In Shubham Plywood, Rajesh Chheda, Proprietor (Plaintiff) v Shubham Plywood Park P.K. Loohda (Jain), Proprietor (Defendant), the Plaintiff alleged the Defendant of using their registered mark "SHUBHAM" in "SHUBHAM PLYWOOD" and "SHUBHAM PLYWOOD PARK".
It was observed that the Plaintiff's trademark "SHUBHAM" was registered along with the symbol of swastika at the right side and the word "PLYWOOD" was not there. As such, the averment that the registered trademark is "SHUBHAM PLYWOOD" was not correct. Further, the Plaintiff was unable to place material on record to substantiate the case except photographs of the shop name "SHUBHAM PLYWOOD" and one visiting card. The Plaintiff's contention was only against the particular Defendant on the ground that they conducted their businesses in the same area and therefore, the suit and Motion for interim relief was restricted to that area only.
The defendants resisted the allegations on various grounds and averred that since 2001-2001 they were conducting their business under the name and style of "SHUBHAM SANITARY & HARDWARE" and as the business also contained the business of plywood, they adopted the name of "SHUBHAM PLYWOOD PARK". They contended that there was no intention on their part to use or mis-use the name of the Plaintiff's alleged name "SHUBHAM". Further, the word "SHUBHAM" was in any case a common word. They also stated that they were neither using the logo "SHUBHAM" with a swastika mark nor selling plywood under the Plaintiff's trademark. They stated that in fact they conducted their business of plywood of different variety and names like "VALLEY"; "HARSH GOLD".
The Bombay High Court held, that merely adopting the name of a shop "SHUBHAM" by putting the word "SHUBHAM" is not sufficient to grant interim relief as prayed by the Plaintiff's in the particular case. Further, the Court stated that there was nothing to show that the Defendant's were selling the product/plywood under the trademark "SHUBHAM" with the swastika symbol as that of the Plaintiff's . In fact, the Defendants were selling or doing similar business of selling plywood of other band. The Court said that there cannot be an order preventing the Defendants from dealing with the plywood of other brands.
With regard to the effect of descriptive, generic and household words, the Court referred to the case of Plus Inc. v. Consim Info Private Limited and Network Solution Inc, where it was held that the words "India" and "Property" in the Plaintiff's domain name were generic and descriptive and therefore could not be protected as trademark.
In I.T.C. Ltd v G.T.C. Industries Ltd. and Ors, a Division Bench of the Bombay High Court had observed that laudatory, descriptive and commonly used words cannot be registered under the Trade Marks Act.
Injunction was refused in Asian Paints Limited v Home Solutions Retail (India) Limited by the Bombay High Court holding that the expression "HOME SOLUTIONS" could not claim exclusivity on claims of becoming inherently distinctive of any single person.
Thus, on these abovementioned grounds , the Court dismissed the Notice of Motion.
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