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The plaintiffs submitted that Defendant 1 is dishonestly using an identical and deceptively similar trade mark as that of the plaintiffs’, so that any ordinary consumer would be misled to believe that Defendant 1’s products are that of the plaintiffs or associated with or emanating from the plaintiffs.
“An average consumer with an imperfect recollection is likely to be deceived into thinking that the plaintiff has opened a new ‘SOCIAL’ outlet in Vadodara, Gujarat where the defendant is operating its outlet.”
The term “Aashiqui” does not describe the general category of goods or services (films) but instead functions as a distinctive brand identifier for the Aashiqui Franchise.
Section 47 of the Trade Marks Act, 1999 provides for taking a registered trade mark off the Register on account of non-use of the trade mark.
It was said that when a mark as distinctive and well-known as “Adidas” is copied, it can dilute the mark’s distinctiveness and harm the brand’s reputation, irrespective of the differences in the product categories.
The brand ‘Peter England’ was introduced in 1997 and later acquired by Aditya Birla Fashion and Retail Ltd. in 2000.
Since the rival trade marks were visually and phonetically identical, it would cause confusion and deception amongst the general public, doctors, and chemists.
The Delhi High Court said that while trade mark registration offers statutory benefits, it does not obliterate prior common law rights established through actual use and accrued goodwill in the market.
The hearing in the present matter was concluded on 15-02-2023 and the Senior Examiner of Trade Marks passed the impugned order on 14-02-2024, i.e. after a period of one year.
The Court opined that had the plaintiff disclosed the facts, about the knowledge of the date of usage of the logo, then the ad interim relief without notice would not have been granted to the plaintiff. Even otherwise, the Court opined that the plaintiff had suppressed the material facts.
The Court stated that physicians, doctors, and chemists are knowledgeable in their field, however they are not infallible, and in respect of medicinal and pharmaceutical products there cannot be any leeway for mistakes, since even a possibility of a mistake may prove fatal to the consumers.
The Court stated that mere addition of prefix and/or suffix to the impugned mark is inconsequential, thus, it rejected Dubond Products India’s contention that the use of the word “HYDROBUILD” before “LW” in the impugned marks is sufficient to distinguish from the marks of Pidilite Industries.
Notwithstanding the abolition of IPAB and the power of rectification reverting to the High Court, a Trial Judge would have to stay in its hands once it is apprised of pendency of a rectification.
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“Even after the termination of their contractual relationship and the explicit withdrawal of rights to use the plaintiff’s trademarks and logos, defendants have unauthorisedly continued use of their deceptively similar marks.”
“What is striking, in this case, is that Respondent 1 has produced no document whatsoever which would prove their use since 1957, as claimed.”
To render an impression of authenticity, Defendant 1 is also circulating a forged Guarantee Agreement that mentions plaintiffs’ trade marks, trade name, registered address, Corporate Identity Number, and signatures of their founder.
Defendant earlier using the mark “Ashirvad by Aliaxis” and adopting “ARTISTRY” only after plaintiff’s “ARTIZE” mark gained repute, prima facie, shows that there is a conscious attempt to ride on plaintiff’s reputation.
After considering the inventory of the infringing products and the conduct of defendants, the Court decreed the suit in favour of plaintiff for Rs 50 lakh on account of damages and Rs 2 lakh are awarded as costs.
Plaintiff, Wow Momo made out prima facie case for grant of ex parte ad interim injunction and balance of convenience also lies in favour of plaintiff.