Aman Engineering Works Vs Registrar of Trademarks

Judgement date:04.11.2022

IPD Civil Revision :CM M IPD No. 5 of 2021

Name of Court: High Court of Delhi

Name of Hon'ble Justice: Navin Chawla H.J.

Case Title: Aman Engineering Works Vs Registrar of Trademarks 

The subject matter Civil Revision Petition was filed against Order dated 07.01.2020 passed by the

Senior Examiner of Trade Marks , Delhi in TM-M review Petition in relation to Trademark application

under No. 631248 for the Trademark RITE KRANTI where by the said review petition was allowed.

The fact of the case was that the Respondent No.2 filed review petition on the ground that

though Examination Report has been received, however no hearing notice was received.

Because of the same , the Respondent No.2 could not attend the hearing , resulting in

abandonment of the subject matter Trademark.

It was this order of abandonment, which was allowed by the Respondent No.1 in the review 

petition filed by the Respondent No.2 beyond the prescribed period.

The Hon'ble High Court of Delhi was pleased to set aside the order passed by the Registrar of

Trademark by observing that Section 131 of Trade Marks 1999 can not be invoked to extend

the time limit of one month prescribed for filing the review petition.

Section 127(c) of the Trade Marks Act 1999 and Rule 119 of Trade Marks Rule prescribed

one month of time, which time has been held to be mandatory by the Hon'ble High Court Delhi.

As in the present case, the review petition was filed after inordinate delay, the allowance of the

review petition by the Respondent No.2 was held to be wrong and accordingly set aside.

Ajay Amitabh Suman, [IP ADJUTOR]

IPR Advocate, Hon'ble High Court of Delhi.

ajayamitabh7@gmail.com, 9990389539

D/1027/2002

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Note: Information is shared in the public interest. It should not be taken as a substitute for legal advice as it may contain errors of understanding and presentation, including clerical errors.

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Visage Beauty and Healthcare Vs Registrar of Trademarks

Judgement date:03.11.2022

IPD Trademark Appeal :C.A.(COMM.IPD-TM) 65 of 2022

Name of Court: High Court of Delhi

Name of Hon'ble Justice: Prathiba M Singh H.J.

Case Title:Visage Beauty and Healthcare Vs Registrar of Trademarks

 

The subject matter Appeal was filed by the Appellant under Section 91 of the Trade Marks Act, 1999

challenging the order dated 27.10.2020  passed by the Trade Marks Registry where by the trademark

application of the Appellant  GLOW GETTER in relation to cosmetics, beauty care products, skin

care products, hair care products  has been rejected under Section 9(1)(b) of the Trade marks Act,

1999 , on the ground that  said mark consists of words that may be used in trade to designate 

the kind, quality of goods etc.

However, the Hon'ble High Court of Delhi was pleased to set aside the subject matter order on

the ground that the word ‘GLOW’ be a word which may be used by various third parties in respect of

cosmetics. However, the combination GLOW-GLITTER as a composite mark cannot be rejected

in Sections 9 and 11 of the same does not directly describe the kind, quality etc of  products

concerned.

 

Ajay Amitabh Suman, [IP ADJUTOR]

IPR Advocate, Hon'ble High Court of Delhi.

ajayamitabh7@gmail.com, 9990389539

D/1027/2002

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Note: Information is shared in the public interest. It should not be taken as a substitute for legal advice as it may contain errors of understanding and presentation, including clerical errors.

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Jindal Industries Vs Registrar of Trade Marks

Judgement date:03.11.2022

IPD Trademark Appeal :C.A.(COMM.IPD-TM) 134 of 2021 

Name of Court: High Court of Delhi

Name of Hon'ble Justice: Prathiba M Singh H.J.

Case Title: Jindal Industries Vs Registrar of Trade Marks

The subject matter Appeal was filed by the Appellant under  Section 91 of the Trade Marks Act, 1999 challenging the order dated 17th September, 2019 passed by the Trade Marks Registry where by the trademark application of the Appellant  JINDAL within the outline of India has been rejected.

The Registrar of Trademarks has rejected the by the trademark application of the Appellant  JINDAL

within the outline of India on the ground that the subject matter trademark application was non

distinctive and that the same was also prohibited under the provisions of the Emblems and Names

(Prevention of Improper Use) Act, 1950.

However, the Hon'ble High Court of Delhi was pleased to set aside the subject matter order on

the ground that in the previous orders as cited by the Appellant, the Hon'ble High Court of Delhi

has already observed that trademark JINDAL within the outline of India was not prohibited under

the provisions of the Emblems and Names (Prevention of Improper Use) Act, 1950.

Ajay Amitabh Suman, [IP ADJUTOR]

IPR Advocate, Hon'ble High Court of Delhi.

ajayamitabh7@gmail.com, 9990389539

D/1027/2002

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Note: Information is shared in the public interest. It should not be taken as a substitute for legal advice as it may contain errors of understanding and presentation, including clerical errors.

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Elsevier Ltd. Vs Alexandra Elbkakyan

Judgement date:03.11.2022

Suit No. CS Comm No. 540 of 2020

Name of Court: High Court of Delhi

Name of Hon'ble Justice: Prathiba M Singh H.J.

Case Title: Elsevier Ltd. Vs Alexandra Elbkakyan

The subject matter application under order 6 Rule 17 CPC was filed by the Defendant where by the

same sought to withdraw the admission made by the Defendant that the same does not dispute the

ownership of plaintiff in the subject matter copyright.

The Defendant has admitted in the written statement the ownership of plaintiff in subject

matter copyright. Now by virtue of subject matter application under Order 6 Rule 17 CPC,

the same sought to withdraw the admission made to that effect.

However the Hon'ble High Court of Delhi was pleased to reject this application of the Defendant

under Order 6 Rule 17 CPC on the ground that by virtue of application under Order 6 Rule 17

CPC, the admission made in the written statement can not be withdrawn.

Ajay Amitabh Suman, [IP ADJUTOR]

IPR Advocate, Hon'ble High Court of Delhi.

ajayamitabh7@gmail.com, 9990389539

D/1027/2002

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Note: Information is shared in the public interest. It should not be taken as a substitute for legal advice as it may contain errors of understanding and presentation, including clerical errors.

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Sotkon SP SLU Vs Western Imagery

Judgement date:31.10.2022

Suit No. CS Comm No. 484 of 2022 

Name of Court: High Court of Delhi

Name of Hon'ble Justice: Prathiba M Singh H.J.

Case Title: Sotkon SP SLU Vs Western Imagery

The subject matter Suit was filed by the Plaintiff seeking the relief of permanent injunction against the Defendant from infringing Plaintiff's  Indian Patent No. 329620 titled as 'Subsurface System for the Collection of Refuse’. 

Vide order dated 05.10.2022 , interim injunction order dated 05.10.2022, the Hon'ble High Court of

Delhi was pleased to retrain the defendants’, their proprietors, partners etc. from infringing the

plaintiff’s registered patent IN 329620. Defendants were also restrained from using the photographs,

illustrations from the plaintiff’s brochure and the technical specifications of the products that amount

to infringement of plaintiff’s copyright. 

Even after passing of the ex parte injunction order the Defendant kept on supplying impugned

product, hence the subject matter contempt petition was filed.

The Defendant pleaded that they were supplying the subject matter products only as per the

Government tender. However, the Hon'ble High Court of Delhi was pleased to held the

Defendant guilty of contempt , rejecting this argument of the Defendant and further cost

of Rupees two Crores was imposed upon them.

Ajay Amitabh Suman, [IP ADJUTOR]

IPR Advocate, Hon'ble High Court of Delhi.

ajayamitabh7@gmail.com, 9990389539

D/1027/2002

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Note: Information is shared in the public interest. It should not be taken as a substitute for legal advice as it may contain errors of understanding and presentation, including clerical errors.

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Geetanjali Studio Private Limited and another Vs Rahul Mamtani

Judgment date:31.10.2022

Suit No. CS Comm No.539 of 2021 

Name of Court: High Court of Delhi

Name of Hon'ble Justice: Prathiba M Singh H.J.

Case Title: Geetanjali Studio Private Limited and another Vs Rahul Mamtani 

 

Plaintiff's Trademark: GEETANJALI 

Plaintiff's business and Services:salon, beauty parlor specializing in hair dressing, styling and make-up services.

Defendant's  Trademark: GEETANJALI 

Defendant's business: Saloon and Beauty Parlour

Injunction was granted in favor of the Plaintiff and against the Defendant as Defendant ,

being ex licensee of Plaintiff was wrongly using Plaintiff's Trademark even after termination

of the license agreement.

Ajay Amitabh Suman, [IP ADJUTOR]

IPR Advocate, Hon'ble High Court of Delhi.

ajayamitabh7@gmail.com, 9990389539

D/1027/2002

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Note: Information is shared in the public interest. It should not be taken as a substitute for legal advice as it may contain errors of understanding and presentation, including clerical errors.

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Louis Vuitton Malletier Vs Future Times Technology India Private Limited and Ors

Judgment date:03.11.2022

Suit No. CS Comm No. 222 of 2022 

Name of Court: High Court of Delhi

Name of Hon'ble Justice: Prathiba M Singh H.J.

Case Title: Louis Vuitton Malletier  Vs Future Times Technology India Private Limited and Ors

Suit has already been decreed vide Order dated 02.08.2022. The Plaintiff has given up the relief pertaining to Damages. However the bill of costs to the tune of Rs. 32,29,416/- was filed by the Plaintiff. In view of the above, cost of Rupees 20,00,000/- was awarded in favor of the Plaintiff and against the Defendant.

Ajay Amitabh Suman, [IP ADJUTOR]

IPR Advocate, Hon'ble High Court of Delhi.

ajayamitabh7@gmail.com, 9990389539

D/1027/2002

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Note: Information is shared in the public interest. It should not be taken as a substitute for legal advice as it may contain errors of understanding and presentation, including clerical errors.

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Ultra Tech Cement Limited and another Vs Ultra Plus Cement Pvt. Ltd. and Ors

Judgment date:04.11.2022

Suit No. CS Comm No. 755 of 2022 

Name of Court: High Court of Delhi

Name of Hon'ble Justice: Navin Chawla H.J.

Case Title: Ultra Tech Cement Limited and another Vs Ultra Plus Cement Pvt. Ltd. and Ors

Plaintiff's Trademark: ULTRA TECH 

Plaintiff's business and Services: Manufacturing, Marketing and Sale of Cement and allied Products.

Plaintiff's user: Since 2003

Plaintiff's Trademark has been declared as Well Known Trademark.

Defendant's  Trademark: Ultra Plus

Defendant's business: Cement and allied Services 

Defendant's claimed user: 2008

 

Injunction was granted in favor of the Plaintiff and against the Defendant on the following grounds.

i. Plaintiff has established goodwill and reputation in relation to Ultra formative trademark.

ii.Both the Trademarks of parties are deceptively similar.

iii.The Court decided issue of territorial jurisdiction in favor of the Plaintiff as averments made in the plaint was found to be sufficient enough confer jurisdiction.

 iv. The Court also rejected reliance of Defendant on registration in favor of Shree Balaji Trading as mere presence of such registration is no proof of evidence.

Ajay Amitabh Suman, [IP ADJUTOR]

IPR Advocate, Hon'ble High Court of Delhi.

ajayamitabh7@gmail.com, 9990389539

D/1027/2002

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Note: Information is shared in the public interest. It should not be taken as a substitute for legal advice as it may contain errors of understanding and presentation, including clerical errors.

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Frankfinn Aviation Services Pvt. Ltd. Vs Tata Sia Airlines Ltd.

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Judgement date:28.10.2022
Suit No. CS Comm No. 54 of 2022
Name of Court: High Court of Delhi
Name of Hon'ble Justice: Jyoti Singh H.J.
Case Title: Frankfinn Aviation Services Pvt. Ltd. Vs Tata Sia Airlines Ltd.

Plaintiff's Trademark: FLY HIGH
Plaintiff's business and Services: imparting training in hospitality, aviation, travel management and customer service
Plaintiff's user: Since 2004
Defendant's Trademark: FLY HIGHER with VISTARA
Defendant's business and Services. Operating a full Airline services.
Defendant's claimed user: 2018

Though Plaintiff was holding registration for the Trademark FLY HIGH , the Hon'ble High Court of Delhi was pleased to vacate the injunction granted in favour of the Defendant and against the Plaintiff on the following grounds:

1.Plaintiff's Trademark FLY HIGH was highly descriptive and laudatory in relation to the goods and services, the Plaintiff was dealing with.

2.The teem of the Defendant FLYING HIGHER was used in conjunction with its Well Known Trademark VISTARA.

3.The Defendant was using the term FLYING HIGHER not in a Trademark significance but as a descriptor.

4. Trademark FLY HIGH/FLYING HIGHER has been filed in the name of various parties in the records of Trademarks Registry.

5.Trademark FLY HIGH/FLYING HIGHER is common to Trade and it has been used by various parties.

6.Plaintiff suppressed this fact that it has disclaimed HIGH word in the Trademark FLY HIGH.

7.Competing business, services and Trade Channel of the Plaintiff and the Defendant are Different.

8. The Defendant does not deal with the classes in which the Plaintiff holds registration , i.e. Class 16 and 41.

9.The Plaintiff does not hold registration in the class 12 and 39 in relation to goods and business, the Defendant deals with.

10.It can not be said that the Defendant is guilty of misrepresentation.

11.The use of term FLYING HIGHER does not amount to be use in a manner which render it as a Trademark use.

Ajay Amitabh Suman, IPR Advocate, Hon'ble High Court of Delhi.
ajayamitabh7@gmail.com, 9990389539
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Note: Information is shared in the public interest. It should not be taken as a substitute for legal advice as it may contain errors of understanding and presentation, including clerical errors. While I exercise every possible precaution, the aggrieved person can message me so I can remove that part of the post.

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Mohd Ershad Sole Proprietor Ek Agencies Vs Registrar of Copyright and Ors

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Judgement date:07.09.2022
Copyright Cancellation No.
Name of Court: Delhi High Court
Name of Hon'ble Justice: Prathiba M Singh, H.J.
Case Title: Mohd Ershad Sole Proprietor Ek Agencies Vs Registrar of Copyright and Ors

Petitioner's Registered Copyright: HIGHGRON LABEL
Respondent's Registered Copyright: ASLI KESRI CHAI

Petitioner is the prior registered Proprietor of the HIGHGRON LABEL Copyright with yellow back ground colour combination. The Respondent obtained ASLI KESRI CHAI with yellow back ground colour combination. In both the artistic labels, the colouring of both the packaging is identical, the device of woman plucking tea leaves is identical, the manner

of presentation of the words, logo and devices are also identical. Accordingly the impugned copyright registration granted in favour of the Respondent was allowed. However the Respondent No.1 was granted liberty to use ASLI KESRI CHAI Trademark with any other Label which is not similar to that of the Petitioner.

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

#IP_Adjutor #Legal #Law #Legalblog #Trademark_infringement #Ipr_update #Copyright_infringement #Ipr_news #Design_infringement #Patent_infringement #IPR #Intellectual_property_right #Iplaw #Ip_update #Legal_update
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Siddhant Icecreams LLP and Ors Vs Amit Pahlani and Ors

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CASE LAW DISCUSSED:
Judgement date:19.10.2022
Suit No. CS Comm No. 735 of 2022
Name of Court: High Court of Delhi
Name of Hon'ble Justice: Jyoti Singh, H.J.
Case Title: Siddhant Icecreams LLP and Ors Vs Amit Pahlani and Ors

Plaintiff's Family Trademark: NATURAL
Plaintiff's Product: Ice Cream, Ice Cream Shakes
Defendant's Trademark: NATURAL
Defendant's Acronymn: NIC [Natural Ice Cream]
Defendant's domain Name:
www.niceicecreams.com and www.nicnaturalicecreams.com
Meta Tag: NATURAL
Defendant's product: Ice Cream
Defendant: Ex distributor of Plaintiff
Ex Parte Injunction granted

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

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Kewal Ashokbhai Vasoya and Another Vs Suarabhkati Goods Pvt. Ltd.

Judgement date:07.10.2022
Commercial Appeal No. INTERIM APPLICATION (L) NO. 28715 OF 2022
IN COMMERCIAL IP SUIT (L) NO. 28710 OF 2022
Name of Court: High Court of Judicature at Mumbai
Name of Hon'ble Justice: GS Patel & Gauri Godse, JJ
Case Title: Kewal Ashokbhai Vasoya and Another Vs Suarabhkati Goods Pvt. Ltd.

The adversarial system used by the Indian judiciary is the same one that is used in practically all nations with common law. This adversarial system's need that natural justice principles be upheld while passing any injunctions is one of its most crucial features. This means that the party who would be affected by any orders must be heard by the court before any orders are made.

However, in cases involving intellectual property rights, exceptions have been made. A system for granting ex parte injunctions in cases involving intellectual property rights has been developed by the court. In cases involving trademark infringement, an Order of ex parte injunction is crucial.

This does not imply that the party adversely affected by the ex parte injunction order does not have any protection in place, though. According to Order 39 Rule 4 CPC, such a party has the opportunity to request the cancellation of the ex parte injunctive order on many grounds, including suppression.

What transpires, then, when a party directly approaches the Appellate Court in opposition to such an ex parte injunction order, rather than filing an application pursuant to Order 39 Rule 4 CPC, based on fresh evidence that was not presented to the Trial Court at the time the ex parte injunction order was issued?

Would it be appropriate for the Appellate Court to consider and grant the defendant such relief based on fresh information and documents  that was not presented to the Trial Court when it issued the ex parte injunction? Or would it be more appropriate to instruct the Single judge to make decision based on the basis of fresh materials and information  that the defendant has entered into the record?

Vide Judgement dated 07.10.2022 passed in the  Commercial Appeal No. INTERIM APPLICATION (L) NO. 28715 OF 2022
IN COMMERCIAL IP SUIT (L) NO. 28710 OF 2022 , the  High Court of Judicature at Mumbai, Comprising of  Hon'ble Justices Shri GS Patel and Shri  Gauri Godse, in the case titled as  Kewal Ashokbhai Vasoya and Another Vs Suarabhkati Goods Pvt. Ltd. have dealt with such issue.

The respondent was the plaintiff, while the appellant was the defendant. The Plaintiff filed the subject matter lawsuit against the Defendant in an effort to get a permanent injunction for trademark infringement and passing off. Ex parte injunctions were granted in this case by the single  judge in favour of the plaintiff and against the defendant.

Being displeased, the subject appeal was filed against the Hon'ble Single Judge's decision in the case for trademark infringement and passing off filed by the respondent and against the appellant, which resulted in the grant of an ex-parte injunction in favour of the respondent and against the appellant.

The Respondent allegedly omitted crucial information from the Plaint in order to secure the ex-parte injunction, which was the principal accusation made by the Appellants. In order to support its argument for suppression, the appellant also presented additional evidence before the Hob'ble Division Bench for record.

The Single Judge did not have an occasion to deal with these documents. The ex parte injunction order may always be vacated by the Appellant by approaching the Single Judge and submitting an application in accordance with Order 39 Rule 4 CPC. The defendant instead made the decision to prefer an appeal against such an ex parte injunction.

The Hon'ble Court declined to grant any relief to the Appellant. The reasons assigned by the Hon'ble Division Bench are that when a defendant comes up on appeal against such a without notice order, accusing the plaintiff of suppression, falsehood or worse, what the defendant is essentially doing is making an application at a very early stage that is indistinguishable in its conceptualization from an application under Order 41 Rule 27 of the CPC for the appeal court to receive additional material directly.

The Hon'ble Division Bench further observed that what the defendant now says is that the without notice ad interim time-limited order must be vacated or set aside on material that was never placed before the Single Judge, and to which the single Judge had no opportunity to apply his or her mind.

The Hon'ble Division Bench insisted that it is not a practice that should be encouraged. It is indeed to be thoroughly deprecated. The reasons are self-evident. It is always, and we would say invariably, impermissible for an appeal court to reverse the order of a single Judge on material that was not before him or her, barring the most exceptional circumstances contemplated by the CPC.

Based on the foregoing, it is clear that when an Appellant files an Appeal against an ex-parte order of injunction, the Appellant court should not set aside the order on the basis of new material placed on record by the Appellants.

This is why the Hon'ble Division Bench refused to interfere with the ex-parte injunction order, and the Appellants were directed to argue their case before the Hon'ble Single Judge.

When an appeal is filed against an ex parte order of injunction, the defendant is only required to show the documents that were in front of the single Judge when the ex parte injunction was issued.

The Appellate Court would not encourage the practise of overturning an ex parte injunction order based on new evidence. Of course, the Defendant may seek vacation of the injunction order before the defendant in the suit proceeding.

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