24. The decisions on which Mr. Tulzapurkar relies do not, in my view, sufficiently support him in this case. There was a very similar defence Hem Corporation Pvt. Ltd. v ITC Ltd.36 The products in question were incense sticks. The defendant argued that the word ‘MADHUR’ was used descriptively, to denote the sweet fragrance of the product, in conjunction with its trade mark ‘MANGALDEEP’. In paragraphs 24 and 25, Vazifdar, J., held that even if the Defendant genuinely intended to use the mark descriptively, it would still constitute infringement if such use was likely to be taken as a trade mark as per sections 29(1) and 2(zb)(ii) of the Act. The test is whether the expression is used to distinguish rather than describe. That is undoubtedly correct, and wellestablished,37 but I do not see how it carries Garware’s case further. In Hem Corporation , the Court found the use not to be purely descriptive, and therefore granted relief. Further, there was an admission, albeit unwitting, that the expression in question, MADHUR, was used as a ‘sub-brand’, i.e., as a trade mark (or, more accurately, a trade mark within a trade mark).
