Australia-based Unilever Australasia on Tuesday moved the Supreme Court seeking a stay on the proceedings of a trademark violation case filed against it in a Bangalore court.
Mumbai-based Shingar Cosmetics is fighting a case since October last, alleging infringement of its trademark ?Instinct? by Unilever. The foreign firm has sought a stay on the ground that it cannot be sued in India for trademark infringement as it does not manufacture, sell or transact its business here.
Besides, it has sought court?s interference to decide whether the rights conferred to the registered owner of a trademark in India were country-specific or whether the Indian courts can assume jurisdiction against a foreign company which does not actually have any business or office in the country. A bench headed by Justice Altamas Kabir posted the matter for hearing on April 19.
Senior counsel Ashok Desai and Sameer Parekh submitted before the court that the Australian company does not manufacture, sell, market or transact its business and thus cannot be sued in India and that too, without taking permission of the court as contemplated in Section 20 of the CrPC.
Unilever, which manufactures various products including the ?AXE? range of products, said it sells its products to various companies including Hindustan Lever in Australia itself and its products are only imported in India.
No part of the business occurs within the territorial jurisdiction of Indian courts and the foreign firm does not have any presence or any business, offices or properties in India, the petition stated.
According to the petition, the AXE range of deodorants are sold in as many as 18 variants with various descriptors in India including the word ?INXTINCT?.
The English word instinct is the most common descriptor in cosmetics industry across the world and the same was incapable of registration under the Trade Marks Act 1999 as it lacks distinctiveness, Parekh stated.
Besides, he said the place of suing should have been either its principal place of business or that of Shingar.
According to Unilever, the courts below have erred in not appreciating that no cause of action had arisen with the jurisdiction of Bangalore courts and thus the trial court had no jurisdiction to try the suit.
??the rights conferred by registration of trademark are confined to India alone and a foreign party cannot be sued for enforcing the rights under the Trade Mark Act, registration under the Act being country-specific,? the foreign firm stated.
While the civil court had vacated its ex parte order that restrained Unilever from manufacturing, selling or advertising its products under ?INXTINCT? mark in October last year, the Karnataka High Court had dismissed its civil revision petition in March this year and had asked it to file its written statement within a month.