Marico Limited Vs Dabur India Limited.

DATE OF JUDGEMENT: 19.07.2022

CASE: GA No.1 of 2021 & GA No.2 of 2022 In CS No. 264 of 2021

NAME OF HON'BLE COURT: High Court of Kolkata

NAME OF HON'BLE JUDGE: The Honourable Justice Ravi Krishan Kapur

CASE TITLE: Marico Limited Vs Dabur India Limited.

The subject matter Suit seeking relief of disparagement and infringement was filed on the ground inter alia that the pictorial impact of the impugned advertisements demeans and disparages the petitioner’s product.

The Hon'ble Court grant the relief in favour of Plaintiff on the ground The impugned advertisements give an impression that the petitioner’s product is inferior and bad in impression to the respondent’s product.

This order is in line of well settled proposition of law that one can advertised its product to be best, but in this process can not say others product are bad.

Ajay Amitabh Suman, IPR Advocate

Hon'ble High Court of Delhi

ajayamitabh7@gmail.com

9990389539

Excitel Private Limited Vs The Registrar of Trademark

DATE OF JUDGEMENT: 18.07.2022

CASE: CA Comm IPD TM 5 of 2021

NAME OF HON'BLE COURT: High Court of Delhi

NAME OF HON'BLE JUDGE: The Honourable Justice Prathiba M Singh

CASE TITLE: Excitel Private Limited Vs The Registrar of Trademark

Every moment many gigabytes of information are feeded on the internet. Products are being shared , marketed through internet. It has become strong source of marketing the products too. That's why the world has seen emergence of Amzon, Indiamart , ebays etc.

By passage of time every thing changes, ways of communication and knowledge sharing mode too. Present days are days of Technology, days of internet. Advent of internet has introduced many things in life, way of marketing also.

The Judiciary has been posed with task of ease out the tension which emerges from the society. When the world has changes, then judiciary should also change its approach and so has been done in a recent case by the Hon'ble High Court of Delhi.

When on the basis of information available on the internet, if products can be marketed , then why information available on the internet , should not be considered as evidence by the court or Tribunal?

This question was addressed by the Hon'ble High Court of Delhi in Appeal bearing C.A. (COMM.IPD-TM) 5/2021, titled as Excitel Pvt. Ltd. Vs Registrar of Trademark. The Hon'ble High Court of Delhi has disposed off this Appeal vide Judgement dated 18.07.2022, where by it has recognized the value of internet extracts in a judicial proceedings.

The present Appeal was filed against order dated 28.10.2020 where application of the Petitioner namely REELTIME in relation to scientific and technological services was rejected by the Registrar of Trademark.

The Registrar of Trademark, while doing so, observed that Internet extracts do not constitute primary evidence and can only be considered as secondary evidence. Hence, the mark does not have any user. Question is this, whether the quasi judicial authorities , like Registrar of Trademarks can reject the documents downloaded from the internet in such a manner?

The Hon'ble High Court of Delhi , while setting aside the Order of Registrar of Trademarks, observed that rejecting the evidence extracted hereinabove, on the ground that it does not constitute primary evidence would be an incorrect approach inasmuch as the genuineness of the printout can be easily checked by the examiner by accessing the internet at the time of hearing.

The court further indicated that if there is any doubt in respect of printouts that have been filed by the Appellant, at best, the examiner can call for an affidavit under Section 65B of the Information Technology Act, 2000, (hereinafter “IT Act”).

Thus it is clear that internet extracts filed by a party can not be rejected only on the ground that the same do not constitute primary evidence and can only be considered as secondary evidence. Be it a judicial proceeding before a court or a quasi judicial authority, like registrar of Trademark.

There is always an option to direct a party to file requisite affidavit in support of internet extracts under Section 65 B of the Evidence Act. Thus the Hon'ble Court taken cognizance of internet extracts also. That can be considered in a judicial or quasi judicial proceeding both , provided requisite affidavit under Section 65 B of the evidence Act.

Ajay Amitabh Suman, IPR Advocate

Hon'ble High Court of Delhi

ajayamitabh7@gmail.com

9990389539

#IP_Adjutor #Law #Legal #Trademarkinfringement #Copyrightinfringement #Designinfringement #Patentinfringement #IPR #Intellectualpropertyright #Iplaw #Ipupdate #Legalupdate

Am. Dairy Queen Corp. v. W.B. Mason Co.[US DISTRICT COURT]

Am. Dairy Queen Corp. v. W.B. Mason Co.[US DISTRICT COURT]

18/CV/693 [SRN/ECW]

DISTRICT OF MINNESOTA

US DISTRICT COURT

DATE OF DECISION:14.07.2022

The Plaintiff namely Dairy Queen Corporation filed the subject matter suit on the basis of its registered trademarks for its BLIZZARD® frozen treat. The Plaintiff sought the relief of inter alia infringement and passing off.

While the Defendant namely W.B. Mason Co., Inc., was also registered trademark for its Blizzard® copy paper. The field of activity of Defendant and the Plaintiff was off course not identical. Both of the parties were holding registration for same trademark in relation to different kind of services.

The Hon'ble US Court was pleased to decline to grant any relief to the Plaintiff on the ground that thought the Trademark of the Plaintiff enjoys distinctiveness , how ever the same was unable to prove that People associate Defendants Product with that of the Plaintiff.

As Defendant's Trademark was also distinctive to the product of the Defendant itself, there was least possibility of any confusion and deception.

The Court also observed after going through the evidence lead by the parties, that the Plaintiff has failed to prove any any loss or injury which was essential to succeed in an case of infringement and dilution of trademark. This was the reason, Plaintiff was not granted the relief of injunction as prayed for.

Ajay Amitabh Suman, IPR Advocate

Hon'ble High Court of Delhi

ajayamitabh7@gmail.com

9990389539

Snapdeal Pvt.Ltd. Vs GoDaddy and Ors.

DATE OF JUDGEMENT: 13.07.2022

CASE NO:CS (COMM) 176/2021

NAME OF HON'BLE COURT: High Court of Delhi

NAME OF HON'BLE JUDGE: The Honourable Justice Prathiba M Singh

CASE TITLE: Snapdeal Pvt.Ltd. Vs GoDaddy and Ors.

This is a case where the Hon'ble High Court of Delhi has directed the DNRs to devise a mechanism in order to enable the rights holder of a trademark to fight with rogue websites.

Now question is this, what are these DNRs. DNRs are domain name registrar's which are responsible for granting domain names to a party.

Till date there is no any mechanism which can safe guard the interest of right holders.

Any body who is interested in getting a domain name registered, can get it registered after paying the necessary fee.

Its been long days, it has been felt that some effective mechanism has to be developed so that the right holder can participate in such grant of domain name process.

To some extent, the Hon'ble High Court of Delhi has tried to fill up this lacuna vide order dated 13.07.2022 passed in Suit bearing CS (COMM) 176/202 titled as Snapdeal Pvt.Ltd. Vs GoDaddy.

The Hon'ble Court has observed that the DNRs to create a mechanism by which any trademark owner who has an objection to the registration granted to any domain name, can approach the said DNR and seek cancellation/transfer of the said domain name.

Its good order especially in favour of right holders , who have to keep on filing various suits against the rogue websites.

This order will provide a way out to the right holders to participate in the process of grant of domain names by the Domain Name Registrars.

Ajay Amitabh Suman, IPR Advocate

Hon'ble High Court of Delhi

ajayamitabh7@gmail.com

9990389539.

Franco Indian Pharmaceuticals Vs Vatican Lifesciences Pvt. Ltd.

DATE OF JUDGEMENT: 12.07.2022
CASE: INTERIM APPLICATION NO. 3098 OF 2022 IN COMMERCIAL SUIT (IP) NO. 295 OF 2022
NAME OF HON'BLE COURT: High Court of Bombay
NAME OF HON'BLE JUDGE: The Honourable Justice R.I. CHAGLA
CASE TITLE: Franco Indian Pharmaceuticals Vs Vatican Lifesciences Pvt. Ltd.

Its a case where the Hon'ble High Court of Mumbai was pleased to grant an ex parte order of injunction in favour of the plaintiff after observing that adoption of the defendant was dishonest.

The Plaintiff filed the subject matter Suit on the basis of proprietary rights in the Trademark GLEAM","GLEAM-1" and "GLEAM-2 in relation to medicinal and pharmaceuticals products falling in class 05.

As the Plaintiff was registered proprietor of its trademark GLEAM","GLEAM-1" and "GLEAM-2, the contained the relief of infringement and passing off both.

The Suit was filed against user of similar Trademark V-GLIM M1, V- GLIM M2 & V-GLYME-M80 by the Defendant in relation to medicinal and pharmaceuticals products falling in class 05.

The Plaintiff became aware of Defendant's impugned product under the impugned Trademark when the same came across the listing of impugned Trademark on web site INDIAMART.

Subsequently the plaintiff's representative contacted the defendants and there after few samples of impugned product of the Defendants were delivered at WhatsApp of Plaintiff's representative.

The Court observed that adoption of impugned Trademark V-GLIM M1, V- GLIM M2 & V-GLYME-M80 by the Defendants prima facie appears to be dishonest.

The Court held that the rival marks are used in respect of pharmaceutical products and therefore stricter approach will have to be taken.

The court also observed that the ingredients of products of the Plaintiff and that of the Defendants are different and therefore disastrous consequences cannot be ruled out.

Hence there was every possibility of likelihood of confusion and association vis-a-vis use of the impugned Trademark V-GLIM M1, V- GLIM M2 & V-GLYME-M80 by the defendant.

Moreover the mark "GLEAM" of the Plaintiff is registered in Part A of the Trade Mark Register as a distinctive mark. By mere adding V prior to the Trademark V does not reduce the chance of confusion.

Another important factor for granting ex parte injunction in favour of the Plaintiff was that the Hon'ble Court observed that adoption of impugned Trade Mark by the Defendant was dishonest.

There was earlier history of litigation between the parties. At the earlier occasion, when the plaintiff filed notice of opposition against trademark of defendant, the defendant got its trademark abandoned by not filing the counter statement.

Hence the defendant was already aware of plaintiff's activity. In spite of that the impugned Trademark was dishonestly adopted by the defendant.

This was also another reason for getting the matter titled in favour of the plaintiff, besides the another reason like plaintiff being the prior adopter, prior user and prior registered proprietor of the subject matter trademark. Off course confusion and deception was another obvious reason for grating ex parte injunction in favour of the Plaintiff.

Accordingly the Hon'ble High Court of Mumbai was pleased to grant an ex parte order of injunction, there by restraining the Defendants from using the Trademark V-GLIM M1, V- GLIM M2 & V-GLYME-M80 in relation to medicinal and pharmaceuticals products falling in class 05.

Ajay Amitabh Suman, IPR Advocate
Hon'ble High Court of Delhi
ajayamitabh7@gmail.com
9990389539