Intellectual Property Rights - Trademark

G&S - FOR EDUCATIONAL PURPOSES ONLY 1
IPR – Trade Marks Act, 1999
PVS Giridhar
Advocate

Dramatis Personae
oReasonable Man (Administrative Law)
oPerson having skill in the Art (Patent)
oInformed User (Design)
oAverage consumer of imperfect recollection ™
oAverage lawyer with 3 to 4 years experience
(Target of this Webinar)

State
LAW
Economy/Market
IP is at the Intersection

Intellectual Property
◦ Limited Monopoly
◦ Exception to the rule against monopoly
◦ Granted for a public purpose – incentive for creativity

Intellectual Property
 Trade Marks
 Copyright
 Patents
 Design
 Geographical Indications
 Semi Conductor Integrated Circuits Layout Design Act
 Plant Varieties & Farmers Rights Act
 Trade Secrets

OUT OF SYLLABUS

• Ashok Leyland vs Blue Hill Logistics https://indiankanoon.org/doc/599732/
2011 (46) PTC 511 (Mad)
•Ashok Leyland obtained Registration of TM for “Luxura” in Class 12 on 24.03.2009
(Applied for on a proposed to be used basis on 20.04.2007)
• Blue Hill launched “Luxuria” Bus Services from Chennai to Bangalore on 12.11.2010
Filed for TM registration of “Luxuria” in 2010 in Class 39 – pending

Case Study – Classification
Class 12 - Vehicles; apparatus for locomotion by land, air or water
Class 39 - Transport; packaging and storage of goods;
travel arrangement.
AL sues for infringement
G&S - FOR EDUCATIONAL PURPOSES ONLY
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Judgment – Issues
o AL’s mark pertains to goods – Class 12; BH’s mark to services – Class 39;
o AL’s mark is recent (applied in 2007 on proposed-to-be used basis); BH’s
mark is pending registration;
o Class of consumers/users/target different;
o Consumers of MV are knowledgeable and discerning – no confusion;
o Both Luxuria and Luxura are derivative of ‘luxury’ – descriptive word which is
publici juris – AL can’t have a monopoly over all variants of ‘luxury’;
o Estoppel?
o Sec.27, 28, 29 of TM Act
o Sec. 29(4) – cross-class protection

Law of Trade Marks
Trade Marks are used by manufacturers/ traders to identify their
goods and distinguish them from goods made or sold by others
Right from the period of Romans it was common for pottery to be
impressed with a mark
The industrial revolution saw an enormous growth in the use of
trade marks for advertising
Very often a trade mark is associated with quality and consumer
expectations
A trade mark should be used or intended to be used in relation to
certain goods/ services
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Law of Trade Marks
A trade mark denotes a connection in the course of trade
between a manufacturer or goods in question, and thus if the
mark is not being used there then there can be no such
connection
Another important aspect is that the mark should be distinctive,
i.e. it should be capable of distinguishing the goods and services
of one from another
This requirement of distinctiveness serves as a limitation on the
types of words being used as marks
Ownership of a trade mark gives the owner a restricted monopoly
and the owner has a proprietary right in the mark

Law of Trade Marks
Trade Mark Law has the following objectives
1. Protection of business reputation and goodwill
2. Protection of consumers from deception
By fulfilling these two broad objectives this branch of Law strikes at
the root of unfair competition

Trade Mark – Definition
Sec. 2 (1) (zb) of Trade Marks Act, 1999 defines –
"trade mark" means a mark
o capable of being represented graphically and
o which is capable of distinguishing the goods or services of one
person from those of others and
o may include shape of goods, their packaging and combination
of colours; and …
(m) "mark" includes a device, brand, heading, label, ticket,
name, signature, word, letter, numeral, shape of goods,
packaging or combination of colours or any combination thereof;

Sec. 2 (zb) – Contd.
(i) in relation to Chapter XII (other than section 107),
o a registered trade mark or
o a mark used in relation to goods or services
o for the purpose of indicating or so as to indicate
o a connection in the course of trade between the goods or services, as the case may
be, and
o some person having the right as proprietor to use the mark; and
(ii) in relation to other provisions of this Act, a mark used or proposed to be
used in relation to goods or services for the purpose of indicating or so to indicate a
connection in the course of trade between the goods or services, as the case may be, and
some person having the right, either as proprietor or by way of permitted user, to use the
mark whether with or without any indication of the identity of that person, and includes a
certification trade mark or collective mark;

Letters, Designs, Slogans

Certification Trade Mark Sec 2(1) (e)
This doesn’t indicate the trade origin, but only certifies
that goods or services on which it is applied are having
certain characteristics of the goods, e.g. ISI,
WOOLMARK, CMM LEVEL 5
Thus a certification trade mark contains certain
characters like origin, material, mode of manufacture of
goods, mode of performance of services, quality,
accuracy etc e.g. 916 Gold, Six Sigma, ISO 9000

Collective Marks Sec.2(1)(g)
Collective mark means a trade mark distinguishing goods/
services of members of association of persons (not being a
partnership), from those of others e.g. CII, FICCI, Cellular
Operators Association of India
The owner here is the association of such members
The use of the mark by members is generally governed by
the regulations framed by the association
While a collective mark indicates trade origin, a certification
trade mark indicates some character or quality of goods on
which the said mark is embedded

Well Known Trade Mark Sec 2(1) (zg)
◦means a mark which has become so
oto the substantial segment of the public
owhich uses such goods or receives such services
othat the use of such mark in relation to other goods or
services
owould be likely to be taken as indicating a connection in
the course of trade or rendering of services between
those goods or services and
oa person using the mark in relation to the first-
mentioned goods or services.

International Conventions:
o Paris Convention for the Protection of Industrial Property, 1883
o The Madrid Agreement, 1891
o The Madrid Protocol, 1989
o Nice Agreement, 1957
o Agreement on Trade Related Aspects of Intellectual Property (TRIPS), 1995
(timelines)

TRIPS
oMinimum Standards of Protection (National Treatment)
oEnforcement, including Border Measures
oDispute Settlement
oAdministered by WTO

Nice Classification (NCL),
o Established by the Nice Agreement (1957) - an international classification of
goods and services applied for the registration of marks.
o A new edition is published every five years and, since 2013, a new version of
each edition is published annually.
o 1 to 34 – Goods
o 35 to 45 – Services
https://www.wipo.int/classifications/nice/nclpub/en/fr/?basic_numbers=show&explanatory_notes=show&lan
g=en&menulang=en&mode=flat&notion=&pagination=no&version=20200101

Classification – Sec. 7
Rule 20. Classification of goods and service—
(1) Classification of goods and service for the purpose of registration of
trademark, the goods and services shall be classified as per current
edition of “the International Classification of goods and services (NICE
classification)” published by the World Intellectual Property
Organization (WIPO).
(2) The Registrar shall publish a class-wise and an alphabetical index of
such goods and services, including goods and services of Indian origin.

Class 1
Nice classification
Chemicals for use in industry, science and photography, as well as in agriculture, horticulture and
forestry; unprocessed artificial resins, unprocessed plastics; fire extinguishing and fire prevention
compositions; tempering and soldering preparations; substances for tanning animal skins and hides;
adhesives for use in industry; putties and other paste fillers; compost, manures, fertilizers; biological
preparations for use in industry and science.
Explanatory Note: Class 1 includes mainly chemical products for use in industry, science and
agriculture, including those which go to the making of products belonging to other classes.
This Class includes, in particular: -sensitized paper; -tyre repairing compositions; -salt for preserving,
other than for foodstuffs; -certain additives for use in the food industry, for example, pectin, lecithin,
enzymes and chemical preservatives; -certain ingredients for use in the manufacture of cosmetics and
pharmaceuticals, for example, vitamins, preservatives and antioxidants; -certain filtering materials, for
example, mineral substances, vegetable substances and ceramic materials in particulate form.

Class 1
Nice classification
This Class does not include, in particular:
-raw natural resins (Cl. 2), semi-processed resins (Cl. 17);
-chemical preparations for medical or veterinary purposes (Cl. 5);
-fungicides, herbicides and preparations for destroying vermin (Cl. 5);
-adhesives for stationery or household purposes (Cl. 16);
-salt for preserving foodstuffs (Cl. 30);
-straw mulch (Cl. 31).

Registration of Trade Marks – Sec.18
o Any person claiming to be the proprietor of a trade mark used or purposed to be
used by him, who is desirous of registering it, shall apply in writing to the
Registrar in the prescribed manner for the registration of his trade mark.
o Application shall be filed in the Trade Marks Registry within whose territorial
limits the principal place of business in India of the applicant or in the case of
joint applicants the principal place of business in India of the applicant whose
name is first mentioned in the application as having a place of business in India, is
situate:
o If no business in India, the application shall be filed in the Trade Marks Registry
within whose territorial limits the place mentioned in the address for service in
India as disclosed in the application, is situate.
o (4) Subject to the provisions of this Act, the Registrar may refuse the
application or may accept it absolutely or subject to such amendments,
modifications, conditions or limitations, if any, as he may think fit.
o (5) In the case of a refusal or conditional acceptance of an application, the
Registrar shall record in writing the grounds for such refusal or conditional
acceptance and the materials used by him in arriving at his decision.

Absolute grounds for refusal of registration - Sec 9
When a mark is devoid of any distinctive character, i.e when it
is not capable of distinguishing the goods/services of one
person from those of another, it cannot be registered
Sec. 9(1) (a)
Case law Jeryl Lynn Trade Mark Application, 1999 FSR 491
The registration was sought for medicinal/pharma preparation
used for mumps vaccine, the name was chosen in honour of
Jeryl from whom the original mumps virus was isolated. The
Mumps virus was also known under the same name. The
registration failed because Jeryl was only a technical name
and has become generic

Absolute grounds for Refusal - Sec.9
oIf the trade mark consists exclusively of marks/signs which
denote the kind, quality, quantity, geographical origin, values
etc, Sec 9(1) (b)
oIf the trade mark consists exclusively of marks/signs which
have become customary in the current language or in the
bonafide or established practices of trade, Sec 9(1) (c)
oBut Sec 9(1) (a), (b) and (c) come with an exception
oIf on the date before the application for registration, the trade
mark had acquired a distinctive character as a result of use
made of it, then it can be registered,
oSimilarly if the mark is a well-known mark, then also it can be
registered, e.g. Head & Shoulders, Fair & Lovely etc

Factors – Distinctiveness
The following are the factors to be considered by the Registrar in
determining whether a mark has acquired distinctiveness or not
oWhether the mark contains any descriptive elements of the goods or
services? (Arbitrariness – a virtue in TM law)
oHow intensive and geographically widespread the mark is?
oWhether the mark is having a longstanding use?
oThe amount invested in promoting the mark
oThe proportion of the relevant public which identifies, the
goods/services having the mark, as originating from a particular
company
oStatements from the chambers of commerce/industry /trade bodies

Other Grounds for Refusal
Any mark which will deceive public or cause confusion won’t be
registered, Sec 9 (2)(a)
The public might be deceived as to the nature, quality or
geographical origin of the goods or services
If the mark contains any matter likely to hurt the religious feelings
of any class or section of Indian citizens, Sec 9 (2) (b)
In England “Hallelujah Trade Mark” application, 1976 RPC 605,
was refused
If the mark comprises of scandalous or obscene matter then it
cannot be registered, Sec 9 (2) (c)
Then marks coming under the purview of Emblems & Names Act
1950 cannot be registered, Sec 9(2) (d)

Lal Babu Priyadarshi vs. Amritpal Singh, (2015)16SCC795
Appellant field an application in 1994 for the registration of the word RAMAYAN with the device
of crown in respect of agarbatties, dhoops, incense sticks and perfumes etc. He claimed user
since 1987. registration was allowed by Assistant Register. Respondent field notice of opposition
in 2001 and objections under section 9,11(a),11(b),11(e),12(1),12(3)and18(1)of the trade and
merchandise Act 1958. The Assistant Register found reliance that word RAMAYAN is capable of
distinguishing the goods of Appellant and the word RAMAYAN is not included in the list of marks
not registrable as per the directions issued by the central Government. Respondent field an
appeal to intellectual Property Appellant Board in 2004 for the cancellation of the registration of
the trade mark which was allowed by Assistant Register. The board held that Assistant Register
has erred in allowing registration of such mark registration being the name of a Holy Book of
Hindus, is prohibited Under Section 9(2) of the Trade Marks Act, 1999.

Lal Babu Priyadarshi vs. Amritpal Singh, (2015)16SCC795
Aggrieved by this order, Appellant filed SLP before the Hon’ble Supreme Court.
SC held that The word "RAMAYAN" represents the title of a book written by Maharishi
Valmiki and is considered to be a religious book of the Hindus in our country. Thus, using
exclusive name of the book "RAMAYAN", for getting it registered as a trade mark for any
commodity could not be permissible under the Act. If any other word is added as suffix or
prefix to the word "RAMAYAN" and the alphabets or design or length of the words are
same as of the word "RAMAYAN" then the word "RAMAYAN" may lose its significance as a
religious book and it may be considered for registration as a trade mark. (Para 15)
There are many holy and religious books like Quran, Bible, Guru Granth Sahib, Ramayan
etc., to name a few. The answer to the question as to whether any person can claim the
name of a holy or religious book as a trade mark for his goods or services marketed by him
is clearly 'NO' (Para 18)

Shapes as TM
Sec 9(3) essentially deals with Shape Marks
If a trade mark consists exclusively of shape of goods which
results from the nature of goods themselves then it cannot
be registered, Sec 9(3)(a), e.g. the shape of a football
cannot be registered
If the trade mark consists exclusively of shape of goods
which is required to obtain a technical result Sec 9(3)(b)
Case-law- Koninklijke Philips Electronics NV v Remington
Consumer Products Ltd. [2003] Ch 159 – “capability of
distinguishing depends upon the features of TM itself, not
on the result of its use”

Functional Shapes
Court held that the essential characteristics' of the shape
mark i.e. a three-headed rotary electric shaver, performed a
technical function and obtained a technical result
In other words the essential characteristics enabled the user
of a Philips three-rotary-headed shaver to enjoy a smooth,
safe shave.
Thus the registration of the shape mark was revoked

Shape Marks

Relative Grounds for Refusal – Sec.11 (1)
Relative grounds for refusal of registration:
A trademark which is identical to an earlier trademark
cannot be registered on similar goods/services covered by
earlier trademark, if there is a likelihood of confusion in the
minds of the public which may include a likelihood of
association with the earlier mark Sec 11(1)(a)
A trademark which is similar to an earlier trademark cannot
be registered on identical or similar goods/services covered
by earlier trademark, if there is a likelihood of confusion in
the minds of the public which may include a likelihood of
association with the earlier mark Sec 11(1)(b)

Nandhini Deluxe vs. Karnataka Co-Operative Milk Producers Federation
Ltd. (2018)9SCC183
Karnataka Cooperative Society, Respondent, started using the trademark ‘NANDINI’ for milk and milk
products from the year 1985. The Appellants, Nandhini Deluxe adopted the mark ‘NANDHINI’ in 1989
in respect of their goods. The goods of both the parties fall under same class 29 and 30 an even though
the both the parties have been using their trademark for more than 12 years, the Respondent is the
prior user. Irrespective of the goods belonging to the same classes in a broad sense, the Appellant’s
goods are different from those of the Respondent, the Appellant is dealing with fish, meat, poultry and
game, meat extracts, preserved, dried and cooked fruits and vegetables, edible oils and fats, salad
dressings, preserves etc and the Respondent is dealing only with milk and milk products. The
registration of Appellant’s mark on milk and milk products are refused by the Trademark registry, and
the Appellant has to explicitly give an affidavit, deleting the word “milk and milk products” from its
description.

Nandhini Deluxe vs. Karnataka Co-Operative Milk Producers
Federation Ltd. (2018)9SCC183
Supreme Court held that:
Marks Are Not Deceptively Similar. Firstly, the word NANDINI/ NANDHINI is a generic
word as it represents the name of Cow in Hindu Mythology. It is not an invented or
coined word. Secondly, it has been held that even though both the words are
phonetically similar, the trademark and logo adopted are completely different when
seen in totality; further the name and style of business of both parties are different
from each other since one deal in milk and milk products, the other deals in various
foodstuffs except milk and milk products. The Appellant used the word DELUXE along
with Nandhini, followed by the tagline ‘the real spice of life’, and a device of lamp,
whereas the Respondent have used simply used the word ‘NANDINI’ below the
picture of a cow encompassed in a circle. This pictorial depiction of two trademarks
was sufficient to show that there is hardly any similarity between the two marks.
The Court concluded that both the marks are not capable of causing confusion in
minds of public and are not deceptively similar. The registration of Appellant’s mark
was allowed subject to the condition of deleting ‘milk and milk products’ from their
registration.

Similar Goods?
In British Sugar v James Robertson & Sons Ltd. (1996) RPC 281,
British Sugar who had registered the trade mark “Treat” for
sauces and syrups filed an infringement case against the
defendant who was using the name “Robertson’s Toffee Treat” to
market their sweet spreads,
The court narrated the following factors, to determine whether
goods are similar or not.
Respective uses of respective goods
Respective users of respective goods
Physical nature of goods
Respective channels of trade

Similar Goods?
In case of consumer items found in super markets (self serviced),
whether they are kept in same or different shelves
Whether market research companies classify the goods as same or
different sectors
Thus in the said case the court held that syrups and sweet spread were
not similar goods

Average Consumer
of Imperfect Recollection
Normally the likelihood of confusion requires an appreciation of
the visual, phonetic or conceptual similarity of the marks based
on the overall impression given by them
Perception of the average customer is important: she perceives
the mark as a whole and doesn’t analyse its individual details
The judge has to step into the shoes of an average customer who
is reasonably well informed, circumspect and observant, but who
has an imperfect recollection of an earlier mark because very
often she doesn’t get a chance to compare the marks directly

Dissimilar Goods/Services - Sec.11 (2)
A trade mark which is identical or similar to an earlier trade mark cannot be
registered for a dissimilar goods/services
o if the earlier mark is a well-known mark, and
o the use of the second mark without due cause will take unfair advantage of the earlier
mark,
o which can be detrimental to the distinctive character of the earlier trade mark.
If this ground is being raised under opposition by an interested party (not
otherwise), the Registrar will the decide whether a Mark is well-known or not

Similar Goods/Services
Class 12 includes mainly vehicles and apparatus for the transport of
people or goods by land, air or water.
This Class includes, in particular:
-motors and engines for land vehicles;
-couplings and transmission components for land vehicles;
-air cushion vehicles;
-remote control vehicles, other than toys;
-parts of vehicles, for example, bumpers, windscreens, steering wheels,
tyres for vehicle wheels, as well as treads for vehicles.

Dissimilar Goods/Services
This Class does not include, in particular:
-railway material of metal (Cl. 6);
-motors, engines, couplings and transmission components, other than for land vehicles
(Cl. 7);
-parts of all kinds of motors and engines, for example, starters, mufflers and cylinders for
motors and engines (Cl. 7);
-rubber tracks being parts of crawlers on construction, mining, agricultural and other
heavy-duty machines (Cl. 7);
-tricycles for infants and scooters, being toys (Cl. 28);
-certain special vehicles or wheeled apparatus not for transportation purposes, for
example, self-propelled road sweeping machines (Cl. 7), fire engines (Cl. 9), tea carts (Cl.
20);
-certain parts of vehicles, for example, electric batteries, mileage recorders and radios for
vehicles (Cl. 9), lights for automobiles and bicycles (Cl. 11), automobile carpets (Cl. 27).

Similar Services
Class 45
Legal services; security services for the physical protection of tangible
property and individuals; personal and social services rendered by
others to meet the needs of individuals.
Explanatory Note
This Class includes, in particular:
o services rendered by lawyers, legal assistants, and personal advocates, to
individuals, groups of individuals, organizations and enterprises;
o investigation and surveillance services relating to the physical safety of
persons and security of tangible property;
o services provided to individuals in relation with social events, such as social
escort services, matrimonial agencies, funeral services.

Classification & Similarity
FDC Limited vs. Docsuggest Healthcare Services Pvt. Ltd., 2017(69)PTC218(Del)
The classification of goods and services under Section 7 of the Act is not the criterion
for deciding the question of similarity in goods/services. (Only for the purpose of
registration)
Reliance may be placed on K.C. Kailasam/Ramu Vedaraman's Law on Trade Marks &
Geographical Indications 1st Edition, 2003 wherein, the learned author on Page 180
has stated as under-
"Classification of goods given in the rules not the criterion
Whether or not two sets of goods or services are of the same description is not be
decided on the basis of the classification of goods and services given in the 4th
schedule to the Trade Marks Rules, 2002. The description of goods may be narrower
or wider than any of the classes according to the circumstances of the case.
As was observed by LINDLEY J., in the Australian Wine Importers Trade Mark case
[(1889) 6 RPC 311]. "If you come to look at that classification, you will find goods of
the same description, in one sense, in different classes; and you will find goods of
different description in the same class". "

Registration of Trade Marks
The following factors have to be considered by the
Registrar to determine whether a Mark is well known or not
Knowledge or recognition of the trademark in the relevant
section of public
Market share, intensity, geographic extent, duration of use
of the trade mark
Investments made to promote the trade mark
Successful enforcement of rights associated with the trade
mark

Passsing off or Copyright-Sec.11(3)
A trademark shall not be registered if its use in India is to be
prevented by
othe law of Passing off:
A trade name or logo may be unregistered but still it can
be protected under the laws of passing off.
oor by the law of Copyright:
Signs/marks used in trade may be protected by forms of IPR
other than trade marks, eg. a logo which is original may be
protected under the laws of copyright

Whole Mark – Sec.17
oRegistration of trade mark implies exclusive right to the whole mark and
not to a part of the mark
oWhen a trademark- (a) contains any part -
(i) which is not the subject of a separate application by the proprietor
for registration as a trade mark; or
(ii) which is not separately registered by the proprietor as a trade
mark; or
(b) contains any matter which is common to the trade or is otherwise of
a non-distinctive character,
the registration thereof shall not confer any exclusive right in the matter
forming only a part of the whole of the trade mark so registered.

Ultratech Cement Limited and Ors. vs Dalmia Cement Bharat Limited
2016(67)PTC314(Bom),
Case is pertaining to trade mark infringement and passing off suits in
respect of the Plaintiffs' registered trade marks bearing the word
'UltraTech' as a part thereof. The Plaintiffs complain of the use by the
Defendant of the word 'Ultra' in its trade marks as being an
infringement and also amounting to passing off.
The court held that Dalmia company can use the trademark ‘Dalmia
Ultra’ because it does not infringe the trademark of UltraTech Cement,
as Dalmia has built its own goodwill over the years and the usage of the
word ‘Ultra’ would not pose a problem to UltraTech Cement which has
not separately registered ‘Ultra’ as a trademark

Rights on Registration - Sec.28
(1) Subject to the other provisions of this Act, the registration of a
trade mark shall, if valid, give to the registered proprietor of the trade
mark the exclusive right to the use of the trade mark in relation to the
goods or services in respect of which the trade mark is registered and to
obtain relief in respect of infringement of the trade mark in the manner
provided by this Act.
(2) The exclusive right to the use of a trade mark given under sub-
section (1) shall be subject to any conditions and limitations to which
the registration is subject.
(3) Two or more owners of identical or similar marks have same
rights.

Infringement – Sec.29 (1)
If any person other than the trademark owner or permitted
user uses the mark in the course of trade
oBy affixing it to the goods or packaging
oOffering the goods for sale, marketing, stocking them for such
purposes
oImporting the goods with the said mark
oUsing the mark on business letters or advertisements, then
there will be infringement
In respect of goods/services in respect of which TM registered

Infringement – Sec.29(2)
If any person other than the trademark owner or permitted
user uses the mark in the course of trade, a mark
because of
◦ (a) its identity with the registered trade mark and the similarity of
the goods or services covered by such registered trade mark; or
◦ (b) its similarity to the registered trade mark and the identity or
similarity of the goods or services covered by such registered trade
mark; or
◦ (c) its identity with the registered trade mark and the identity of the
goods or services covered by such registered trade mark
If likelihood of confusion or association;

Infringement – Sec.29(4)
Also a mark which-
(a) is identical with or similar to the registered trade
mark; and
(b) is used in relation to goods or services which are not
similar to those for which the trade mark is registered; and
(c) the registered trade mark has a reputation in India
and the use of the mark without due cause
otakes unfair advantage of or
ois detrimental to, the distinctive character or repute of the registered
trade mark.

Infringement
If any person uses such registered trade mark
o as his trade name or part of his trade name, or name of his business concern or
part of the name, of his business concern dealing in goods or services in respect
of which the trade mark is registered - Sec. 29(5)
o uses such registered trade mark, as his trade name or part of his trade name, or
name of his business concern or part of the name, of his business concern dealing
in goods or services in respect of which the trade mark is registered –Sec.29(7)
o uses such registered trade mark in advertising, if …………. – Sec.29(8)
o Both spoken use and visual representation – Sec.29(9)

Infringement by advertisement – Sec.29(8)
If registered trade mark used in an
advertisement if it
(a) takes unfair advantage of and is contrary to
honest practices in industrial or commercial
matters; or
(b) is detrimental to its distinctive character; or
(c) is against the reputation of the trade mark.

Parle products V. J.P. & Co.
(1972)1SCC618
The Plaintiffs/Appellants were owners of registered Trade Mark “Gluco” and also a wrapper with its particular colour scheme,
general get up and entire collection of words. This wrapper is known as “Parle’s Gluco Biscuits” and is of buff Colour and depicts a
farmyard with a girl in centre earring a pail of water along with cows and hens around her in the background of a farmyard house
and trees. The plaintiffs have acquired great reputation and good will among the members of the public. The defendants started
selling and offering for sale biscuits in a wrapper which was deceptively similar to the registered Trade Mark and plaintiffs brought
infringement suit.
The Supreme Court observed in order to come to the conclusion whether one mark is deceptively similar to another, the broad and
essential features of the two are to be considered. They should not be placed side by side to find out if there are any differences in
the design and if so, whether they are of such character as to prevent one design from being mistaken for the other. It would be
enough if the impugned mark bears such an overall similarity to the registered mark as would be likely to mislead a person usually
dealing with one, to accept the other if offered to him. In this case we find that the packets are practically of the same size, the
colour scheme of the two wrappers is almost the same; the design on both though not identical bears such a close resemblance
that one can easily be mistaken for the other.

Parle products V. J.P. & Co.
(1972)1SCC618
“The essential features of both are that there is a girl with one arm raised and carrying something in
the other with a cow or cows near her and hens or chickens in the foreground. In the background there
is a farm house with a fence. The word "Glucose Biscuits" in one and "Glucose Biscuits" on the other
occupy a prominent place at the top with a good deal of similarity between the two writings. Anyone
in our opinion who has a look at one of the packets to-day may easily mistake the other if shown on
another day as being the same article which he had seen before. If one was not careful enough to note
the peculiar features of the wrapper on the plaintiffs' goods, he might easily mistake the defendants'
wrapper for the plaintiffs' if shown to him some time after he had seen the plaintiffs'. After all, an
ordinary purchaser is not gifted with the powers of observation of a Sherlock Holmes. We have
therefore no doubt that the defendants' wrapper is deceptively similar to the plaintiffs' which was
registered.” (Para 9)

No infringement of unregistered trade mark –
Sec.27
(1) No person shall be entitled to institute any proceeding to
prevent, or to recover damages for, the infringement of an
unregistered trade mark.
(2) Nothing in this Act shall be deemed to affect rights of
action against any person for passing off goods or services
as the goods of another person or as services provided by
another person, or the remedies in respect thereof.

Health Care Ltd. vs. Cadila Pharmaceuticals Ltd. (2001)5SCC73
In an action for passing off on the basis of unregistered trade mark generally for deciding the question of deceptive
similarity the following factors to be considered:
a) The nature of the marks i.e. whether the marks are word marks or label marks or composite marks, i.e. both words
and label works.
b) The degree of resemblance between the marks, phonetically similar and hence similar in idea.
c) The nature of the goods in respect of which they are used as trade marks.
d) The similarity in the nature, character and performance of the goods of the rival traders.
e) The class of purchasers who are likely to buy the goods bearing the marks they require, on their education and
intelligence and a degree of care they are likely to exercise in purchasing and/or using the goods.

Satyam Infoway Ltd. v. Siffynet Solutions (2004) 6 SCC 145
SIFY mark not registered. Defendant pleaded that they were into
computer hardware and no passing off, but website claimed ‘network
solutions’.
Enumerated three elements for a successful passing off action:
(1) Goodwill owned by a trader,
(2) Misrepresentation and
(3) Damage to goodwill.

N.R. Dongre Vs. Whirlpool Corporation
1996 ( 16 ) PTC 476 ( Del )
In the instant case, the question was whether the question was whether
an action for passing off could be maintained against the registered
proprietor of a Trade Mark. It was held that:
Registration of a trade mark does not provide a defence to the
proceedings for passing off as under Section 27(2) of the Act a prior
user of a trade mark can maintain an action for passing off against any
subsequent user of an identical trade mark including a registered user
thereof. (para 13)

N.R. Dongre Vs. Whirlpool Corporation
1996 ( 16 ) PTC 476 ( Del )
“The concept and principle on which passing off action is grounded is that a man is not
to sell his own goods under the pretence that they are the goods of another man. A
trader needs protection of his right of prior user of a trade mark as the benefit of the
name and reputation earned by him cannot be taken advantage of by another trader by
copying the mark and getting it registered before he could get the same registered in his
favour. We see no reason why a registered owner of a trade mark should be allowed to
deceive purchasers into the belief that they are getting the goods of another while they
would be buying the goods of the former which they never intended to do. In an action
for passing off if should not matter whether misrepresentation or deception has
proceeded from a registered or an unregistered user of a trade mark. He cannot
represent his own goods as the goods of some body else.(Para 41)”

Nexmoo Solutions (India) Private Limited Vs. M/s.Nexmo Inc.,
2018 (3)CTC 23
.
While the date of commencement of Plaintiff's website is 7.11.2005, the Defendant's website was commenced only in
2010. Therefore, the Plaintiff, undoubtedly, is a prior user. In other words 'nexmoo' is a prior user qua 'nexmo’. One other
aspect which acquires significance is the Defendant's predecessor-in-title i.e., Russian entity, though said to have
acquired domain name in 2004, did not have any presence in India. This, according to me, is very crucial, more so as this
position is not disputed. Therefore, it is very clear that 'nexmo' had no presence whatsoever in India till 2010. (para 11)
Classical Trinity upheld.

Daimler Benz Aktiengesellschaft & Anr v. Hybo Hindustan [AIR 1994 Del
2369]
Well known marks
oIn this case, the Plaintiff was a manufacturer of Mercedes Benz
cars, and the Defendant was using the mark BENZ for selling its
undergarments.
oThe Court in deciding the case acknowledged the logo of the
plaintiff as a well-known trademark and hence restrained the
Defendant from using the impugned mark by stating that there
was no valid reason as to why the defendant would adopt the
name “Benz”, which is associated with one of the finest
engineered cars in the world and has a trans-border reputation
and goodwill.

No infringement – Sec.30
oNothing in section 29 shall be construed as preventing the use of a
registered trade mark by any person for the purposes of identifying
goods or services as those of the proprietor provided the use-
(a) is in accordance with honest practices in industrial or
commercial matters, and
(b) is not such as to take unfair advantage of or be detrimental
to the distinctive character or repute of the trade mark.
◦ If the use indicates the kind, quality, quantity, intended
purpose, value, geographical origin, the time of production of
goods or of rendering of services or other characteristics of
goods or services;

oIf a trade mark is registered subject to any conditions or
limitations, the use of the trade mark in goods or services
exported or use in any other circumstances, to which, having
regard to those conditions or limitations, the registration does
not extend;
othe use by a person of a trade mark-
(i) if the goods were sold in bulk or proprietor has at any
time expressly or impliedly consented to the use of the trade
mark; or
(ii) in relation to services to which the proprietor of such
mark or of a registered user has applied the mark, where the use
of the mark is to indicate, in accordance with the fact, that those
services have been performed by the proprietor or a registered
user of the mark;

o the use of a trade mark by a person in relation to goods adapted to
form part of, or to be accessory to, other goods or services in relation to
which the trade mark has been used …, if the use of the trade mark is
reasonably necessary in order to indicate that the goods or services are
so adapted, and the use of the trade mark does not indicate a
connection in the course of trade between any person and the goods or
services;
oWhere the goods bearing a registered trade mark are lawfully acquired
by a person, the sale of the goods in the market or otherwise dealing in
those goods by that person or by a person claiming under or through
him

Groundless threats of legal proceedings – Sec.142
o Where a person, by means of circulars, advertisements or otherwise,
threatens a person with an action or proceeding for infringement of a trade
mark which is registered, or alleged by the first-mentioned person to be
registered, or with some other like proceeding, a person aggrieved may,
bring a suit for a declaration to the effect that the threats are unjustifiable,
and an injunction against the continuance of the threats and may recover
such damages (if any) as he has sustained, unless the first-mentioned person
satisfies the court that the trade mark is registered and that the acts in
respect of which the proceedings were threatened, constitute, or, if done,
would constitute, an infringement of the trade mark.
o Due Diligence
o Not against advocate or trade mark attorney
o Only in District Court

No infringement
oPrior Use (Sec.34)
oUse of own name, address, description of
goods/services (Sec.35)

Assignment – Sec.38
oNotwithstanding anything in any other law to the contrary, a registered
trade mark shall, subject to the provisions of this Chapter, be assignable
and transmissible, whether with or without the goodwill of the business
concerned and in respect either of all the goods or services in respect of
which the trade mark is registered or of some only of those goods or
services.
oUnregistered TM too can be assigned (Sec.39)
oCertification Marks can be assigned with consent of Registrar

Registration – Sec.45
oAssignee to apply for Registration of assignments and transmissions
oWhere validity of assignment or transmission is in dispute – comptent
court to decide
oUntil an application under sub-section (1) has been filed, the
assignment or transmission shall be ineffective against a person
acquiring a conflicting interest in or under the registered trade mark
without the knowledge of assignment or transmission.”.

Sun Pharmaceuticals Industries Ltd. Vs. Cipla Limited,
2009(39)PTC347(Del)
The Trademark “THEOBID” was assigned to the Plaintiff along with the
goodwill by deed of assignment. Form TM 24 was submitted to register
the name of the Plaintiff as the subsequent proprietor of Trade Mark –
“THEOBID” the defendant – Cipla Ltd. used the Trademark “THEOBID -
D, deceptively similar to the Plaintiff. The Plaintiff Sun Pharmaceutical
had instituted the suit for Permanent injunction against defendant.
Judgement: Held, the Plaintiff, whose registration of assignment is
pending before the registrar (not registered) is entitled to exercise right
as the Registered Proprietors of Trade Mark THOEBID. Plaintiff entitled
to interim order. The defendant co. was restrained from manufacturing,
selling or dealing in medical preparations under the trademark
“THEOBID”

Registered Users – Sec.48
oA person other than the registered proprietor of a trade
mark may be registered as a registered user thereof in
respect of any or all of the goods or services in respect of
which the trade mark is registered.
oThe permitted use of a trade mark shall be deemed to be
used by the proprietor thereof, and shall be deemed not
to be used by a person other than the proprietor, for the
purposes of section 47 or for any other purpose for which
such use is material under this Act or any other law.
oSec 47 – Removal for non-use for 5 years

Suit for Infringement (Sec.134)
Suit for Infringement or Passing off
oTo be Instituted in District Court only
oWhere plaintiff resides or carries on business

Burger King Corporation v. Techchand Shewakramani
2018(76)PTC90(Del)
The Plaintiff filed a suit, under S.134(2) of the Trade Marks Act and S.20 CPC, alleging infringement and passing
off of its registered marks “BURGER KING” and “HUNGRY JACK’S” by the Defendant before Delhi High Court.
The Defendant sought rejection of the plaint on the ground of lack of cause of action and lack of territorial
jurisdiction of the DHC as the Defendant’s business was in Mumbai. The Court concluded that either Section
20 or Section 134 can be invoked when it comes to deciding the forum for initiating a trademark infringement
suit. The Defendant’s application was rejected as the Court found that the Plaintiff made out a cause of action
within the territorial jurisdiction of the Court as the Defendant had promoted the impugned mark in Delhi,
entertained franchisee queries from Delhi, sought franchise requests through its website and publicly
expressed their intention to expand their business across India.
Ratio: the provisions of Section 134 of the TM Act and Section 62 of the Copyright Act are in addition to and
not in exclusion of Section 20 of the CPC. If the Plaintiff can make out a cause of action within the territorial
jurisdiction of this Court under Section 20, no reference needs to be made to Section 134.

Reliefs in such suit – Sec.135
oThe relief which a court may grant …includes injunction and
oat the option of the plaintiff, either damages or an account of profits, together
with or without any order for the delivery-up of the infringement labels and
marks for destruction or erasure.
oThe order of injunction may include an ex parte injunction or any interlocutory
order for any of the following matters, namely:-
(a) for discovery of documents;
(b) preserving of infringing goods, documents or other evidence which are
related to the subject-matter of the suit;
(c) restraining the defendant from disposing of or dealing with his assets in
a manner which may adversely affect plaintiff's ability to recover damages, costs
or other pecuniary remedies which may be finally awarded to the plaintiff.

Civil remedies
following forms of civil relief are available:
an interlocutory, temporary or ad interim injunction;
a Mareva injunction;
an Anton Piller order;
a John Doe order;
a permanent or perpetual injunction;
damages or accounts of profits; and
delivery up and destruction

Administrative remedies
o Opposition against a similar mark;
o Rectification of a registered mark; and
o Recordal with Customs to prevent the import or export
of goods bearing the infringed trademark.
 The IPR (Imported Goods) Enforcement Rules, 2007 in conjunction with the
Customs Act offers trademark rights holders to register their trademark with
the customs houses to stop the import of infringing and counterfeit
products.
 The said Rules provide for a mechanism for registering a trademark with the
Central Board of Excise and Customs, whereby the concerned Customs
offices shall watch out, seize and confiscate any goods that are found to be
infringing or counterfeiting the said trademark.

Titan Industries vs. Nitin P. Jain 2006(32)PTC95(Del)
The question was whether the Plaintiff could claim both the relief, that
is, for damages and for rendition of accounts together
- Held, claimant was given an option to claim either damages or profits
and such an option was exercisable at the conclusion of hearing of the
case - Both the reliefs could be claimed in the alternative with right to
the plaintiff to make an informed election between damages and profits
in the course of trial.

Stay of Proceedings (Sec.124)
Where in any suit for infringement of a trade mark – the defendant pleads that
registration of the plaintiff's trade mark is invalid ; the court shall
(i) if any proceedings for rectification of the register in relation to the
plaintiff's or defendant’s trade mark are pending before the Registrar or the
Appellate Board, stay the suit pending the final disposal of such proceedings;
(ii) if no such proceedings are pending and the court is satisfied that the plea
regarding the invalidity of the registration of the plaintiffs or defendant's trade mark
is prima facie tenable, raise an issue regarding the same and adjourn the case for a
period of three months from the date of the framing of the issue in order to enable
the party concerned to apply to the Appellate Board for rectification of the register.
The stay of suit for the infringement of a trade mark under this section shall not
preclude the court from making any interlocutory order (including any order granting
an injunction, directing account to be kept, appointing a receiver or attracting any
property), during the period of the stay of the suit.

Penalty for applying false trade marks, trade descriptions etc. –
Sec.103
Any person who-
(a) falsifies any trade mark; or
(b) falsely applies to goods or services any trade mark; or
(c) makes, disposes of, or has in his possession, any die, block, machine, plate or other
instrument for the purpose of falsifying or of being used for falsifying, a trade mark; or
(d) applies any false trade description to goods or services; or
(e) applies to any goods to which an indication of the country or place in which they
were made or produced or the name and address of the manufacturer or person for
whom the goods are manufactured is required to be applied under section 139, a false
indication of such country, place, name or address; or
(f) tampers with, alters or effaces an indication of origin which has been applied to any
goods to which it is required to be applied under section 139; or
(g) causes any of things above-mentioned in this section to be done,

Penalty for applying false trade marks, trade descriptions etc. –
Sec.103
shall, unless he proves that he acted, without intent to defraud, be
punishable with imprisonment for a term which shall not be less than
six months but which may extend to three years and with fine which
shall not be less than fifty thousand rupees but which may extend to
two lakh rupees:
PROVIDED that the court may, for adequate and special reasons to be
mentioned in the judgement, impose a sentence of imprisonment for a
term of less than six months or a fine of less than fifty thousand rupees.
o Cognisable (Sec.115)
o Invalidity plea (Sec.113)
o Burden of Proof of assent (Sec.102)

Consim Info Pvt. Ltd. Vs. Google India Pvt. Ltd. 2013(54)PTC578(Mad)
o In this case, the appellant was a private limited company providing online matrimonial
services. In the course of its business, it had adopted several trademarks including, inter alia,
Bharatmatrimony, Tamilmatrimony, Telugumatrimony, Assamesematrimony, etc. and
registered several domain names with these word marks.
o Respondents “Google” were in the business of offering an advertisement programme,
called, AdWords which generates ‘Sponsored Links’ on the right hand side of any organic
search results produced by Google, closely corresponding to the term searched for. Google
allow the Key Word to appear as a part of the advertisement as well. Therefore, the more
the term is searched for, the more chances are that it is a heavily demanded Key Word. The
competitors would thus bid for the Key Words of the other players in their business to catch
the attention of the user and thereby divert the business meant for such other players.

E-Commerce & Trade Marks –
Key words & Meta tags
o Consim Info Pvt. Ltd. Vs. Google India Pvt. Ltd. 2013(54)PTC578(Mad) –
o The appellant filed a suit for permanent injunction restraining Google from infring ing their
trademarks by using them in the AdWord Program and Key Word suggestion Tool and also to
restrict Google from passing off their services using the appellant’s trademarks and their
closely resembling variants. The issue in question was whether such use of appellant’s
trademark by Google’s Ad program amounted to trademark infringement.
o Madras High Court in this case, thus concluded that there could be infringement but
declined to grant injunction since bharat and matrimony were generic words that did not
have too many synonyms/variations.

Cyber Property Jurisprudence – Domain Names
o Domain names are the addresses of the computers connected to the Internet
o Just as every office or residence in the real world has an address, each server connected to
the Internet has a unique identification number called the Internet Protocol address
o In order to make the Internet address system user friendly, the numeric IP Address system
has been overlaid with a system of domain names, which can be easily remembered
o Thus when an internet user enters an easy to remember domain name like
www.nalsarlawuniv.org, the computer converts that into a unique numeric address that
corresponds to nalsarlawuniv.org, i.e. 202.53.64.243

Domain Names
oThe Domain Name System (DNS), allows for 2 categories of top level domains,
generic top level domains (gTld) and country code top level domain (ccTld)
ogTld are .com, org, .net, .edu, .mil, .gov, .int, .aero, .info, .biz etc
occTld is a two letter country code, .au for Australia, .in for India
oDomain names themselves consist of 2 separate parts, a top level domain name and
a second level domain name
oE.g. highcourt.org consists of a top level domain name .org and a second level
domain name highcourt

Domain Names
oDomain names were originally intended to perform only the
function of facilitating the connectivity of computers through
Internet
oBut at a later stage they began to be used as a form of business
identifier, simply because they are easy to remember and use
oBusinesses started to realise the significant potential of web
sites as an important medium of facilitating e-commerce
oBy using trade and service marks as their domain names,
businesses hope to attract potential customers to their
websites and increase their market visibility
oAt this stage conflicts began to arise between trade marks and
domain names

Domain Names
oOne of the main reasons for the conflict is that, there is no
connection between the system for registering trade marks
and domain names
oTrade Marks are administered by a public authority on a
territorial basis, which gives rise to certain rights to the
trade mark owner within that territory
oOrdinarily a trade mark will be refused registration if there
already exists an identical or similar mark, or if the said
mark has the potential of deceiving or confusing the general
public

Domain Names
oWhereas domain names are administered by non governmental
entities and the domain name so registered has a global presence
oDomain names are registered on first come first served basis
oThis would simply mean that any person can own the domain
name variant of a famous trade mark, if he is the first person to
apply
oDuring the early days of Internet, many individuals had infact
registered the domain name versions of some famous trade
marks and had charged huge amounts from them for selling back
these domain names.
oThis practice is popularly called as Cybersquatting

Domain Names
oDuring the initial days there was lack of coordination between
various parties who were managing the Internet
oInitially Internet was funded and managed by an agency of the
US government called the National Science Foundation
oLater on Internet Assigned Numbers Authority (IANA) for set
up for formulating the policies and standards for the
management of the DNS
oNSI another private US company was responsible for the
worldwide registration of domain names
oThus there were different entities operating, so it became
difficult to create a special plan to deal with the unique
problem pertaining to trade marks and domain names

Cyber Property Jurisprudence
oLater on in 1998 the US government made a proposal to the
WIPO to conduct a study on the problematic interface
between domain names and trade marks and suggest a
remedy, this proposal was supported by the other member
states of WIPO
o In 1999 a body called ICANN (Internet Corporation for
Assigned Names and Numbers) was established to manage the
DNS
oICANN is responsible for coordinating the management of the
DNS by overseeing the distribution of unique technical
identifiers used in the Internet's operations, and delegation of
Top-Level Domain names (such as .com, .info etc.).

oIn 1999 WIPO submitted its report to ICANN and suggested
some remedial measures to solve the trade mark domain
name conflicts
oICANN adopted the WIPO report and it is presently known as
Uniform Domain Name Dispute Resolution Policy
oAccording to this policy all domain name holders are required
to submit to a mandatory administrative proceeding in case of
a third party complaint citing any of the following grounds
 (i) the said domain name is identical or confusingly similar to a trademark
or service mark in which the complainant has rights; and
 (ii) the domain name holder has no rights or legitimate interests in respect
of the domain name; and
 (iii) the said domain name has been registered and is being used in bad
faith.

Evidence of Registration and Use in Bad Faith.
(i) circumstances indicating that the domain name
holder has registered the domain name primarily
for the purpose of selling, renting, or otherwise
transferring the domain name registration to the
complainant who is the owner of the trademark or
service mark or to a competitor of that
complainant, for valuable consideration in excess of
the out-of-pocket costs directly related to the
domain name; or

Domain Names
 The domain name holder has registered the domain name in
order to prevent the owner of the trademark or service mark
from reflecting the mark in a corresponding domain name,
 The domain name holder has registered the domain name
primarily for the purpose of disrupting the business of a
competitor; or
 The domain name holder has intentionally attempted to
attract, for commercial gain, Internet users to his web site or
other on-line location, by creating a likelihood of confusion
with the complainant's mark as to the source, sponsorship,
affiliation, or endorsement of his web site or location

Domain Names - Defences
What are the defences available
(i) If the domain name holder has used or has made preparation
to use the domain name or a name corresponding to the domain
name in connection with a bona fide offering of goods or
services; or
(ii) If the domain name holder is commonly known by the domain
name, even if he has not have acquired no trademark or service
mark rights; or
(iii) If the domain name holder is making a legitimate
noncommercial or fair use of the domain name, without intent
for commercial gain to misleadingly divert consumers or to
tarnish the trademark or service mark at issue.

Domain Names – Remedies
oThe remedies available to a complainant pursuant to any
proceeding before an Administrative Panel shall be limited to
the cancellation of the said domain name or the transfer of the
domain name registration to the complainant
oUDRP became applicable from December 1999 and has
become a big success
oICANN has appointed many dispute resolution providers to
resolve the disputes in accordance with UDRP.
oWIPO is an approved dispute resolution provider and
adjudicates the maximum number of disputes
oMost of the multinational corporations including GE, Pfizer,
Vodafone, Coca-Cola etc have made use of the ICANN Policy

oSeveral Indian companies including Tata, Satyam,
Times of India, Mahindra and Mahindra have
successfully used the ICANN policy against
cybersquatters
oUS is the first country to draft a special law to deal
with Cybersquatting titled “Anticybersquatting
Consumer Protection Act 1999”
oThe said Act targets the bad faith registration of a
domain name and has provisions to protect the names
of living individuals, in rem proceedings, monetary
remedies etc

Reverse Domain Name Hijacking
oThis will happen when a party uses the ICANN policy in bad
faith to attempt to deprive a registered domain name
holder of a domain name
oHere two legitimate parties are involved in a dispute over a
domain name, where each party claims to be the true
owner on account of an identical or similar mark being used
as part of its business
oIn such cases the burden of proof on the complainant is
much higher than that is required in the ordinary cases
where the complainant has a clear right

oApart from the ICANN mechanism, the trademark holder can
also use the remedy under passing off
oIn common law countries passing off action is invoked to
protect trade marks from being misused
oIn India, many domain name cases have been decided by the
courts by invoking the passing off doctrine, e.g. Yahoo v Akash
Arora, (1999) PTC 201, Rediff Communications v Cyberbooth
(2000) PTC 209, …….Buffalo Networks P Ltd. v Manish Jain,
2005 (30) PTC 242(Del) etc
oRecently the Supreme Court invoked the passing off doctrine in
a domain name dispute, Satyam Infoway Ltd. v Sifynet
Solutions Pvt. Ltd. 2004 (28) PTC 566 SC

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