#kwalitywalls

Unilever PLC and its subsidiary Kwality Wall’s sued Royal Ice Cream for infringing the trademark “Cornetto” The case is filed before the High Court at Calcutta. Cornetto means little horn in Italy and is a branded frozen dessert cone manufactured by Unilever and sold under various international subsidiary names. It is their registered trademark. Kwality Wall’s is a frozen dessert brand owned by the India based British-Dutch consumer goods company Hindustan Unilever. The respondent was selling frozen desserts under the name of 'Kornetto” The petitioner claimed that “Kornetto” is identical similar with “Cornetto” and filed the case before the High Court at Calcutta.

The petitioners have registered their contested items under class 30 under the provisions of the Trade Marks Act, 1999. A mark shall be deemed to be deceptively similar to another mark if it so nearly resembles that other mark as to be likely to deceive or cause confusion. Under the Indian legal system, the deceptive similarity is considered as a ground for not granting the registration of the trademark to an applicant by the Registrar of Trademarks. In order to decide cases of deceptive similarity, the Court analyses the principles of phonetic and visual similarity, goodwill, reputation, a test of likelihood, etc.

In 1962, Unilever Company devised the formula of coating the inside of the ice cream cones with the mixture of sugar and chocolate to keep the same free from getting soggy. Cornetto is a chocolate cone filled with ice-cream.

The petitioners claimed that their brand “Cornetto” is a famous brand in India. It alleged that the respondent was using the impugned trademarks on the top cover/lid, covering the broad upper surface of the ice cream cone.

In July 2019, in the course of a market survey and investigation carried in Hazaribagh (Jharkhand), the petitioners came to know about the production and selling of the infringed products. Images of the ice-cream of respondent were presented before the court as evidence. The petitioners complained that the respondent with bad and dishonest intention has chosen and similar and identical trademark “Kornetto” in relation with similar goods. The petitioners claimed that the act of respondent has affected the goodwill of the business of the petitioner. Additionally, they expressed that average consumers will believe that the “Kornetto” mark belonged to the company of the petitioners and it will damage the brand value of “Cornetto”. According to the petitioners, the two impugned marks are phonetically similar.

The petitioner prayed for various interim reliefs, including ex-parte ad interim order of injunction against the respondent restraining them from infringing their products. The Court observed that the respondent’s act has infringed the mark. Further, the Court directed an Advocate as a Special Officer to visit the place of Hazaribagh where it is assumed that the infringed products are stored as inventories. Directions are given for taking police action if it is deemed necessary.