With the brand Amul, the country saw the birth of a dairy product which was going to change India. It was with the Amul moppet, the little girl who made homes in the heart of millions and millions of Indians, through the relishing taste and texture that Amul gave to its every consumer.
Not an easy task but today it has been almost 65years since the establishment of Gujarat Cooperative Milk Marketing Federation (GCMMF) which is India’s largest food products marketing organization which markets its dairy products under the brand name Amul since 1946.
Today, the question is whether Amul or Nestle is ‘The Oyster’ of the Indian dairy industry. Both are growing to capitalize, and stretch to leave a mark as great gigantic dairy companies, who not only have been striving hard but seem to be splendidly successful in keeping pace with the galloping progress in the global dairy industry.
Lately Gujarat Cooperative Milk Marketing Federation (GCMMF) which is country’s biggest dairy firm with a turnover of Rs 9,800 crore., not only alleges nestle of being selling fortified cheese under the brand Amul A+ since 1 year, and high calcium milk labeled as Amul Calci + for almost 4 years but also that of trademark infringement by Nestle when the multinational came up with a new brand of milk and yogurt called Nestle a+ on 1st December 2011.
Though clear inference is drawn by Nestle that the dairy multinational purchased the brand from Delhi Company called Ajit Singh Om Prakash Ltd in August which is engaged in food products trading and as per the company’s filling at the trademark office. “A PLUS” has been in use since 1987. It filed for trademark in 1999 and received the certificate in 2006.
As reported the sale agreement document has mentioned that the intellectual property rights for “A PLUS” are given only for milk and milk products to Nestle. Ajit Singh held the rights to use the trademark “A PLUS” and “A PLUS with Device” for edible oils and other products except milk and milk products under clauses 29 of the Trade Marks Act. The Rs 10,000 crore Amul brand has an 85% share in the country’s butter market and 70% share in the cheese market. Nestle is better known for products like Nescafe coffee and Maggi instant noodles.
Both the cooperative giants owning the trademarks which are deceptively similar lock them down in a trademark battle. This battle is not just for the ownership of a trademark which is a brand worth Re.1/- only, but the marketing rights and the business may be at stake.
The test for deciding the deceptive similarity of the competing mark in an action for infringement of Trademark or in an action of passing off is similar.
In the case PARLE PRODUCTS (P) LTD. Vs. J.P. & CO. MYSORE, it was held that “the test for determination of a trade mark to be deceptively similar to the registered one would be, if a person would be likely to accept the another one, if offered, instead of original one”.
The factors to be taken in consideration for the deceptive similarity are as follows:
- The nature of the marks i.e. whether coined/ descriptive/ non-descriptive/ surname/ geographical origin/ device/ letters/ numerals/ combination of two or more of the above
- The degree of resemblance between the competing marks and essential features thereof i.e. phonetic, visual or structural.
- The nature of the goods in respect of which they are used or likely to be used as trademarks.
- The similarity of the nature, character, and purpose of the goods of the rival traders.
- The class of purchasers who are likely to buy the goods bearing the marks.
- The mode of purchase of the goods or of placing orders for the goods.
Any other surrounding circumstances
In the present case the Trademark used by Nestle fulfils the criteria as laid down in the above case in order to a mark to be of deceptively similar in character. The use of the similar trademark Amul a+ by Nestle not even infringes the trademark of GCMMF (ie. Amul A+) but also leads to commercial dishonesty.