FEVIKWIK vs KWIKHEAL: Legal Battle Over Trademark Infringement Ends in Favor of Respondent

Petitioner/Plaintiff: PIDILITE INDUSTRIES LTD.

Defendant: SANJAY JAIN & ANR.

In this case, the Plaintiff is a leading company in the industries of adhesives and sealants, construction, paint chemicals, art materials, industrial adhesives, and related sectors. It is headquartered in Mumbai, India. Its products are sold under well-renowned trademarks including ‘FEVIKWI', 'FEVICOL', 'FEVISTIK', 'FEVICRYL', 'FEVI BOND', 'FEVIART', 'FEVIGUM', 'FEVITITE', 'M-SEAL' and 'DR. FIXIT', etc. However, the mentioned marks share a major market in India. The Petitioner has filed suit against the Respondent under “Sections 47 and 57 of the Trade Marks Act, 1999,” to stop using the trademark “KWIKHEAL”. In fact, the Petitioner previously had filed suit (Suit no. 653/201) of infringing products/trade dress using trademark “KWIKHEAL” before the Bombay High Court, where an ad-interim injunction against the Respondent was made absolute. After the Respondent has changed their packaging and obtained the registration of trademark “KWIKHEAL”, the petitioner has filed Rectification Petition against the Respondent. In this lawsuit, Pidilite asserted several claims, but one of the essential contentions was that ‘the word 'KWIK' forms a significant part of the Plaintiff's trademark “FEVIKWIK”, accordingly, the trademark “KWIKHEAL”, used by the Defendant, is deceptive or misleading at first sight.

The court examined the whole case and decided not to rely on the Bombay High Court’s order stating that the issue was regarding packaging infringement and the same has been changed and revised. Moreover, no conclusive findings are asserted by the Petitioner in their favour till a final judgement is obtained from the Bombay High Court. 

The court placed reliance on the rule that trademarks cannot be dissected but have to be considered as a whole. The Respondent’s trademark “KWIKHEAL” is with the term POMA-EX and this has been prominently displayed on the top of “KWIKHEAL” thereby distinguishing itself from the ‘FEVI’ range of brands. In a wider view, the term or phrase that comes in mind of customers is ‘FEVI’ and therefore FEVI is dominant part, while the word KWIK is colloquial variation of the word ‘QUICK’ and allowed to the Petitioner with Disclaimer/ Limitations.

After taking into consideration full facts and implementing several principles, the Court refused and rejected the claims made by the Plaintiff and held that, even though the Petitioner has a statutory right in its registered trademark “FEVIKWIK”, it does not grant an exclusive right over part of the mark in 'KWIK' because of the express limitation imposed by the Registrar of Trademarks. Besides, the rectification petition is dismissed and the matter stands in favour of Respondent.

Author:

Santoshi Karasi - Attorney