trial Court erred in clubbing IAs.no.1
and 2, notwithstanding fact that issues of infringement and
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passing off were distinct and governed by different legal
standards. Hence, same vitiated exercise of discretion.
19. It was contended, plaintiff does not enjoy
exclusivity over word ‘TULASI’ and plaintiff’s case pivoted on
device mark containing word ‘TULASI’. It was submitted, as per
Section 17 of TMA, registration of a composite mark does not
ipso facto confer exclusive rights over individual components
thereof, particularly when such components are descriptive or
common in trade. It was submitted, plaintiff’s trademark
registration certificate contains a disclaimer expressly stating
that registration shall give no right to exclusive use of word
‘TULASI’ and other descriptive matter. It was submitted, trial
Court failed to consider legal effect of said disclaimer, despite
its attention drawn to same under memo dated 22.02.2025 and
placing on record Trademark Registration Certificate of plaintiff.
20. It was submitted, use of word ‘TULSI’ by defendant
was purely descriptive, intended only to indicate fragrance and
characteristics of incense sticks, and not as a trademark or
source identifier. Especially so as defendant’s trademark
‘JALLAN’ was prominently displayed on packaging and ‘TULSI’
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was used in same manner as other fragrance descriptors such
as Camphor, Lavender, Lemongrass and Loban and descriptive
use protected under Section 30 (2) (a) of TMA ruled out
infringement.
21. It was submitted, impugned order proceeded on a
fundamentally erroneous legal framework. It was submitted,
trademark protection was not absolute but depended on nature
of goods and context of use. While word ‘TULASI’ may be an
arbitrary or distinctive mark in relation to incense sticks, but,
position materially changes when goods in question are tulsi-
scented incense sticks. It was submitted, display of picture of
Tulsi Pot along with Tulsi leaves and people praying before it
were sufficient to distinguish defendant’s product from that of
plaintiff. In such context, word ‘TULSI’ clearly indicated
fragrance/ingredient assuming descriptive character.
22. Relying on decision in case of Lotus Herbals Pvt.
Ltd. v. DPKA Universal Consumer Ventures Pvt. Ltd.,
reported in 2024 SCC OnLine Del 498, it was submitted,
when registered mark corresponds to an ingredient or
characteristic of goods, competitors are entitled to invoke
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statutory defence under Section 30 (2) (a) of TMA. It was
submitted, trial Court erred in adopting “prominence test,” by
focusing on size and display of word ‘TULSI’ on defendant’s
packaging. It was contended, Section 30 (2) (a) of TMA
protects use that indicates kind, quality or other characteristics
of goods and does not prescribe font size, prominence, or
display. Referring to decision in case of Marico Limited v.
Agro Tech Foods Limited, reported in 2010 SCC Online Del
3806, it was submitted, defence under Section 30 of TMA was
objective in nature and did not depend on intention, bonafides,
or alleged malafides of defendant. According to defendant, once
use indicates fragrance characteristic of goods, statutory
protection would be attracted and same cannot be defeated by
subjective considerations.
23. It was submitted, trial Court failed to correctly
apply settled principles governing grant of temporary
injunction, namely, prima facie case, balance of convenience,
irreparable injury etc. It was submitted, impugned order
virtually restrained defendant from marketing and selling its
product variant, resulting in serious commercial prejudice and
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disruption of business even when plaintiff could be adequately
compensated if it ultimately succeeds in suit. In view of same,
balance of convenience lie in favour of permitting descriptive
use pending trial and sought for allowing appeal.
24. On other hand, Smt.Priya V., learned counsel for
plaintiff supported impugned order and contended, plaintiff was
prior adopter and registered proprietor of trademark ‘TULASI’,
having used same continuously for over seven decades i.e.
since 1950 as against rather recent trademark registration of
defendant i.e. since 2023. It was submitted, plaintiff’s
trademark had acquired enormous goodwill and reputation and
registration under TMA carried presumption of its validity under
Section 31 of TMA. Relying upon decision in case of Lupin Ltd.
v. Johnson and Johnson, reported in 2014 SCC OnLine
Bom 4596, it was submitted, High Court of Bombay had held,
registration certificate was prime facie proof of trademark
ownership as per Section 31 of TMA and Court should not
lightly interfere with statutory rights of registered proprietor at
interlocutory stage. It was held, even while challenge of
registration was permissible, same could not be a ground to
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deny protection, which set exceptionally high threshold
requiring defendant to prove registration was ex-facie illegal or
fraudulent, which in any case, requires trial. She submitted, at
interlocutory stage, trial Court was not to examine validity or
strength of registration in detail and therefore, impugned order
could not be faulted.
25. It was further submitted, mark ‘TULASI’ was in
continuous use by plaintiff since 1950 and subject matter of
valid registration in Class-3. It was submitted, said ‘mark’ was
arbitrary in relation to incense sticks and therefore, adoption of
word ‘TULSI’ by defendant, in relation to same class of goods
i.e. incense sticks since 2023 was clear case of infringement
under Section 29 (2) (c) of TMA as mark was phonetically
similar and in respect of identical goods/product. She relied on
decision in case of Cadila Healthcare Ltd. v. Cadila
Pharmaceuticals Ltd., reported in (2001) 5 SCC 73 to
emphasize that phonetic similarity and likelihood of confusion
were sufficient to constitute infringement.
26. It was submitted, defendant’s mark ‘TULSI’ was
phonetically identical to plaintiff’s registered mark ‘TULASI’ and
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used in respect of identical goods, namely incense sticks, which
would squarely attract provisions of Sections 29 (2) (c) and 29
(3) of TMA and which mandate a presumption of likelihood of
confusion. She further contended, omission of letter ‘a’ from
plaintiff’s word mark would not avoid infringement.
27. It was contended, defendant’s use of word ‘TULSI’
was not descriptive but as trademark. Drawing attention to
packaging, it was submitted, word ‘TULSI’ was displayed in a
prominent and eye-catching manner, in larger font than
defendant’s trademark ‘JALLAN’, and therefore, an average
consumer with imperfect recollection would perceive ‘TULSI’ as
a brand identifier rather than mere description of fragrance,
increasing likelihood of confusion. She pointed, defendant used
english descriptors for other fragrances such as Camphor and
Lavender, but deliberately chose word “TULSI” instead of
“BASIL” to ride on goodwill of plaintiff’s trademark. In support
of said proposition, she relied on decisions in Hem
Corporation Pvt. Ltd. v. ITC Limited, reported in 2012 SCC
Online Bom 551 and Piruz Khambatta and Anr. v. Soex
India Pvt. Ltd., reported in 2011 SCC OnLine Del 5598 to
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contend that even if a word has a descriptive meaning, its use
can amount to infringement if presented in a manner that
consumers are likely to perceive it as a trademark. Further, trial
Court exercised its discretion judiciously and in view of law laid
down in Wander Ltd. and Anr. v. Antox India (P) Ltd.,
reported in 1990 SCC Online SC 490, first appellate Court
ought not to interfere merely because another view is possible.
28. It was further contended scope of interference by
first appellate Court against interlocutory order was limited,
relying on decision in Wander Ltd.‘s case (supra). Learned
counsel further relied on decision in case of Anand Prasad
Agarwalla v. Tarkeshwar Prasad, reported in (2001) 5 SCC
568, to contend that at interlocutory stage, trial Court should
not conduct mini-trial or finally adjudicate disputed questions.
Learned counsel argued that trial Court duly considered prima
facie case, balance of convenience and risk of irreparable harm
likely to be suffered and arriving at conclusion that same
favoured plaintiff given its longstanding registration and
goodwill built up, granted orders of temporary injunction as
prayed. Therefore, same did not call for interference.
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29. Learned counsel for plaintiff also relied on following
decisions:
i. Kaviraj Pandit Durga Dutt Sharma v.
Navaratna Pharmaceuticals
Laboratories, reported in 1964 SCC
OnLine SC 14;
ii. Wander Ltd. and Anr. v. Antox India (P)
Ltd., reported in 1990 SCC Online SC 490;
iii. Cadila Healthcare Ltd. v. Cadila
Pharmaceuticals Ltd., reported in (2001)
5 SCC 73;
iv. Anand Prasad Agarwalla v. Tarkeshwar
Prasad, reported in (2001) 5 SCC 568;
v. Syed Mohideen v. P Sulochana Bai,
reported in (2016) 2 SCC 683;
vi. Ellora Industries v. Banarasi Das Goela,
reported in 1979 SCC OnLine Del 198;
vii. Adiga’s Abhiruchi and Ors. v. Adiga’s
Fast Food, reported in 2007 SCC OnLine
Kar 756;
viii. Piruz Khambatta and Anr. v. Soex India
Pvt. Ltd., reported in 2011 SCC OnLine
Del 5598;
ix. Hem Corporation Pvt. Ltd. v. ITC
Limited, reported in 2012 SCC Online Bom
551;
x. Lupin Ltd. v. Johnson and Johnson,
reported in 2014 SCC OnLine Bom 4596;
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xi. Gufic (P) Ltd. v. Vasu Healthcare (P)
Ltd., reported in 2016 SCC OnLine Bom
1814;
xii. Bata India Ltd. v. Chawla Boot House,
reported in 2019 SCC OnLine Del 8147;
xiii. Anil Verma v. RK Jewellers SK Group,
reported in 2019 SCC OnLine Del 8252;
xiv. Free Elective Network (P) Ltd. v.
Matrimony.com. Ltd., reported in 2022
SCC OnLine Mad 3811; and
xv. Sun Pharmaceutical Industries Ltd. v.
Protrition Products LLP, reported in 2023
SCC OnLine Del 7467.
30. Heard learned counsel, perused impugned order
and material available on record.
31. These appeals are by defendant against
discretionary order passed by trial Court on IAs.no.1 and 2 filed
under Order XXXIX Rules 1 and 2 of CPC in a suit for
permanent and mandatory injunction restraining defendant
from infringing and passing of in violation of plaintiff’s
trademark. Main grounds urged are that impugned order was
passed without proper consideration of facts/material of case
and contentions urged and therefore perverse. Hence, common
point arising for consideration is:
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“Whether impugned order passed by trial
Court on I.As.no.1 and 2 calls for interference
on ground of being contrary to law and
perversity?”
32. At outset, it is seen, trial Court considered rival
pleadings, contentions, decisions relied and after framing
proper points for consideration arrived at its conclusions. It
noted Annexure-L Certificate no.144477 showed registration of
device mark ‘TULASI’ in respect of goods and description in
Class-3 – Agarbatties, granted to BK Annapoornamma – a
partner of M/s.Sarathi International (Partnership Firm), with
renewal on 18.07.2017 and valid till 18.07.2027. Likewise,
Annexure-M Certificate no.188079 indicated registration of
device mark ‘Tulasi Agarbathi’ in respect of goods and
description in Class-3 – Agarbatties, granted to same
person/firm, renewed and valid upto 13.12.2027. And
Annexure-P Certificate no.780870 showed registration of word
mark ‘TULASI’ issued to same person/firm in respect of incense
sticks in Class-3, renewed and valid upto 04.12.2027. It also
noted, Annexures – Q to AK depicted registration of trademark
‘TULASI’ in various other countries by plaintiff. On said basis it
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concluded, there was no dispute about plaintiff being registered
trademark holder of ‘TULASI’ as device mark as well as word
mark in respect of goods in Class-3 and using it since 1950.
33. It noted, documents produced by defendant at
Sl.nos.1 and 2 were Registration Certificates of defendant
under GST and as Industry. And document at Sl.no.3 was
Trademark Certificate no.5974549 dated 11.06.2023 for
registration of ‘JALLAN’ in respect of goods and description in
Class-3 – namely Essential Oils, Air Freshners, Agarbatti,
Dhoop, Diffuser and Aroma Oils. And document at Sl.no.4
indicated usage of trade mark ‘JALLAN’ by defendant and one of
its products used word ‘TULSI’ on its package. Thus, there was
no dispute about defendant being registered trademark holder
of ‘JALLAN’ and using it since 2023. It noted, both plaintiff and
defendant were in same business namely manufacture and sale
of incense sticks. And defendant was not disputing usage of
word ‘TULSI’ on package of one of it’s products and claimed it
to be bonafide descriptive to show it contained tulsi fragrance
or flavour protected under Sections 30 and 35 of TMA.
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34. Therefore, whether usage of word ‘TULSI’ on
package of one of defendant’s products was in descriptive
manner or prominent manner and infringes on plaintiff’s
trademark and amounts to passing off would establish triable
case.
35. On perusal of package, trial Court arrived at
conclusion that usage of word TULSI by defendant was not
descriptive, but prominent being in larger font style attracting
attention of customers and likely to confuse as if it was a
product of plaintiff, as defendant’s trademark JALLAN was
depicted in smaller size font than word TULSI. It concluded
same was with intention to attract customers of plaintiff and
therefore, defendant’s claim of protection under Sections 30
and 35 of TMA was unacceptable.
36. It clarified, confusion arose only in respect of
defendant’s product with word ‘TULSI’ on its package. It
observed, if defendant intended to use ‘TULSI’ in descriptive
manner, said word would have been in smaller font style than
its trademark. It concluded ratio laid down in Hem
Corporation‘s case (supra) would apply, that usage of mark to
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describe aroma of product would make no difference if it was
likely to be understood as a trademark and ‘intention of usage’
was not sole factor. It also referred to ratio in Piruz
Khambatta‘s case (supra), wherein High Court of Delhi held
usage of RASNA prominently in PAN RASNA could not be held to
be in descriptive manner.
37. It also considered defense that use of word ‘TULSI’
was in descriptive manner and registration granted to plaintiff
over device mark ‘TULASI’ was conditional and did not exclusive
right to use said word and excepted descriptive usage. It held,
decisions relied upon by defendant in Cadila Health Care
Ltd.; Lotus Herbals Pvt. Ltd.; Marico Ltd. cases (supra) and
Stokely Van Camp Inc. and Anr. v. Heinz India Pvt. Ltd.,
reported in 2010 SCC OnLine Del 2153, were not helpful as
defendant was not using word ‘TULSI’, in descriptive manner. It
discounted decision in case of Bhole Baba Milk Food
Industries Ltd. v. Parul Food Specialities Pvt. Ltd.,
reported in 2011 SCC OnLine Del 4422 on ground that
plaintiff herein had registration not only of device mark but also
word mark.
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38. Likewise, on reasoning that in case defendant
intended to use word TULSI in descriptive manner, it would
have used it in smaller font than its trademark and therefore
protection under Section 30 of TMA was not available to
defendant, it held decision in case of Om Prakash Gupta v.
Praveen Kumar, reported in ILR 2000 Del. 124 was not
available. On said reasoning, it held plaintiff had established
prima facie case and observing that in case of refusal of
injunction, plaintiff would suffer more, it answered points for
consideration in favour of plaintiff and granted injunctions as
sought for.
39. It is seen, trial Court noted plaintiff’s long prior use
and valid registrations as well as phonetic similarity between
plaintiff’s trademark ‘TULASI’ and word ‘TULSI’, mentioned
on defendant’s packaging and by examining packaging of rival
products rejected defendant’s contention that defendant
contends that word TULSI was used on descriptive manner in
context of tulsi-scented incense. It observed, whether
defendant succeeds in establishing its usage was purely
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descriptive within meaning of Section 30 (2) (a) of TMA would
require trial.
40. Various decisions are relied upon. In Marico
Limited‘s case (supra), it was held descriptive
words/expressions or their phonetic variations cannot be
monopolized as trademarks and bonafide descriptive use was
protected. Since “LOW ABSORB” merely described a product
characteristic, injunction was refused.
41. In Cadila Health Care Ltd.‘s case (supra), it was
held “Sugar Free” was a descriptive expression indicating a
product characteristic, and such terms cannot be monopolized
and defendant’s use of “Sugar Free” along with its own brand
“Amul” was held to be bonafide descriptive use and injunction
was refused.
42. In Stokely Van Camp Inc.‘s case (supra), it is
held common descriptive words such as “Rehydrate, Replenish,
Refuel,” which describe function or effect of a product, cannot
be monopolized as trademarks if such words are used in a
bonafide descriptive manner along with defendant’s own brand
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and such use did amount to infringement. Based on these
decisions, defendant contends, word ‘TULSI’ is descriptive of
ingredient or characteristic of product, and when used along
with defendant’s own brand, it constitutes bonafide descriptive
use and would not amount to infringement.
43. In Bhole Baba Milk Food Industries Ltd‘s case
(supra) it is held, a trader cannot monopolize common name of
deity like ‘Krishna,’ when culturally associated with product.
Court ruled, protection applies only to specific label or stylized
mark, not word itself, and defendant’s qualified mark avoided
confusion. Based on same, it is contended that ‘TULSI’, being a
culturally and religiously significant term, cannot be exclusively
monopolized by plaintiff, and defendant’s use of word along
with its distinct trademark / branding does not amount to
infringement or passing off.
44. In Om Prakash Gupta‘s case (supra), it is held
phonetic similarity and imitation of overall label/get-up can
create consumer confusion, especially where goods are
common consumer products and applying “average consumer
with imperfect recollection” test, Court granted injunction due
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to defendant’s slavish imitation of plaintiff’s mark and
packaging.
45. In Pernod Ricard India (P) Ltd. v. Karanveer
Singh Chhabra, reported in 2025 SCC OnLine SC 1701, it
was held, ‘London Pride’ was not deceptively similar to
‘Blenders Pride’, emphasizing that trademarks must be
assessed as a whole and common words like ‘Pride’ cannot be
monopolized and distinct prefixes create different commercial
impressions. Based on same, defendant contends presence of a
common word like ‘TULASI’ does not automatically give rise to
infringement if overall mark, prefix/suffix, and branding create
a distinct commercial impression, reducing likelihood of
consumer confusion.
46. In Reliance Industries Ltd. v. Reliance
Polycrete Ltd., reported in 1997 SCC OnLine Bom 786, it
was held, word “Reliance” had not acquired exclusive secondary
meaning for plaintiff across all industries and as parties
operated in different fields, Court found little likelihood of
consumer confusion and refused to grant an injunction.
Therefore, defendant contends that commonly used word like
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‘TULASI’ cannot be monopolized by one trader unless said word
had acquired exclusive secondary meaning, and if defendant
used it with its own branding, likelihood of consumer confusion
was minimal.
47. Defendant also relies on decision in Lotus Herbals
Private Limited‘s case (supra), wherein it was held word
‘Lotus’ was common descriptive term in cosmetic industry to
indicate ingredient and it’s usage was not as a trademark, and
prominent display of defendant’s trademark ’82°E’ removed
likelihood of confusion and on said basis, no infringement was
found and interim injunction was refused.
48. Distillate of above decisions is, where monopoly
over descriptive or common words is limited, even in face
of trademark registration, decisions in Marico Ltd.; Cadila
Health Care Ltd. and Stokely Van Camp Inc. cases (supra)
shield traders who use terms that describe a product’s
characteristics or ingredients (like “Low Absorb” or “Sugar
Free”) in a bonafide manner, asserting such words must
remain available for public use, while Bhole Baba Milk Food
Industries Ltd. and Pernod Ricard cases (supra), reinforce
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culturally significant or common terms (like “Krishna” or
“Pride”) cannot be exclusively claimed when distinct prefixes or
house marks are present to prevent confusion. Om Prakash
Gupta and Reliance Industries cases (supra) focus on need
to apply overall visual impression and necessity of proving
acquisition of secondary meaning test.
49. Even plaintiff relies on various decisions.
50. In Bata India Ltd.‘s case (supra), it was held,
strength of a mark depends on its position on spectrum of
distinctiveness, with suggestive and arbitrary marks receiving
higher protection. Though defendant contends that word
TULASI is of common usage and cannot attract high degree of
protection as sought, long usage of registered mark coupled
with time and money spent on earning goodwill through
promotional activities, indicated word TULASI had attained
distinctiveness entitled for protection.
51. In Anil Verma‘s case (supra), High Court of Delhi
held descriptiveness must be assessed by applying Degree of
Imagination Test and Competitors Need Test. If a term directly
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conveys quality or characteristic of goods without requiring
mental effort, it is descriptive; however if some imagination is
required and competitors have alternative means to describe
their goods, mark leans towards suggestiveness.
52. In Free Elective Network’s case (supra), while
examining whether sub-element “Jodi” in mark “Jodi365” was
descriptive or inherently distinctive, High Court of Madras noted
that trademarks fall along a spectrum from generic (with no
protection), descriptive (protection only if secondary meaning is
acquired) and suggestive to arbitrary/fanciful (attracting strong
protection). It was submitted, tests applied to determine
descriptiveness i.e. (i) dictionary meaning of term; (ii) degree
of imagination required to connect term with goods/services;
(iii) competitors’ need to use term; and (iv) extent of use by
others, would favour plaintiff as continuous long and registered
usage by plaintiff established secondary meaning.
53. In Hem Corporation and Piruz Khambatta’s
cases (supra), it was held, trademark infringement and passing
off are distinct causes of action with different evidentiary
requirements. It was held actual confusion requires to be
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proved in case of passing off; while likelihood of confusion is
sufficient in case of infringement. Court ruled that even
innocent adoption of similar mark can be restrained if it creates
confusion and mark that has acquired distinctiveness through
long use cannot be defeated by claim of descriptive use.
54. And though in Adiga’s Abhiruchi’s case (supra),
defendant contended word “Adiga” being a common community
name, its use in business could not be restrained in view of
Section 35 of TMA, it was rejected relying on decisions in
Dr.Reddy’s Laboratories Ltd v. Reddy Pharmaceuticals
Ltd., reported in 2004 SCC OnLine Del. and Bajaj
Electricals Ltd. v. Metals & Allied Products, reported in
1987 SCC OnLine Bom 225, holding mere fact that a name
was a surname or community name did not confer a right to
use it in a manner that infringes registered trademark and
usage by defendant was not bonafide.
55. In Syed Mohideen‘s case (supra), it said that
rights in a trademark arise primarily from “prior use” and not
merely from registration and rights of registered proprietor
under TMA are subject to rights of a prior user. It also
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reiterated that a passing off action protects goodwill and its
essential elements are goodwill, misrepresentation and
damages. In present case, plaintiff is admittedly, prior and
continuous user of ‘TULASI’, hence its rights prevail.
56. In Ellora Industries‘s case (supra), it is held that
tort of passing off protects commercial goodwill and reputation
of trader as a form of property. It held plaintiff must establish
that its mark acquired reputation and goodwill in market and
that law of passing off aims to prevent unfair competition
where a trader uses deceptive devices or marks to
misappropriate reputation of another trader.
57. In Gufic‘s case (supra), it was held, crucial
question was whether defendant was using word “as a
trademark or in descriptive sense”. It observed, when a word is
used prominently on packaging and product labels to identify
source of goods, it amounts to trademark use and not
descriptive use. It further held, claim of defendant that a word
is generic or common to trade must place clear evidence of
extensive market usage and mere assertions or references from
websites are insufficient.
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58. In Kaviraj Pandit‘s case (supra), it was held
passing off and infringement are distinct causes of action. While
passing off depends on deceptively similarity in overall getup
and presentation, in case of infringement, where once essential
features of registered mark are adopted and similarity is close,
visually or phonetically, differences in packaging or addition of
defendant’s name are held immaterial.
59. In Sun Pharmaceutical‘s case (supra), High Court
of Delhi held trademark infringement must be assessed by
comparing marks themselves and examining whether they are
likely to cause confusion to an average consumer with
imperfect recollection. It was held that even if packaging or
label differ, phonetic similarity between marks can still lead to
deceptive similarity, and such visual differences or ‘added
matter’ cannot defeat claim of infringement.
60. It is significant to note that one of main grounds of
challenge was based on finding of High Court of Delhi in Lotus
Herbals (Pvt.) Ltd.‘s case (supra) on ground that it was under
similar facts and circumstances and considering similar
contentions. However, it is recently reversed by Division Bench
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of Delhi High Court in Lotus Herbals (P) Ltd. v. DPKA
Universal Consumer Ventures (P) Ltd., reported in 2026
SCC OnLine Del 540, wherein Division Bench was considering
use of mark “Lotus Splash” in respect of identical cosmetic
products, where plaintiff was registered proprietor of word as
well as device mark “Lotus” and defendants had raised defence
under Section 30 (2) (a) of TMA, claiming expression as
descriptive. Said contention was examined in light of principles
laid down in Cadila Health Care Ltd. and Marico Ltd’s cases
(supra) and applying settled tests of anti-dissection, dominant
feature, overall similarity and likelihood of confusion from
perspective of an average consumer, Court came to prima facie
conclusion that expression “Lotus Splash” was being used as a
trademark/sub-mark and not merely in a descriptive sense. It
observed, Degree of Imagination and Competitors’ Need tests,
as propounded in McCarthy on Trademarks were of persuasive
value and as use of word ‘Lotus’ clearly indicated trademark
usage, than descriptive, defence under Section 30 (2) (a) of
TMA was unavailable and prima facie case of infringement was
held established, entitling protective injunction.
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61. While adjudicating applications for interim
injunction in trademark cases, findings required to be given by
trial Courts as evolved in American Cyanamid Co. v. Ethican
Ltd. [1975 (1) All ER 504] would be:
(i) Serious question to be tried/triable issue, i.e.
plaintiff must show genuine and substantial
question fit for trial, which is not frivolous,
vexatious or speculative.
(ii) Likelihood of confusion/deception, without
requiring detailed analysis of merits,
assessed on prima facie strength of case and
probability of consumer confusion or
deception.
(iii) Balance of convenience, requiring Courts to
weigh inconvenience or harm that may result
to either party from grant or refusal of
injunction.
(iv) Irreparable harm: Where use of impugned
mark by defendant may lead to dilution of
plaintiff’s brand identity, loss of consumer
goodwill, or deception or public-harm which
are inherently difficult to quantify – remedy of
damages may be inadequate. In such cases,
irreparable harm is presumed.
(v) Public interest: In matters involving public
health, safety, or widely consumed goods,
courts may consider whether public interest
warrants injunctive relief to prevent
confusion or deception in marketplace.
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62. As noted above, trial Court noted rival pleadings,
contentions and material relied on by parties. It noted,
admitted usage by plaintiff of registered trademark ‘TULASI’
not only as device mark but also as word mark in respect of
incense sticks, since 1950 was for nearly seventy years; as
against usage by defendant of word ‘TULSI’ on one of its
products was since 2023, by claiming such usage was
descriptive. On comparison of package of rival products, trial
Court noted usage of word ‘TULSI’ by defendant was not
descriptive, but prominent being in larger font style attracting
attention of customers and likely to confuse even prudent man,
especially as defendant’s trademark ‘JALLAN’ was depicted in
smaller size font than word ‘TULSI’.
63. In light of same, it held defendant’s claim of
protection under Sections 30 and 35 of TMA was unacceptable
at that stage. While clarifying that confusion arose only in
respect of one of defendant’s products with word ‘TULSI’, it
concluded ratio in Hem Corporation‘s case (supra) would
apply, that usage of mark to describe aroma of product would
make no difference if it was likely to be understood as a
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trademark and intention of usage was not sole factor. Referring
to Piruz Khambatta‘s case (supra), it held prominent usage
could not be held to be in descriptive manner. It also referred
to decisions relied by defendant in Cadila Health Care Ltd.;
Lotus Herbals Pvt. Ltd.; Marico Ltd. and Stokely Van
Camp Inc. cases (supra), and concluded they would not be
helpful to defendant as it was not using word ‘TULSI’, in
descriptive manner. It discounted decision in case of Bhole
Baba Milk Food Industries‘ case (supra) on ground that
plaintiff herein had registration not only of device mark but also
word mark. And on reasoning that if defendant intended to use
word TULSI in descriptive, it would have used it in smaller font
than its trademark, it held plaintiff established prima facie case
and observing in case of refusal of injunction, plaintiff would
suffer more harm, answered remaining points in favour of
plaintiff and granted injunctions as sought for.
64. There cannot be any dispute about proposition that
while applying strength of mark test, Courts are required to
consider distinctiveness, with suggestive and arbitrary marks
receiving higher protection. And descriptiveness has to be
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assessed by applying dictionary meaning of term, degree of
imagination required to connect term with goods/services,
competitors’ need to use term and extent of use by others.
65. It is seen, trial Court has by and large adhered to
above principles while considering application for temporary
injunctions. Its conclusion is based on its observation that
plaintiff’s mark ‘TULASI’ has been in long, continuous and
exclusive use and registered. That plaintiff has earned goodwill
not only based on long and continuous use as a registered
holder of word mark as well as device mark in respect of
‘TULASI’, but also asserts to have spent time and money on
promotional activities establishing ‘TULASI’ as a brand.
Therefore, there was plain connection of word ‘TULASI’ with
incense sticks manufactured and sold by plaintiff. It noted,
there was no material to indicate word ‘TULASI’ was of common
usage in relation to incense sticks. It also noted display of word
‘TULSI’ by defendant on its package was not only in large font
style masking its trademark ‘JALLAN’, which was in significantly
smaller font and therefore prominent, rather as trademark than
as descriptor. Further, defendant is using equivalent English
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words to describe contents/flavour of its products in all but
‘Loban’ and ‘Tulsi’, without establishing their common usage by
others in trade. Even though defendant is displaying pictures of
Tulsi pot and leaves on its package, its claim on need to use
word Tulsi to describe contents/flavour would fail, apparently
on account of prominent use of word ‘TULSI’. Thus, there would
be sufficient justification for conclusion by trial Court that
‘TULASI’ functions as a source identifier than ingredient and
competitors are not dependent on this term alone for
description. Moreso, when ‘TULASI’ and ‘TULSI’ are phonetic
similar. Hence, conclusion that defendant’s use of similar mark
‘TULSI’ prima facie constitutes infringement regardless of
packaging differences, even if proof of goodwill for passing off
is limited at interlocutory stage, also cannot be contended to be
without any basis or contrary to material on record. Though
protection under Section 30 (2) (a) of TMA is urged on ground
that ‘TULASI’ denotes fragrance, underlying principle is that
statutory protection is available only for bonafide and purely
descriptive use. On analysis of various factors, trial Court held
manner of usage of word ‘TULSI’ by defendant was not
bonafide by comparing all features on packaging of rival
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products. Hence, finding about plaintiff establishing prima facia
case for protection of mark ‘TULASI’ until final adjudication,
would be justified.
66. Even contention of defendant that there were
sufficient added matters such as picture of praying before tulsi-
pot and tulsi leaves depicted on its packaging, none of which
were existing on plaintiff’s package, as per Kaviraj Pandit and
Sun Pharmaceuticals’s cases (supra), such visual differences
or ‘added matter’ cannot defeat claim of infringement.
Defendant would also not be justified in relying on Om
Prakash Gupta‘s case (supra) to contend that only in case of
slavish imitation of label, packaging and overall get-up leading
to likelihood of confusion there would be scope for granting
temporary injunction.
67. However, it requires to be clarified, though
defendant cannot succeed at interlocutory stage, it may seek to
establish its claims/contentions in trial and escape liability if it
can show that added matter was sufficient to distinguish its
goods from those of plaintiff and was sufficient to avoid
confusion in mind of average consumer. It would also appear
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appropriate to direct both parties to co-operate for early
conclusion of suit.
68. Lastly, these appeals are against orders passed by
trial Court on application for temporary injunctions filed under
Order XXXIX Rules 1 and 2 of CPC, which are discretionary in
nature and scope for interference against such orders as held
by Hon’ble Supreme Court in Mohd. Mehtab Ibrahim Khan v.
Khushnuma Ibrahim Khan, reported in 2013 (9) SCC 221,
would be limited to examining its untenability or perversity etc.
It is clarified, even if view taken by trial Court on available
material were to be one of possible views, there could be no
interference. Even in Wander Ltd.‘s case (supra), it is held
Appellate Court will not interfere with trial Court’s exercise of
discretion unless it is shown to be arbitrary, capricious,
perverse or in disregard of settled legal principles and that
appellate Court was not entitled to substitute its own view
simply because it might have reached a different conclusion. As
noted above, there are no grounds to interfere. Wherefore,
point for consideration is answered in negative. Consequently,
following:
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ORDER
Appeals are dismissed with observations as above.
Sd/-
(RAVI V HOSMANI)
JUDGEGRD
LIST NO.: 19 SL NO.: 1