The Delhi High Court noted that the first contention of the defendants must be rejected for three reasons; first, “Aqua” being a arbitrary mark in its application to mobile phones requires no proof of secondary meaning; second, mere filing of a search report without cogent and clear evidence of user cannot establish that the mark is common to trade; and third, as the defendants have themselves applied for registration of “Aqua”, they cannot be permitted to argue that the same is descriptive or not capable of distinguishing the goods of the plaintiffs at this juncture. Further, there is no contradiction in the pleadings of the plaintiffs in the suits. Also, it cannot be said that the plaintiffs herein have accepted the goodwill of the defendants in the mark “Aqua”. Furthermore, the intention of the plaintiffs to adopt the mark “Aqua” in respect of mobile phones clearly stands established. The documents cannot be said to denote inconsequential sales or advertising for a priority claim. Thus, they established a strong prima facie case that the plaintiffs have been using the mark since the year 2009 and have established goodwill therein. Remaining arguments were also rejected.
As such, the defendants were restrained from using the infringing trademark “Aqua” or any other deceptively similar trademark till the disposal of the suit.
24-Dec-2016 read more
The Delhi High Court noted that the trademark "MOTHER DAIRY", and the "MOTHER DAIRY (Blue Logo)" are used by the plaintiff on the packaging of its diverse range of products, promotional material. The logo/mark adopted by the defendants is clearly deceptively and confusingly similar to the logo/mark used by the plaintiff on its products and, thus, infringes the rights of the latter. Thus, a case for permanent injunction against copying or infringing of the plaintiff’s trademark and logo "Mother Dairy" with the distinctive blue and white colour combination and packaging identical or similar to that of the plaintiff has been brought home against the defendants.
As such, the suit was partly decreed in the mentioned terms in the plaintiff’s favor.
24-Dec-2016 read more
The Delhi High Court noted that it was put to the learned counsel for the plaintiffs that the instant Court intends to return the plaint for want of territorial jurisdiction under Order VII Rule 10 CPC, in response to which the counsel orally prayed that instead of the plaint being returned simplicitor under the said provision of law, he may be allowed to have recourse to Order VII Rule 10A CPC and while the plaint may be thus returned, he may be allowed to present it again before the court of District Judge at Gurgaon (in the State of Haryana) which is the forum he would choose under Section 134 of the Trade Marks Act and, for such purposes, an appropriate date may be fixed and a direction may be given for the parties to appear accordingly. Further, mere intimation by the Local Commissioner at the time of inspection carried out under an ex parte order issued at the threshold could not have been treated as due service of the defendants. Thus, the order setting the defendants ex parte was not correctly passed.
As such, the said order was recalled and vacated.
21-Dec-2016 read more
The Delhi High Court stated that visiting the premises given on a licence to the first defendant from where the work of photocopying is carried on the learned Local Commissioner who visited the premises on August 18, 2012 found apart from the offending course packs eight books photocopied back to back. There were four back to back copies of one book, three photocopies of another book, two of the third and one each of the other five. For this the instant Court permitted the plaintiffs to amend the plaint and plead said fact giving opportunity to the defendants to file written statement to the amended plaint. Further, the suit is restored for trial on the issue of fact and for which parties would be permitted to lead expert witness testimony. The learned Single Judge has dismissed the application seeking interim injunction against the defendants and simultaneously on the reasoning that no triable issue arises the suit has been dismissed. Having restored the suit and identifying the triable issue warranting evidence, the instant Court is not inclined to grant interim injunction to the plaintiffs but would direct the first defendant to maintain a record of course packs photocopied by it and supplied to the students. Every six months the statement of number of course packs photocopied and supplied shall be filed in the suit.
09-Dec-2016 read more