Healthcare and pharmaceutical major GlaxoSmithKline Consumer Healthcare Ltd has moved the Delhi High Court to protect its intellectual proprietary rights in its registered trade mark Viva. The court has issued summons to M/s Donisi International and has asked it to appear before the court by January 31, 2005. It has been restrained the defendant from marketing its sanitary napkins under trademark Viva till further hearing.
While issuing notice on violation of GlaxoSmithKline’s proprietary rights in Viva, Justice Vikramjit Sen observed that while the plaintiff had registered its trademark Viva under class V of the Trade and Merchandise Marks Act 1958 (now Trade Marks Act, 1999), the defendant was also manufacturing and marketing sanitary napkins under the same name and the same product category. Besides, both the products were available in the same shops and The judge observed: “I am satisfied that prima facie case has been disclosed by the plaintiff and balance of convenience is in favour of the plaintiff.... And it has spent vast sums of money on publicity. It is the registration holder of the trademark.
GlaxoSmithKline, an ISO 9002 certified and a subsidiary of UK-based M/s Horlicks Ltd, occupies more than 60% share in the domestic healthcare food beverage industry and manufactures popular malted food drinks under the mark Boost, Viva and Maltova in India.
The matter came before the court as Donisi International started marketing and distributing sanitary napkins under the mark Viva.
Counsel Manmohan Singh on behalf of GlaxoSmithKline argued that by virtue of trade mark registrations for Viva for more than three decades, the petitioner had the exclusive right to use the mark Viva and prevent third parties from using identical or deceptively similar mark in relation to goods or services.
While Viva touched a sales figure of Rs 26 crore and Rs 24.5 crore in 2002 and 2003 respectively, it has croseed Rs 12 crore mark till June 2004, he said.
It may be noted that Petitioner had acquired the marks Viva and Maltova from M/s Jagatjit Industries along with goodwill for Rs 86 crore in 2000. Mr Singh further contended that the company has made huge investments in promoting its Viva brand and had acquired substantial goodwill and reputation in the country and abroad. “Thus the mark Viva has acquired a distinctive connotation as indicative of petitioner’s product. Besides, Viva is not a dictionary word and is, therefore, inherently distinctive. Thus, the company is entitled to protection against its misappropriation for goods or services that are cognate or allied to those of GlaxoSmithKline,” he said.