1. Plaintiffs
2. To flourish in their market in
3. Since 1972, Plaintiff has been manufacturing clothing in
4. The defendant company was incorporated in the year 2012 and was engaged in marketing clothing and other products and services under the trademark 'HM' since 2011. The defendant had also registered the domain name as HM' viz. 'www.hmmegabrand.com'. Further defendant also enlarged its ambit by marketing its products on the E-commerce portal such as
Plaintiffs brought the current claim for infringement of trademark and passing off, as well as an application for interim relief, after being aggrieved by the Defendants actions. The adjudication on the application for interim relief is covered by this ruling.
Below is the Representation of the trademarks of Both the parties:
CONTENTIONS:
1. The Defendants contended that initially, Mr.
2. Again Defendant contended that Plaintiffs has no stores in
3. Over again Defendant made their contention with respect to the Alphabets used in its Trademark and stated that the same alphabets had been used by numerous manufacturers as their trade name or trade mark and Plaintiff has not used their mark '
4. Further Plaintiff contented that we are the first user in the world to use the mark '
The Court Granted Relief In The Favour Of The Plaintiff By Considering The Following Observations:
a) With respect to the Contention No. 1, that the Defendants adopted the trademark 'HM Megabrand' by considering the initials of their name does not qualify the test of distinctiveness as a mere glance on both the mark of the Plaintiff and Defendant can evidently reveal the similarity between them and the chances of causing confusion in the public at large. Further with respect to the non-use of the trademark '
b) With respect to Contention No. 2, Court nullifies the contention made by the Defendants with respect to the jurisdiction of the court as the said suit does not lie under Section 142 (2)3 of the Trademark Act, 1999.
After considering the above-stated observations, the Hon'ble
Takeaway
By drawing interference from the order of the Court, it is well-settled principle that the "Priority in adoption and use prevails over priority in Registration" i.e. In this case the Hon'ble
Footnotes
1. Removal from register and imposition of limitations on ground of non-use.
2. Registration to be prima facie evidence of validity
3. The last preceding sub-section does not apply if the registered proprietor of the trademark, or a registered user acting in pursuance of sub-section (1) of section 52 with due diligence commences and prosecutes an action against the person threatened for infringement of the trademark.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
Jyoti Lakhoria
S&A Law Offices
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