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There is sufficient material on record to show that the petitioner is openly using the subject device mark in the context of its goods in the public domain and the Registrar completely ignored these documents while passing the impugned order.
Plaintiffs submitted that being the ex-franchisee, Defendant 1 was clearly aware of the ownership and notoriety of the ‘MOTI MAHAL’, ‘MOTI MAHAL DELUX TANDOORI TRAIL’, ‘TANDOORI TRAIL’ and their formative marks as well as the goodwill and reputation enjoyed by the plaintiffs related to the said trade marks.
“Petitioner has established that that it was the prior registered proprietor and prior user of the mark ‘GANESH’ and its other formative marks since 1936. The adoption and use of the mark ‘GANESH HARA MATAR’ by Respondent 1, is likely to create confusion in the market.”
The trade mark/label mark ‘Girnar’ surpasses the scope of merely encompassing products/services sold or rendered under the said trade mark and the recognition, reputation, and goodwill of plaintiff-Girnar Food & Beverages Pvt. Ltd. in its trade mark extended beyond any specific class of goods or services.
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.
The Trade Mark Registry allowed the Form TM-24 Applications of the Electronica Hitech Machines Tools Private Limited for bringing on record their name as the subsequent proprietor. Electronica India Limited challenged the said purported order.
“When consumers encounter different products with similar branding in the same retail context, the risk of assuming a common source or affiliation increases.”
“Section 47 of Trade Marks Act, 1999 serves to protect the integrity of the trade mark register by ensuring that registered marks that are not actively used in commerce are removed.”
“Commonly used words, or a non-distinctive combination of commonly used words, cannot be monopolised by any one person, so as to disentitle the rest of the world to the use thereof.”
“A party can only seek permission from a Court to reserve its rights to urge a challenge at a later point of time. For that, such rights must be in existence in praesenti, when the plea is made, or should be foreseeable as arising in the future.”
“The mark “NEW BALANCE” is a unique combination of two distinctive words i.e., “New” and “Balance” which have no connection, allusion, or description of the products of the services offered by plaintiff and the logo is also quite distinctive.”
“The confusion is exacerbated by the look and feel of the defendants’ website which has, obviously, deliberately and intentionally, been made to copy the plaintiffs’ website.”
“One cannot forget that these are ayurvedic preparations and not allopathic medicines or scheduled drugs for which, doctors’ prescriptions are required. These are over the counter preparations, which are often brought by patients without prescription.”
“In the case of pharmaceutical, cosmetics, health and related wellness products a higher standard would be required to be laid down in view of the damage that such products can cause to the consumers.”
“This Court is not inclined to stay the impugned trade mark registration for the mark ‘SCHEZWAN CHUTNEY’. Moreover, the issue of jurisdiction of this Court would have to be considered first.”
“If an ad interim injunction is not granted in the present case it will cause irreparable loss to the plaintiff, as the defendants’ packaging is deceptively similar to that of the plaintiff’s, which causes confusion to the customers.”
“Where the marks in question pertain to food items, or eateries where food items are dispensed and served, a somewhat higher degree of care and caution is expected to be observed.”
“With the expansion of the internet, and access to goods and services that may originate from some distant site, a litigant is free to file an infringement, or passing off, suit, before any Court within whose jurisdiction use of the impugned mark takes place.”
“To hold that a customer would be confused, because the word ‘XPERT’ forms the second part of the second word of the impugned mark, would be consigning reality to oblivion.”
“The Appellate Court while hearing an appeal against an interim order ought not to disturb the prima facie findings, but it can substitute its own discretion when it is found that the Trial Court has exercised the jurisdiction in ignorance of settled principles of law.”