No restriction on using common descriptive expression for goods

A division bench of the Delhi high court last week dismissed the appeal of Marico Ltd against its rival in cooking oil market, Agro Tech Foods Ltd, over the use of expressions exclusively claimed by the former. Earlier, a single judge bench had held that no case for infringement was made out on account of the use of the expression “Low Absorb” by Agro Tech which was alleged to be deceptively similar to the registered trademarks “Lo-sorb” and “Lo-Sorb” of the Marico. He had also held that use of the expression “Low Absorb” by Agro Tech would not amount to ‘passing off’, although Marico also claimed a right in the unregistered trademark “Low Absorb”. The division bench affirmed that Marico can have no exclusive ownership rights on the trademark “Low Absorb”. The expression is quite clearly a common descriptive expression/ adjective. It was not a coined word and at best it is a combination of two popular English words which are descriptive of the nature of the product. The judgment added: “We are also of the view that it is high time that those persons who are first of the blocks in using a trademark which is a purely descriptive expression pertaining to the subject product ought to be discouraged from appropriating a descriptive expression or an expression which is more or less a descriptive expression as found in the English language for claiming the same to be an exclusive trademark and which descriptive word mark bears an indication to the products kind, quality, use or characteristic.”