in an interim injunction on April 3, 2007, the Delhi High Court stayed the sale of Amul's new sugar-free ice cream until May 3.
This came in response to a case filed by Ahmedabad-based drug and health food company, Zydus Cadila Ltd, on April 2, 2007, claiming infringement of its trademark rights of the phrase "sugar-free" in Amul's new product. Cadila also sought a compensation of Rs 25 lakh from Amul for causing damage to its reputation.
The order, incidentally, was passed ex-parte, with only the counsel for Zydus Cadila present at the time of argument. In his order, justice G S Sistani said if the injunction were not granted, Zydus Cadila would suffer irreparable loss.
Amul, the brand name of an Anand-based dairy co-operative in Gujarat managed by the Gujarat Co-operative Milk Marketing Federation Limited, had launched its Prolife Sugar Free probiotic wellness dessert on January 22, 2007. But Cadila filed a case claiming it has exclusive intellectual property rights to the phrase "sugar-free" since it has been manufacturing "Sugar Free" brand of aspartame-based artificial sweeteners since 1988.
Pratiba Singh, Cadila's advocate, said that while the company had no issues with any company marketing sugar-free products, they objected to the use of the term "Sugar Free" by Amul. She claimed that no other product used "Sugar Free" in its brand name. She pointed out that Amul's packaging laid emphasis on the term "Sugar Free" and claimed it was attempting to cash in on Zydus's brand equity.
As yet Cadila has applied for a trademark for the term "Sugar Free" but not yet received it. Trademark law does not normally allow the use of "descriptive" or "generic" marks, which consist of common words used to describe the product like tasty. Ordinarily, "Sugar Free" would fall within that category but Pratiba Singh claims in many situations, a descriptive term may derive a secondary meaning, due to its repeated association with a specific product, as in the case of Cadila's artificial sweeteners.
However, legal experts have said the use of the term 'Sugar Free' by Cadila is not sufficient to give it a secondary meaning. The term must also be synonymous with the company or its product in the mind of the common man.
Meanwhile, Amul's chief general manager R S Sodhi refused to comment till he had seen the court's order.
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