LETTER TRADE MARK

                                        

      This article deals with the Trade Marks comprised of Letter. There may be cases where the Trade Marks is essentially of Letters. Letters are the most essential feature of the Trade Marks. There may be cases where Trade Mark is comprised of Single Letter. The letter Trade Mark, comprised of single letter and descriptive to trade, are considered as poor trade mark and strong evidence of user required to establish the trade mark right. While the Trade Marks, comprised of more than one letter and not descriptive in nature to goods and trade, are considered to be relatively stronger trademarks. In case the Letter Trade Mark is comprised of unique device also, it gives strong protection to Trade Mark. Here are various Judgments and case laws where the Hon’ble Courts have recognized right in Letter Trade Marks.

1. Tube Investments of India Ltd. v. Trade Industries:(1997) 6 SCC 35:-The Competing Trade Marks were TI (within 2 concentric circles) Vs TI (within a single circle)-In this case the Court has granted injunction on the letter trade mark on the ground of Visual similarity between the two marks, coupled with the fact that the Defendant is using the same trade mark in relation to goods falling within the same class, even though different from goods for which mark is registered prima facie, poses a real danger that the product of the Defendant can be passed off as a product of the Plaintiff.

2. Aktiebolaget SKF v. Rajesh Engineering Corporation:1996 PTC(16)160:- The Competing Trade Marks were SKF Vs. SKI. In this case different explanations of the Defendant for using a mark does not strengthen its case but detracts from the truthfulness of the explanation. The use of SKI by the Defendant therefore is not bona fide and is a colorable imitation of SKF. Since adoption of the mark is dishonest, any use will be of no consequence.

3.  Weiss Associates, Inc v. HRL Associates, Inc(902 F.2d 1546):- The Competing Trade Marks were TMM  Vs. TMS. In this case the Court has held that It is more difficult to remember a series of arbitrarily arranged letters than it is to remember figures. Even though the parties’ products were purchased by discriminating purchasers, there was nevertheless a likelihood of confusion at the initial stage of the purchasing process. It is submitted that in this case, the Court has given better protection to letter trade marks vis-à-vis the numeral trade marks and granted the protection.

4.         S. Mehal Singh v. M/s. M.L. Gupta & Anr :AIR 1998 Del 64: The Competing Trade Marks were ML  Vs. MLI. In this case the Court has observed that the question whether the two marks are likely to cause confusion or not is a question of first impression and it is for the Court to decide that question. (quoting AIR 1960 SC 142). While making comparison between the two competing letter trade marks the Hon’ble High Court of Delhi further observed that It is not right to take a portion of the word and say that because a portion of the word differs from the corresponding portion of the word in the other case, there is no sufficient similarity to cause confusion. The Court further put much emphasis on this fact that similarity on idea behind the competing trade marks has to be seen. The court further observed that the test of commonness of the idea between the two marks could be applied in deciding the question of similarity between them.

5.    Chemetron Corporation v. Morris Coupling and Clamp Co: 203 U.S.P.Q. 537:- The Competing Trade Marks were TT  Vs. TT. In this case the Court has observed that notwithstanding the design element of the opposite party’s mark, it is the letters “TT” that form the salient features of the mark and it is this feature that creates the commercial impression of the mark which the ordinary purchaser is likely to remember and rely upon as an indication of origin. The Court further observed that tt must be remembered that purchasers do not always have the opportunity to compare marks on a side-by-side basis and thus the tests that must be applied in determining the likelihood of confusion is not whether the marks are distinguishable when compared side-by-side but rather whether they so resemble one another as to be likely to cause confusion and this necessarily requires us to consider the fallability of memory of the average purchaser who normally retains only a general impression of trademark over a period of time.

6.    G.M. Modular Pvt. Ltd. Vs TM Marketing (India): 2007 (35) PTC 406 (Del):- The Competing Trade Marks were GM  Vs. TM:- In this case the Court has observed that At the stage of consideration of the application for interim injunction, all that has to be seen is prior use. The court further observed whether  the competing marks are not identical, test of determining deceptive similarity is the same for infringement and passing off [quoting Ramdev Food Products Limited v. Arvindbhai Rambhai Patel & Ors., 2006 (33) PTC 281 (SC). At last the Court observed Even though there are other added features in conjunction with which the competing marks GM and TM are used, a case for deceptive similarity is made out.

7.    Continental Connector Corporation Vs Continental Specialties Corporation: 492 F.Supp. 1088:- The Competing Trade Marks were CCC Vs. CSC. The Court observed that Initials are designed to be comprehended at a glance. If the number of letters is the same and there is a significant overlap in the letters used, that is generally sufficient to sustain a claim of similarity. (para 9 p.65-6).

8.    Crystal Corporation V. Manhattan Chemical Mfg. Co., Inc: 76 F.2d 506:- The Competing Trade Marks were ZBT Vs TZLB. The Court observed that It is well known that it is more difficult to remember a series of arbitrarily arranged letters combination of letters than it is to remember figures, syllables, words or phrases. The difficulty of remembering such lettered mark makes confusion between such marks when similar, more likely. The court further observed that

it unquestionably appears that the letters constitute the dominant portion of the Appellant’s mark. It is submitted that the instant case also establishes this fact the Letter Trade Marks are strong Trade Mark as the persons at large remembers the letters more than the numerals.

9.      The General Electric Co. of India (P.) Ltd Vs Pyara Singh and Ors:  AIR 1974 P&H 14:- The Competing Trade Marks were GEC Vs AEC. The Hon’ble High Court held both the letter trademarks to be similar and defendant was injuncted from passing off.

10.      MRF Limited Vs NR Faridabad Rubbers: 1998 PTC (18) 485(Del):- The Competing Trade Marks were MRF Vs NRF. The Hon’ble High Court of Delhi observed that bearing ill mind the class of purchasers of defendant's lubes, who are not expected to keep goods manufactured by the plaintiff and defendant side by side to decide which product they intend to buy, I feel that the afore noted distinguishing features, including the pre-fix of 'Swastik" logo, pointed out by learned counsel for the defendant, do not bring about any material or significant change in distinguishing the two trade marks "MRF" and "NRF", by the class of consumers, who are likely to purchase the goods concerned, particularly when phonetically they are so close. It is no doubt true that the first letters of the trade marks of the plaintiff and the defendant are different but by the remaining two common letters, a purchaser can easily be misled for phonetic similarity. There is likelihood of even the first letter 'N' being pronounced as 'M'.

11.   Mahashian Di Hatti V/s Raj Niwas, Proprietor of MHS Masalay: 2011 (46) PTC 343 (Del):- The Competing Trade Marks were MDH Vs MHS. The Hon’ble High Court of Delhi observed that the trademark being used by the Defendant is visually similar to the trademark being used by the Plaintiff. Though phonetically, there may not be much similarity in the two trademarks on account of use of the letter "S' in place of "D' and re-arrangement of the letters. The last letter in the trademark of the Plaintiff is "H', whereas it has been made second letter in the trademark of the Defendant. The last letter in the trademark of the Plaintiff is "H', whereas it is "S' in the trademark of the Defendant. However, considering the strong visual similarity, rather weak phonetic similarity, would not be of much consequence and would not permit the Defendant to use the logo being presently used by him.

                                                AJAY AMITABH SUMAN, ADVOCATE

                                                DELHI HIGH COURT