Delhi High Court
Leayan Global Pvt Ltd vs Bata India Ltd on 15 December, 2025
Author: C. Hari Shankar
Bench: C. Hari Shankar
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 2 December 2025
Pronounced on: 15 December 2025
+ FAO(OS) (COMM) 105/2019 & CM APPL. 22368/2019
LEAYAN GLOBAL PVT LTD .....Appellant
Through: Mr. Shravan Kumar Bansal,
Mr. Rishi Bansal, Mr. Ajay Amitabh
Suman, Mr. Pankaj Kumar and Mr. Rishabh
Gupta, Advs.
versus
BATA INDIA LTD .....Respondent
Through: Mr. Neeraj Grover, Mr.
Kashish Sethi, Ms. Harshita Chawla, Mr.
Angad Deep Singh and Ms. Mohana Sarkar,
Advs.
+ FAO(OS) (COMM) 193/2019
BATA INDIA LTD .....Appellant
Through: Mr. Neeraj Grover, Mr.
Kashish Sethi, Ms. Harshita Chawla, Mr.
Angad Deep Singh and Ms. Mohana Sarkar,
Advs.
versus
CHAWLA BOOT HOUSE & ANR .....Respondents
Through: Mr. Shravan Kumar Bansal,
Mr. Rishi Bansal, Mr. Ajay Amitabh
Suman, Mr. Pankaj Kumar and Mr. Rishabh
Gupta, Advs.
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CORAM:
HON'BLE MR. JUSTICE C. HARI SHANKAR
HON'BLE MR. JUSTICE OM PRAKASH SHUKLA
% JUDGMENT
15.12.2025
The lis
1. CS (Comm) 110/20191, instituted by Bata India Ltd2 against
Leayan Global Pvt Ltd3, is presently pending before a learned Single
Judge on the Intellectual Property Division of this Court.
2. Bata has alleged, in the suit, that Leayan, by use of the mark
POWER FLEX, for footwear, has infringed the mark POWER, which
is the registered trademark of Bata in respect of footwear. Bata has,
therefore, in the suit, prayed for a decree of permanent injunction,
restraining Leayan from using any mark of which POWER constitutes
a dominant part in respect of footwear or other allied goods.
3. Bata also filed, in the suit, IA 3051/2019 seeking interlocutory
injunction against Leayan, pending disposal of the suit from using the
mark POWER FLEX or any other mark which may be identical or
deceptively similar to the Bata's mark POWER.
4. On 27 February 2019, the learned Single Judge passed an ex
parte ad interim order, restraining Leayan from using the mark
POWER in respect of footwear either on its own or in combination
1 "the suit" hereinafter
2 "Bata" hereinafter
3 "Leayan" hereinafter
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with any other word till the next date of hearing.
5. Bata had further prayed that Leayan be also restrained from
using the expression POWER OF REAL LEATHER. However, the
learned Single Judge deferred the decision on this request till
completion of pleadings on the application, merely stating that, in the
said tagline, no undue emphasis would be placed on the word
"POWER". Leayan was also granted liberty to move the Court for
disposal of existing stocks.
6. Leayan moved IA 4472/2019 for being permitted to sell the
existing stocks of the allegedly infringing goods. A stock statement
was stated to have been filed with the documents filed by Leayan,
which indicated 38415 pairs of footwear lying in stock. The learned
Single Judge granted the prayer for disposal of the stock in the
following terms on 27 March 2019 :
"5. The Defendants were given liberty to move an application
for disposal of any existing stock. Since this was stock which was
already manufactured by the Defendants, prior to the grant of
injunction on 27th February, 2019, the Defendant is permitted to
dispose of the stock as mentioned in the statements subject to the
following conditions:
(i) The Defendants are directed to file monthly
statement of disposal of the said stock;
(ii) Defendants shall file an affidavit in respect of the
value of the said stock which is disposed of;
(iii) No fresh manufacturing is permitted with the
impugned marks.
6. The permission to dispose of the stock is subject to further
orders in the interim injunction application which is listed for
hearing on 3rd April 2019."
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7. Leayan also filed IA 3686/2019 under Order XXXIX Rule 4 of
the Code of Civil Procedure, 19084 for vacation of the ex parte ad
interim order dated 27 February 2019 passed by the learned Single
Judge.
8. The learned Single Judge, by order dated 16 April 2019,
disposed of IA 3051/2019 filed by Bata under Order XXXIX Rules 1
and 2 of the CPC and IA 3686/2019 filed by Leayan under Order
XXXIX Rule 4 of the CPC with the following directions :
"a) Defendant No.2 is restrained from using the mark/word
'POWER‟ in respect of footwear, clothing and accessories and
other related products including the mark 'POWER FLEX‟ or any
other mark containing the word 'POWER‟ or a combination
thereof;
b) The use of the tagline 'THE POWER OF REAL
LEATHER‟ as part of an advertising slogan or a tagline is
permitted, however, no undue prominence shall be given to the
word 'POWER‟;
c) The existing stock of products as mentioned in para 32
above is permitted to be sold by filing a monthly statement of
disposal, including the value of the stock so sold, subject to the
final adjudication in the suit."
9. The aforesaid order dated 16 April 2019, of the learned Single
Judge, has been challenged before us in the present appeals both by
Leayan and by Bata. Leayan has challenged direction (a) in the
impugned order whereas Bata has challenged directions (b) and (c).
10. We have heard Mr. S.K. Bansal, learned counsel for the Leayan
and Mr. Neeraj Grover, learned counsel for the Bata, at length.
4 "CPC" hereinafter
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Proceedings before the learned Single Judge
Rival contentions of Leayan and Bata before the learned Single Judge
Contentions of Leayan
11. Before the learned Single Judge, Leayan submitted as under:
(i) In its reply to the First Examination Report issued by the
Trade Marks Registry, in response to Bata's application for
registration of its various POWER derivative marks, Bata had
claimed that the mark POWER and similar marks such as
POWERGUN and POWER LABEL were visually, structurally
and conceptually different from each other. Bata could not,
therefore, be heard to plead that the mark POWER FLEX of
Leayan was deceptively similar to the mark POWER of Bata.
(ii) POWER was a laudatory expression and could not be
monopolized.
(iii) The word POWER was a common dictionary word, over
which exclusivity could not be claimed.
(iv) Various applications had been filed before the Trade
Marks Registry for registration of trade marks of which POWER
was a part in respect of footwear.
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(v) Leayan had commenced use of the mark POWER FLEX
in 2010-2011. Mr. Virat Kohli was its brand ambassador. The
suit which was instituted only in 2019 was, therefore, grossly
belated.
(vi) POWER FLEX was never used by Leayan in isolation as
a trade mark but was always used in conjunction with the mark
RED CHIEF.
(vii) There was, therefore, no chance of confusion between the
marks.
(viii) Leayan used the mark POWER FLEX for leather
footwear whereas Bata used the mark POWER for sporting
footwear. This, again, obviated the possibility of any confusion
between the marks.
(ix) Leayan had used the mark POWER FLEX in an honest
and concurrent fashion since 2011. Such open and extensive use
itself operated as a bar to grant of interim relief restraining use of
the mark.
(x) Given the extent of user of the mark POWER FLEX by
Leayan and the extent to which the mark was advertised, using
celebrities amongst others, Bata could not have been unaware of
the said mark.
(xi) The advertisements depicting the mark POWER FLEX
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were also published in leading newspapers such as "Amar
Ujala".
12. Without prejudice to these submissions, Leayan undertook,
before the learned Single Judge to use the mark POWER FLEX only
for leather footwear and only in conjunction with the mark RED
CHIEF, in a composite fashion, without any special prominence to the
word POWER.
Contentions of Bata
13. Responding to Leayan's submissions, Bata contended before
the learned Single Judge as under:
(i) The mark POWER, both as a word mark and as a device
mark, was registered in favour of Bata, not only for sports
footwear but also for leather goods.
(ii) Bata had enormous goodwill in the mark POWER. The
sale proceeds of goods using the mark POWER by Bata for the
year 2018, were to the tune of approximately ₹ 480 Crores,
which was 20% of the total sales of Bata.
(iii) Leayan had contended, falsely, that it was not using the
mark POWER FLEX independently and it was only using the
mark in conjunction with the mark RED CHIEF.
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(iv) The suit could not be said to be belated. The cause of
action for instituting the suit arose only when Leayan filed
evidence of use of the mark POWER FLEX in the opposition
proceedings before the Trade Marks Registry. Prior thereto, Bata
had no knowledge of Leayan's use of the mark POWER FLEX.
(v) Having itself applied for registration of the mark
POWER FLEX, Leayan was estopped from contending that the
mark POWER was descriptive or laudatory or was disentitled to
exclusivity being a common dictionary word.
(vi) The advertisements cited by Leayan were for the RED
CHIEF brand.
(vii) No separate sales turnover figures from sale of goods
bearing the mark POWER FLEX effected by Leayan were
provided.
14. Premised on these contentions, Bata pressed its prayer for grant
of interlocutory relief.
Findings of the learned Single Judge
15. The learned Single Judge commences her observations and
findings with a note of disapproval at Bata having impleaded Chawla
Boot House5, who was a retailer of Leayan as the first defendant, and
Leayan itself as the second defendant. The learned Single Judge has
5 "CBH" hereinafter
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gone on to issue directions to the Registry and seek undertakings from
all plaintiffs in Intellectual Property Rights matters that the main
contesting defendant in the suit has to be arrayed as the first
defendant.
16. Though Mr. Grover, learned counsel for the Bata took
exception to this note of disapproval, Bata can really have no
grievance against the practice directions to the Registry issued by the
learned Single Judge. We, however, have our reservations as to
whether, in the absence of any mandate, in the CPC or in any other
statute, plenary or subordinate, requiring the "main contesting
defendant" to be arrayed as Defendant 1, such a direction could be
issued by the learned Single Judge. Besides, as Mr. Grover, points
out, the manufacturer of the infringing goods and the seller of the
infringing goods are equally infringers within the meaning of Section
29 of the Trade Marks Act, 1999, as both use the infringing mark in
the course of trade. It might be doubtful, therefore, whether merely on
the basis of the size of the enterprise, one of them can be treated as the
main defendant and the other as the subsidiary defendant. More on
this hereinafter.
17. In so far as the merits of the matter are concerned, the learned
Single Judge has observed and held as under:
(i) Bata was the registered proprietor of several registrations
for the word mark POWER as well as for POWER derivative
marks.
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(ii) The earliest registration of 1971, was for the mark
POWER with the arrow logo .
(iii) As a standalone mark, POWER was registered in Bata's
favour, both as a word mark and a device mark since 1975.
(iv) The earliest invoice furnished by Bata evidencing use of
the mark POWER, for footwear, dated back to 29 September
1988.
(v) Bata had also produced considerable evidence of
goodwill having been amassed by its mark POWER.
Advertisements, dating back to 1980s, were on record, showing
use of the mark POWER in association with the Indian Cricket
Team. An exclusive window, with the POWER branded
footwear, also depicted that cricketers such as Kapil Dev and
Sachin Tendulkar, had used POWER on their cricket bats. The
POWER mark had also been positioned as the international
sports brand of Bata. There were various stores which
exclusively retailed POWER branded footwear, the first of
which was launched in March 2018.
(vi) Leayan's contention that it was not using the mark
POWER FLEX in isolation, but was always using it in
conjunction with the mark RED CHIEF, was incorrect. The
mark POWER FLEX was used, in isolation, on the inside of the
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footwear manufactured by Leayan.
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(vii) The advertisement dated 2 February 2011, featuring Virat
Kohli, on which Leayan relied, indicted that it was for RED
CHIEF branded products and not for products bearing the mark
POWER FLEX.
(viii) Bata had at least 40 years' priority of user of the mark
POWER over the use the mark POWER FLEX by Leayan.
(ix) The evidence of use of the mark POWER FLEX by
Leayan was sketchy. No independent sales turnover had been
provided for goods bearing the mark POWER FLEX. There
were only six or seven advertisements, in the "Amar Ujala"
periodical, and no other evidence of any major publicity of the
mark POWER FLEX.
(x) In accordance with the law declared by the Division
Bench of this Court in Pankaj Goel v. Dabur India Ltd6, it
could, therefore, be stated that Bata had acquiesced to the use of
the mark POWER FLEX by Leayan and had thereby allowed
Leayan to build up a reputation.
(xi) The plea of Leayan that there was no likelihood of
confusion as the mark POWER FLEX was used by it for leather
footwear, whereas the mark POWER was used by Bata for
sports goods, was without merit.
6 (2008) 38 PTC 49 (DB)
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(xii) There was always reasonable scope of Bata expanding
the use of the mark POWER to include leather footwear. Courts
were required to bear in mind such reasonable scope of
expansion, as held by the Supreme Court in Laxmikant V.
Patel v. Chetan Bhai Shah7.
(xiii) Moreover, sports goods and goods in leather footwear
were goods which were allied and cognate. It was a matter of
common knowledge that companies used to manufacture both
kinds of goods under one brand.
(xiv) It could not be reasonably believed that, while adopting
the mark POWER FLEX, Leayan was unaware of the POWER
brand of the Bata.
(xv) Having applied for registration of the mark POWER
FLEX, Leayan was estopped from contending that the mark
POWER was laudatory, a dictionary word or otherwise not
entitled to any claim for exclusivity.
(xvi) Even on merits, it could not be said that the mark
POWER was descriptive of the footwear manufactured by Bata.
At the highest, it was only suggestive. In this context, reliance
was placed on Trademarks and Unfair Competition by Thomas
Mc Carthy, which opined that the aspect of whether a mark was
descriptive or suggestive, could be decided by examining
(a) the degree of imagination required to connect the
7 (2002) 3 SCC 65
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mark with the product, and
(b) the competitors' need to use the mark.
The word POWER did not immediately direct the mind to
shoes or footwear. It required a leap of mind to connect the
word POWER with footwear. The dictionary meaning of the
word POWER was essentially related to ability, control or
authority, dominance, etc. As such, POWER could, at best, be
treated as a suggestive mark for footwear. Thereby, it was
rendered inherently distinctive.
(xvii) Even if one were to apply instead of the aforenoted two
tests suggested in Mc Carthy, the intuitive perception test
devised in Union Carbide Corp. v. Ever-Ready, Inc.8, the word
POWER, when used for footwear, was distinctive and not
descriptive.
18. Based on these findings, the learned Single Judge arrived at the
conclusion that the mark POWER was exclusively associated with
Bata's brand of footwear and that use of the mark POWER, either in
isolation or in combination with other words, for footwear,
accessories, clothing etc. violated the statutory or common law rights
of Bata in the said mark.
19. On the basis of this conclusion, the learned Single Judge went
on to issue direction (a) in the impugned order, reproduced in para 8
supra.
8 531 F. 2d. 366
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20. The issuance of directions (b) and (c) was sought to be justified
on the following findings:
"33. However, the Court is also conscious of the fact that
Defendant No. 2's use in the last 4-5 years, has not been as
restricted as the Plaintiff made it out to be in the plaint. The
documents which have been filed by Defendant No. 2 do show that
Defendant No. 2 has had at least some years of use even though
not very prominent, prior to the filing of the present suit. The
Plaintiff's stand that Defendant No. 2's usage came to its
knowledge only through the evidence in the opposition
proceedings, seems a bit farfetched when seen in the context of the
documents placed on record by Defendant No. 2. While holding
that the Plaintiff is entitled to grant of interim injunction,
Defendant No. 2 is permitted to exhaust the entire stock of
'POWER FLEX' branded goods, available with it. ...
34. Vide order dated 27th March, 2019, this Court had already
permitted the Defendant to sell the existing stock, subject to certain
conditions. The said conditions are again reiterated in this order.
35. Further, while Defendant No. 2 would not be permitted to
use the mark 'POWER FLEX' as a trademark, the English
language use of the word 'POWER' as part of an advertising
slogan or as in tagline 'THE POWER OF REAL LEATHER' cannot
be injuncted. The case laws cited by both the sides are well
settled."
21. Aggrieved thereby, Leayan is before us in the present appeal.
Rival Contentions
Submissions of Mr. S. K. Bansal
22. Assailing the impugned judgment, Mr. Bansal, learned Counsel
for Leayan advances the following submissions:
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(i) Bata had deliberately impleaded CBH, one of the
retailers of Leayan, as Defendant 1. This was in order to avoid
Leayan noticing the matter in the cause list and was, even
otherwise, not permissible as held by the Division Bench of this
Court in Micolube India Ltd v. Maggon Auto Centre9.
(ii) The impugned judgment does not take stock of the
extensive goodwill and reputation which Leayan's POWER
FLEX products had acquired even prior to the filing of the suit.
Our attention was invited, in this context, to various
advertisements, on pan-India basis, both in the print media as
well as on televisions and invoices of POWER FLEX products
manufactured by Leayan, which were on record before the
learned Single Judge. Moreover, Leayan operated through over
135 stores all over India. Having thus acquiesced to the use, by
Leayan, of the POWER FLEX mark for an extended period of
time, by which the mark had acquired goodwill and reputation,
Bata could not belatedly seek to injunct use of the mark.
(iii) In this context, it was pointed out that Leayan had
submitted its application for registration of the word mark
POWER FLEX in Class 25 on 7 September 2009. The
opposition to the application was filed by Bata only on 15
September 2017. Counter-statement by way of response to the
opposition was filed by Leayan on 22 March 2018. The suit
came to be instituted by Bata only in February 2019. Between
2010 and 2019, Leayan had extensively used the POWER
9 (2008) 38 PTC 271 (DB)
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FLEX mark and garnered considerable goodwill therein.
Reliance was placed, for this purpose, on para 29 of the
judgment of a learned Single Judge of this Court in QRG
Enterprises v. Surendra Electricals10, the appeal against which
was dismissed in QRG Enterprises v. Surendra Electricals11.
Apropos the judgment of the Supreme Court in Midas Hygiene
Industries (P) Ltd v. Sudhir Bhatia12, it was submitted that the
proposition that delay could not stand in the way of grant of
injunction in a case in which infringement was found to exist,
as enunciated therein, was applicable only to cases where the
defendant had acted dishonestly. In this context, reliance was
further placed on the following authorities
(a) paras 57, 62 and 83 of the judgment of the
Division Bench of the High Court of Calcutta in Shree
Ganesh Besan Mill v. Ganesh Grains Ltd13,
(b) paras 3, 25, 37, 41 and 43 of the judgment of the
Division Bench of this Court in Intex Technologies
(India) Ltd v. M/s AZ Tech (India)14,
(c) para 6 of the judgment of the Supreme Court in
Neon Laboratories Ltd v. Medical Technologies Ltd15,
(d) paras 16, 18 and 19 of the judgment of the
Division Bench of this Court in Shree Nath Heritage
Liquor Pvt Ltd v. M/s Allied Blender & Distillers Pvt
Ltd16,
10 120 (2005) DLT 456
11 2007(98) DRJ 499 (DB)
12 (2004) 3 SCC 90
13 AIR 2022 Cal 171
14 2017 SCC OnLine Del 7392
15 (2016) 2 SCC 672
16 (2015) 63 PTC 551
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(e) paras 3, 23, 26 and 30 of the judgment of the
Division Bench of this Court in Rhizome Distilleries P
Ltd v. Pernod Ricard S.A. France17,
(f) para 13 of the judgment of the Supreme Court in
Amritdhara Pharmacy v. Satya Deo Gupta18,
(g) the judgment of the Supreme Court in UOI v. N.
Murugesan19, and
(h) paras 16, 17, 19, 20, 23 and 25 of the judgment of
the Division Bench of this Court in Sanjha Chulha v.
Sanjha Chulha20.
(iv) Bata had, in its plaint, provided sales figures only from
2008.
(v) Para 17 of the plaint had sought to point out that the
appellant had applied under Section 23 of the Trade Marks Act
for registration of the mark POWER FLEX in Class 25 on
"proposed to be used" basis. This submission was misleading,
as the application was filed on "proposed to be used" basis in
2009, whereas it was published in the Trade Marks Journal on
15 May 2017, by which time the POWER FLEX mark had been
extensively used by Leayan and had acquired considerable
goodwill and reputation.
(vi) In view of the goodwill and reputation that the POWER
17 2009 SCC OnLine Del 3346
18 AIR 1963 SC 449
19 (2022) 2 SCC 25
20 (2023) 93 PTC 373
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FLEX mark of Leayan had amassed by 2017, the submission of
Bata, in its suit, that it had come to learn of the use, by Leayan,
of the POWER FLEX mark, only in 2017, could not be
believed.
(vii) Prosecution history estoppel was also pleaded. Reliance
was placed, in this context, on para 4 of the written statement
filed by Leayan before the learned Single Judge by way of
response to the plaint, which read thus:
"4. That the plaintiff on 17.10.2012 was also issued
Examination Report alongwith search report by the Trade
Mark Registry in its trademark application no. 2186513 in
class 25 for trademark . Ld. Registrar in the
said Examination Report cited objection under Section 11
of the Trade Marks Act, 1999 as the search report cited
POWER label registered under no. 1324117 in class 25 in
favour of R.V. Himamudeen and POWERGUN label
registered in favour of RAJ KUMAR JAGGI.
The plaintiff in its reply to the said Examination Report
inter-alia stated:
"An objection has been raised by the Examiner under
Section 11 of the Act that the mark is deceptively similar to
the marks as shown in the search report. The subject mark
is artistically conceptualized and graphically represented
mark of the applicants. When observed carefully it gives a
unique impression, which is visually structurally and
conceptually different, leaving no room for any confusion
among the purchasing public and trade. Besides being
visually different, the subject mark has been extensively
and continuously used by the applicants since the year
1975. Thus, it has already obtained distinctiveness through
extensive usage. The applicant happens to be the bone-fide
adopter of the mark POWER (logo), the applicant is using
the mark POWER FLASH DEVICE WITH POWER (L)
since 1975."
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The applicant wishes to associate the subject application
with prior Registration No. 1072354.
It is well settled in law that while comparison of marks it is
not proper to compare a portion of a mark with a portion of
another mark. Hence the above objections cannot be
sustained under Section 11."
(viii) There was no possibility of likelihood of confusion
between the marks in view of the difference in the manner in
which they were used. For this purpose, our attention was
invited to the following photographs of Leayan's footwear
bearing the POWER FLEX mark:
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(ix) Moreover,
(a) Leayan used the POWER FLEX mark for leather
shoes, whereas Bata used its mark for canvas footwear
and
(b) Leayan's shoes sold for over ₹ 8,000/- whereas
Bata's POWER footwear was priced in the range of ₹
2,000/-.
(x) In these circumstances, the finding, of the learned Single
Judge, that the evidence of the use of the mark POWER FLEX
by Leayan was sketchy was not justified.
23. For all these reasons, Mr. Bansal submits that the impugned
judgment deserves to be quashed and set aside.
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Submissions of Mr. Neeraj Grover
24. Responding to Mr. Bansal's submissions, Mr. Neeraj Grover,
appearing for Bata, asserts thus:
(i) No invoice, evidencing sale of goods bearing the
POWER FLEX mark had been filed by Leayan with its written
statement before the learned Single Judge.
(ii) In its counter-statement by way of response to the
opposition by Bata to Application 1859213 of Leayan for
registration of the POWER FLEX mark in Class 25, the only
evidence submitted by Leayan was of user was in the form of
(a) four illegible advertisements and
(b) approximately 25 invoices, the earliest of which
was of 2017, none of which referred to POWER FLEX
marked goods.
(iii) There was no data forthcoming on any of the newspaper
advertisements cited by Leayan, except some dates written in
hand, which, too, did not mention the years in which the
advertisements had been purportedly issued.
(iv) In-flight magazine advertisements, on which Leayan had
placed reliance, too, did not refer to the POWER FLEX mark,
except in very few cases.
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(v) There were no sales figures, or figures of turnover,
authenticated by any chartered accountant, produced by
Leayan, as would establish long user, by it, of the POWER
FLEX mark.
(vi) The learned Single Judge was, therefore, correct in
holding that the evidence of user by Leayan of the POWER
FLEX mark was sketchy.
(vii) As Bata had opposed the application filed by Leayan for
registration of the POWER FLEX mark, there could be no
question of acquiescence.
(viii) The plea of honest and concurrent user was never raised
even before the Registrar of Trade Marks21 in Leayan's counter-
statement filed by way of response to Bata's opposition.
Besides, the plea of honest and concurrent user is a plea which
is available under Section 1222 at the stage of application for
registration of a trademark, and is not a plea available as a
defence to an infringement action.
(ix) The position that emerged was, therefore, that Bata was
the prior registered proprietor of the POWER mark with
registrations of the mark both as a word mark as well as a
21 "ROTM" hereinafter
22 12. Registration in the case of honest concurrent use, etc.-- In the case of honest concurrent use or
of other special circumstances which in the opinion of the Registrar, make it proper so to do, he may permit
the registration by more than one proprietor of the trade marks which are identical or similar (whether any
such trade mark is already registered or not) in respect of the same or similar goods or services, subject to
such conditions and limitations, if any, as the Registrar may think fit to impose.
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device mark.
(x) In these circumstances, no exception could be taken to
the decision of the learned Single Judge to injunct the use, by
Leayan, of the POWER FLEX mark.
25. Mr. Grover further advanced the following submissions, in
FAO(OS)(COMM) 193/2019, which was essentially directed against
the concluding paras 33 to 35 of the impugned judgment:
(i) The learned Single Judge was not justified in allowing
Leayan to use the tagline THE POWER OF REAL LEATHER.
In this context, our attention was invited to the advertisement,
in the Trade Marks Journal of 28 May 2018, of the application
filed by Leayan for registration of the said tagline as a
trademark, in which the tagline appeared as under:
(ii) The learned Single Judge was also not justified in
permitting Leayan to exhaust the stock of POWER FLEX
footwear stated to be available with it. No safeguards were put
in place to ensure that the stock which was exhausted was the
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existing stock. No open ended right to sell existing stock could
thus be granted to Leayan. The consequence of such an open
ended right was that, till date, Leayan was continuing to sell
stocks which were purportedly in existence on the date of
passing the impugned judgment by the learned Single Judge
and had sold over 1 lakh shoes.
(iii) In these circumstances, it was prayed that Leayan ought
to be directed to deposit the proceeds of the sales effected by it
in terms of the liberty granted by the learned Single Judge, or at
least a considerable part thereof.
(iv) The learned Single Judge was also not justified in
deleting CBH from the array of parties. At least one of the
invoices, which was on record, had been issued by CBH, for
POWER FLEX marked goods. CBH was also, thereby, guilty
of infringing Bata's POWER marks. Moreover, no application
had been filed under Order I Rule 10 of the CPC, seeking at
deletion of CBH from the array of parties.
Submissions of Mr. S.K. Bansal in rejoinder
26. Mr. Bansal submits, in rejoinder, that Bata cannot be heard to
contend that the advertisements filed by Leayan were illegible,
especially, as, in para 19 of the plaint, the only objection taken by
Bata to the said advertisements were that their authenticity appeared
to be in dispute. No plea regarding the advertisements were being
illegible was taken. This plea could not, therefore, be urged in appeal.
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27. Mr. Bansal further pointed out that paras 18 and 20 of the
impugned judgment acknowledged the fact that there were
advertisements, evidencing use of the POWER FLEX mark by
Leayan, of 2011-12. The finding, of the learned Single Judge, that
there were only six or seven such advertisements was incorrect. Over
100 advertisements, showing sale of POWER FLEX branded goods
on pan-India basis, were available on record.
28. Insofar as Mr. Grover's contention that the invoices filed by
Leayan did not refer to the mark POWER FLEX was concerned, Mr.
Bansal submitted that the invoices referred to Article Numbers, and
that invoices in such cases do not mention the brand of the product.
29. Mr. Bansal also contests Mr. Grover's contention that, in the
garb of acting under the liberty provided by the learned Single Judge,
Leayan had disposed of goods in excess of those which were in stock.
He submits that 38,000 pairs of footwears were in stock, and that
Leayan was only disposing of approximately 1000 pieces per quarter,
so that the disposal was still continuing.
30. Finally, Mr. Bansal submits that the learned Single Judge was
entirely justified in allowing use, by Leayan, of the tagline THE
POWER OF REAL LEATHER, as the use of POWER as a part of the
said tagline could not result in confusion in the minds of the public.
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Analysis
Re. FAO (OS) (Comm) 105/2019
31. Re: Submission that impleadment of CBH as Defendant 1 in the
suit was improper and illegal.
31.1 Mr. Bansal's first submission was that the very impleadment of
CBH as Defendant 1 in the suit was improper and illegal and
engineered with a view to ensure that the matter would not be noticed
in the cause list. He places reliance for this submission on the
judgment of the Division Bench of this Court in Micolube India Ltd.
31.2 Before addressing this submission, we may note that, even if
Mr. Bansal's submissions were to be accepted, and the impleadment
of CBH as Defendant 1 were to be treated as irregular, that cannot
constitute a ground for us to reverse the judgment of the learned
Single Judge. In fact, the learned Single Judge has also, in a manner
of speaking, agreed with Mr. Bansal's submission and has even issued
directions to the Registry to ensure that, in all future cases, the main
contesting defendant is Defendant 1.
31.3 Mr. Grover submits that CBH cannot be treated as a non-
contesting defendant. He points out that sale of goods bearing
infringing marks is also an act of infringement, as Section 29(2)23
23 (2) A registered trade mark is infringed by a person who, not being a registered proprietor or a person
using by way of permitted use, uses in the course of trade, a mark which 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
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envisages "use" of the deceptively similar mark within the course of
trade as infringement, and Section 29(6)(b)24 of the Trade Marks Act
includes, in "use", offering of the goods bearing the infringing mark
for sale, especially as infringement, within the meaning of Section
29(2), involves dealing with goods bearing the infringing mark in the
course of trade. As such, Leayan and CBH were equally guilty of
infringement, and neither one could be treated as lesser defendant than
the other.
31.4 We agree with this submission. The law does not distinguish
between degrees of defendants. A defendant may be a contesting
defendant or a proforma defendant. Among contesting defendants,
there cannot be a "main" contesting defendant and a supplementary
contesting defendant. For all one knows, in a given case, the "main
contesting defendant" may not even choose to contest the case
whereas the other contesting defendant(s) may!
31.5 CBH was, therefore, as much a contesting defendant as Leayan.
We cannot, therefore, agree with Mr. Bansal, or for that matter with
the learned Single Judge, in the finding that the impleadment of CBH
as Defendant 1 was irregular, much less illegal.
(c) its identity with the registered trade mark and the identity of the goods or services
covered by such registered trade mark,
is likely to cause confusion on the part of the public, or which is likely to have an association with
the registered trade mark.
24 (6) For the purposes of this section, a person uses a registered mark, if, in particular, he--
*****
(b) offers or exposes goods for sale, puts them on the market, or stocks them for those
purposes under the registered trade mark, or offers or supplies services under the registered trade
mark;
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31.6 Besides, intellectual property litigant cannot afford to reside in
its own pristine heaven, alien to the CPC. Civil litigation in this
country has to abide by the provisions of the statute, and the
prevailing procedural statute in that regard is the CPC. The CPC does
not contain any provision which requires a plaintiff to implead
defendants in a particular sequence. All necessary and proper parties
have to be impleaded as defendants, and that is all.
31.7 Nor are there any provisions to be found in the Delhi High
Court (Original Side) Rules, 2018 or in the Intellectual Property
Division Rules, 2022, applicable in this Court, specifying the
sequence in which the defendants have to be arrayed. Even for this
reason, it cannot be said that the appellant's impleadment of CBH as
Defendant 1 in the suit was in any way irregular.
31.8 A learned Single Judge of this Court has, in Micolube India
Ltd v Maggon Auto Centre 25, opined as under:
"25. Another factor which goes against the plaintiff is the
manner in which the parties have been arrayed. The defendant No.
2 is the main defendant who has the registration of the well known
mark 'MICO' in respect of automotive parts. However, the
plaintiff has chosen to array Maggon Auto Centre as the main
defendant when, according to the averments made in paragraph 17
of the plaint, it is averred that the defendant No. 1 is only a dealer
of the impugned goods of the defendant No. 2 and that the exact
relationship between them is not known to the plaintiff and that the
defendant No. 2 is called upon to disclose the exact relationship
between them. It is unfortunate that the main defendant (Motor
Industries Co. Ltd.) has been arrayed as defendant No. 2 and
Maggon Auto Centre, who is alleged to be a dealer of the main
defendant and whose exact relationship is unknown to the plaintiff
is arrayed as defendant No. 1. It is not only in this case, but in
several other cases that this Court has noticed this unhealthy trend
25 2008 SCC OnLine Del 160, hereinafter referred to as "Micolube-I"
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on the part of the plaintiffs to array the main defendant as
defendant No. 2 or defendant No. 3 while naming some innocuous
dealer or retail outlet as defendant No. 1. The object is easily
discernible. When the counsel for the main defendants scan the list
of cases, they would not be able to know as to whether any case
has been filed against them so as to enable them to appear on the
very first date on which the case is listed before court. The very
fact that the plaintiff has also indulged in this practice is also an
indicator that it did not want the counsel for the defendant No. 2 to
appear on the first date on which the matter was taken up for
consideration of the grant or non-grant of ad interim injunction.
This fact also disentitles the plaintiff to any equitable relief. I am
of the view that the plaintiff has concealed and suppressed
material facts from this Court."
(Emphasis supplied)
31.9 In para 16 of the impugned judgment, the learned Single Judge
has observed that the Division Bench of this Court has, in Micolube
India Ltd v. Maggon Auto Centre26, which was the appeal against
Micolube-I, upheld the view of the learned Single Judge as contained
in para 28 of the said decision.
31.10 We cannot agree. There is no affirmation, in the judgment of
the Division Bench in Micolube-II, of the observation of the learned
Single Judge, in para 25 of Micolube-I, that merely because a "lesser"
defendant had been impleaded as the first defendant in the suit, the
plaintiff would be disentitled to interim relief.
31.11 The view that the manner in which the defendants have been
arrayed as party in the suit can be a ground to disentitle a plaintiff to
interim relief is, to our mind, contrary to the basic principles
governing Order XXXIX of the CPC. There are only three
considerations which govern grant of injunction in Order XXXIX,
26
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which are (i) the existence of a prima facie case, (ii) balance of
convenience and (iii) the possibility of irreparable loss ensuing to the
plaintiff were injunction not to be granted. To these, the decisions in
Ramnik Lal Bhutta v. State of Maharashtra27 and Raunaq
International Ltd v. I.V.R. Construction Ltd28 added a fourth
consideration, which was public interest.
31.12 Apart from these, there is no other consideration which governs
grant, or refusal, of interim relief, in terms of Order XXXIX of the
CPC.
31.13 We, therefore, do not agree with the observation, in para 25 of
Micolube-I, that the sequence in which the defendants in a suit have
been arrayed by the plaintiff can constitute a relevant consideration
for grant, or refusal, of interim relief.
31.14 Equally, therefore, the impugned judgment, to the extent it
adopts the same view, can also not be sustained.
31.15 That said, this is not a factor on the basis of which we can either
uphold or set aside the impugned judgment of the learned Single
Judge.
32. Principles relating to infringement and injunction
32.1 Before proceeding to the impugned order, it would be relevant
27 (1997) 1 SCC 134
28 (1999) 1 SCC 492
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to set out the basic principles relating to trademark infringement and
remedies available thereagainst, as contained in the Trade Marks Act,
in so far as they are relevant to the issues in controversy.
32.2 Infringement - Deceptive similarity and likelihood of confusion
32.2.1Infringement is entirely defined in Section 29 of the Trade
Marks Act. Of its various sub-sections and clauses, the only clause of
significance, for our purpose, is Section 29(2)(b)29. The ingredients of
tort of infringement as envisaged by Section 29(2)(b) are the
following:
(i) Infringement has to be of a registered trademark. As
such, no one can allege that his trade mark, which is not
registered under Section 23 of the Trade Marks Act, is
infringed.
(ii) Infringement has to be by a person who is neither a
registered proprietor of the infringing mark or using the
infringing mark by way of permitted use. "Permitted use" is
defined in Section 2(r)30. A user of a registered trade mark, with
29 (2) A registered trade mark is infringed by a person who, not being a registered proprietor or a person
using by way of permitted use, uses in the course of trade, a mark which because of--
*****
(b) its similarity to the registered trade mark and the identity or similarity of the goods or services
covered by such registered trade mark;
*****
is likely to cause confusion on the part of the public, or which is likely to have an association with the
registered trade mark.
30 (r) "permitted use", in relation to a registered trade mark, means the use of trade mark--
(i) by a registered user of the trade mark in relation to goods or services--
(a) with which he is connected in the course of trade; and
(b) in respect of which the trade mark remains registered for the time being; and
(c) for which he is registered as registered user; and
(d) which complies with any conditions or limitations to which the registration of
Signature Not Verified registered user is subject; or
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permission to do so in terms of Section 2(r) is not, therefore, an
infringer.
(iii) The infringing mark must be "used in the course of
trade". The Trade Marks Act does not specifically define "use
in the course of trade". However, Section 29(6) and Section
2(2)(b) and (c) are relevant in this regard.
(iv) Section 29(6) states that, for the purposes of Section 29, a
person uses a registered mark in any one or more of the four
circumstances enumerated in Clauses (a) to (d) thereof. These
are if
(a) the mark is affixed to goods or to their packaging,
(b) the said goods are, under the mark,
(i) offered or exposed for sale, or
(ii) put on the market, or
(iii) stocked for the purposes of offering or
exposing the goods for sale or putting them on the
market, or
(iv) imported or exported, or
(c) the mark is used on business papers or in
advertising.
(v) "Use of a mark", for the purposes of the Trade Marks
(ii) by a person other than the registered proprietor and registered user in relation to goods or
services--
(a) with which he is connected in the course of trade; and
(b) in respect of which the trade mark remains registered for the time being; and
(c) by consent of such registered proprietor in a written agreement; and
(d) which complies with any conditions or limitations to which such user is subject
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Act, is also explained in Section 2(2)(b) and (c)31. Read
together, and in relation to goods, Section 2(2)(b) and 2(2)(c)(i)
state that reference, in the Trade Marks Act, to the use of a
mark shall be construed as a reference to the use of
(a) printed or other visual representation of the mark
and
(b) use of the mark upon, or in any physical or in any
other relation whatsoever, to the goods.
(vi) The infringing mark must be similar to the registered
trademark.
(vii) The goods or services covered by the rival marks must be
identical or similar.
(viii) Owing to the similarity between the marks, and the
identity or similarity of the goods or services covered thereby,
there is, on the part of the public, likelihood of
(a) confusion, or
(b) an association between the marks.
32.2.2Likelihood of confusion
31 (2) In this Act, unless the context otherwise requires, any reference--
*****
(b) to the use of a mark shall be construed as a reference to the use of printed or
other visual representation of the mark;
(c) to the use of a mark,--
(i) in relation to goods, shall be construed as a reference to the use of the mark upon, or in
any physical or in any other relation whatsoever, to such goods;
(ii) in relation to services, shall be construed as a reference to the use of the mark as or as
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The following passages, from Pernod Ricard India Pvt Ltd v.
Karanveer Singh Chhabra32, classically delineate the principles on
the basis of which the Court is to examine whether there is likelihood
of confusion, in a trade mark infringement analysis:
"35. The average consumer test is a central standard in
trademark and unfair competition law. It assesses whether there
exists a likelihood of confusion between two marks, or whether a
mark lacks distinctiveness or is merely descriptive. The test is
grounded in the perception of the average consumer - a person who
is reasonably well-informed, observant, and circumspect, but not
an expert or overly analytical. As held by the European Court of
Justice in Lloyd Schuhfabrik Meyer v. Klijsen Handel BV33, the
average consumer forms an overall impression of a mark rather
than dissecting it into individual components.
35.1. A key feature of this test is the recognition that consumers
rarely recall trademarks with perfect accuracy. For example, this
Court in Amritdhara Pharmacy v. Satyadeo Gupta emphasized
that the comparison must be made from the perspective of a person
of average intelligence and imperfect recollection. Thus, minor
phonetic or visual similarities may cause confusion if the marks
share prominent or memorable features. The test also considers
that the degree of consumer attentiveness may vary depending on
the nature of the goods: greater care may be exercised when
purchasing luxury items than in the case of everyday consumer
goods.
35.2. The test is equally relevant to both inherent and acquired
distinctiveness. A mark has inherent distinctiveness if, by its very
form and appearance, it identifies trade origin to the average
consumer at the time of registration. A mark may acquire
distinctiveness if, through consistent and prolonged use, it becomes
associated by a significant portion of the relevant public with a
particular commercial source - even if the consumer cannot name
the source precisely. What matters is not that the consumer knows
the producer, but that the mark serves as an indicator of origin.
35.3. However, the test has limitations. In cases involving
product shapes or designs, where the features serve a technical
function or add substantial value, policy considerations may
override consumer perception. While the average consumer may
32 2025 SCC OnLine SC 1701
33 Case C-342/97; [2000] FSR 77, ECJ
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identify the essential characteristics of a product's shape or
configuration, their opinion is not determinative in assessing
registrability, especially where legal prohibitions against functional
or aesthetic monopolies come into play.
35.4. The doctrine of imperfect recollection, closely linked to the
average consumer test, emphasizes the importance of first
impression. Courts have cautioned against overly technical or
granular comparisons of trademarks [See: James Crossley
Eno v. William George Dunn34 and Aristoc Ltd. v. Rysta Ltd35,].
Instead, they have favoured realistic assessments that account for
hazy memory, indistinct pronunciation, and fleeting visual
impressions. Notably, invented or fanciful words are generally
more difficult to recall than common or descriptive ones, and
distinctive features are more likely to be retained in the consumer's
memory.
35.5. The foundational test for assessing deceptive similarity
remains the Pianotist Test, as laid down in Pianotist Co. Ltd's
Application36 by Justice Parker. Indian courts continue to apply
this holistic standard, which requires consideration of the visual
and phonetic similarity of the marks, the nature of the goods, the
class of consumers, and all surrounding circumstances. Justice
Parker framed the test as follows:
"You must take the two words. You must judge of them,
both by their look and by their sound. You must consider
the goods to which they are applied, the nature and kind of
customer who would be likely to buy the goods, and all the
surrounding circumstances. You must further consider what
is likely to happen if each of these trademarks is used in a
normal way for the respective goods. If, considering all
these circumstances, you come to the conclusion that there
will be confusion - not necessarily that one trader will be
passed off as another - but that there will be confusion in
the mind of the public leading to confusion in the goods,
then registration must be refused."
35.6. This multifactorial framework complements the modern
average consumer test, ensuring that the analysis of deceptive
similarity remains practical and context-sensitive. It focuses on the
overall commercial impression left by the marks, rather than
conducting a mechanical or analytical breakdown. Indian courts
have consistently adopted this approach in determining the
likelihood of confusion in both infringement and passing off
34 H.L. (E) 1890, June 19. Vol. XV. App. Cas. Page 252
35 1945 AC 68 (HL)
36 (1906) 23 RPC 774
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actions."
32.3 Sequelae to infringement
32.3.1Where infringement is found to exist, the consequences
envisaged by Section 28 follow.
32.3.2Section 28(1)37 confers, on the registrant of every validly
registered trademark, two rights.
32.3.3The first is the exclusive right to use the mark in relation to the
goods or services in respect of which it is registered. In other words,
the registrant can oppose or contest the use of the registered
trademark, in respect of the goods or services for which the mark is
registered by any other person. The exclusive right to use the mark
vests, and rests, with its registrant.
32.3.4The second right that Section 28(1) confers on the registrant of
a validly registered trademark is the right to obtain relief in respect of
infringement of the mark "in the manner provided by" the Trade
Marks Act. The manner in which relief can be obtained in cases of
infringement is provided in sub-section (1) of Section 13538. Sub-
section (1) of Section 135 of the Trade Marks Act permits a court to,
37 28. Rights conferred by registration.-
(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.
38 135. Relief in suits for infringement or for passing off.-
(1) The relief which a court may grant in any suit for infringement or for passing off referred
to in Section 134 includes injunction (subject to such terms, if any, as the court thinks fit) and at
the option of the plaintiff, either damages or an account of profits, together with or without any
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in cases of infringement, grant relief by way of injunction as well as
by way of damages and delivery up.
32.4 Sections 29 and 28 are, therefore, the provisions which deal
with infringement and the rights available to the proprietor of a
registered trademark which is infringed.
32.5 Sections 17 and 30
32.5.1The right to claim exclusivity in respect of a registered
trademark, as envisaged in Section 28(1) of the Trade Marks Act is,
however, subject to Section 1739, which applies to marks which
consist of more than one part, and which, therefore, may be referred to
as "composite" trademarks. Section 17(1) clarifies that the registration
of a composite trademark would confer, on the registrant, the right to
claim exclusivity over the whole registered trademark. Section 17(2)
makes the position clearer. Clauses (a) and (b) of Section 17(2), read
together, proscribe any claim of exclusivity in respect of a part of a
registered composite trademark, where
(i) the part is not separately registered as a trademark,
(ii) no application has been filed to register the said part as a
39 17. Effect of registration of parts of a mark.--
(1) When a trade mark consists of several matters, its registration shall confer on the
proprietor exclusive right to the use of the trade mark taken as a whole.
(2) Notwithstanding anything contained in sub-section (1), when a trade mark--
(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.
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separate trademark,
(iii) the mark is common to the trade or
(iv) the mark is non-distinctive in character.
32.5.2The various sub sections of Section 30 encapsulate exceptions
to Section 29. In other words, even if the act of the defendant satisfies
the ingredients of infringement as defined in one or more of the sub-
sections of Section 29, the act would nonetheless not amount to
infringement if it falls within one or more of the sub-sections of
Section 30.
32.5.3Of these, the only clause which is relevant for our purposes is
Section 30(2)(a)40, which excludes, from the ambit of "infringement",
use of a trademark to indicate
(i) the kind,
(ii) the quality,
(iii) the quantity,
(iv) the intended purpose,
(v) the value,
(vi) the geographical origin,
(vii) the time of production, or
(viii) other characteristics,
of goods. A mark which indicates the characteristics of the goods in
respect of which it is used is, therefore, not infringing by virtue of
Section 30(2)(a) even if it otherwise satisfies the ingredients of one or
40 (2) A registered trade mark is not infringed where--
(a) the use in relation to goods or services 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;
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more of the sub-sections of Section 29.
32.6 Exceptions to the right to obtain injunction
32.6.1Sections 28(3) and 33 to 36 envision circumstances in which no
injunction can be obtained against an infringing mark. In other words,
even if a defendant's marks is infringing within the meaning of
Section 29 and none of the exceptions to infringement as envisaged in
Section 30 applies, the plaintiff would still not be entitled to
injunction if the case falls within Section 28(3) or Sections 33 to 36.
32.6.2Of these provisions, we need to refer only to Sections 33(1)41
and 35.
32.6.3Acquiescence - Section 33
32.6.3.1 Section 33(1) deals with acquiescence. It disentitles the
proprietor of a registered trademark from opposing the use of a later
trademark, if he has acquiesced for a continuous period of five years
in the use of such later trademark, being aware of the said use.
32.6.3.2 Section 33(1) is confusingly worded. It starts with the
words, "Where the proprietor of an earlier trade mark has acquiesced
41 33. Effect of acquiescence.--
(1) Where the proprietor of an earlier trade mark has acquiesced for a continuous period of
five years in the use of a registered trade mark, being aware of that use, he shall no longer be
entitled on the basis of that earlier trade mark--
(a) to apply for a declaration that the registration of the later trade mark is invalid,
or
(b) to oppose the use of the later trade mark in relation to the goods or services in
relation to which it has been so used,
unless the registration of the later trade mark was not applied in good faith.
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for a continuous period of five years in the use of a registered trade
mark ..." The consequence, where acquiescence within the meaning
of Section 33(1) is found to exist, is that the proprietor of the earlier
trade mark cannot "oppose the use of the later trade mark in relation
to the goods or services in relation to which it has been so used".
32.6.3.3 This creates logistical difficulties in understanding the
provision. Under the Trade Marks Act, opposition, to the use of a
trade mark, can only be by way of an injunction under Section 135(1),
on the ground of infringement. Else, one would have to apply to
removal of the mark from the register of trade marks, under Section
47(1)42 (on the ground of non-use) or Section 57(1) or (2)43.
42 47. Removal from register and imposition of limitations on ground of non-use.--
(1) A registered trade mark may be taken off the register in respect of the goods or services
in respect of which it is registered on application made in the prescribed manner to the Registrar or
the [High Court] by any person aggrieved on the ground either--
(a) that the trade mark was registered without any bona fide intention on the part
of the applicant for registration that it should be used in relation to those goods or
services by him or, in a case to which the provisions of Section 46 apply, by the company
concerned or the registered user, as the case may be, and that there has, in fact, been no
bona fide use of the trade mark in relation to those goods or services by any proprietor
thereof for the time being up to a date three months before the date of the application; or
(b) that up to a date three months before the date of the application, a continuous
period of five years from the date on which the trade mark is actually entered in the
register or longer had elapsed during which the trade mark was registered and during
which there was no bona fide use thereof in relation to those goods or services by any
proprietor thereof for the time being:
Provided that except where the applicant has been permitted under Section 12 to register
an identical or nearly resembling trade mark in respect of the goods or services in question, or
where the [Registrar or the High Court, as the case may be,] is of opinion that he might properly be
permitted so to register such a trade mark, the [Registrar or the High Court, as the case may be,]
may refuse an application under clause (a) or clause (b) in relation to any goods or services, if it is
shown that there has been, before the relevant date or during the relevant period, as the case may
be, bona fide use of the trade mark by any proprietor thereof for the time being in relation to--
(i) goods or services of the same description; or
(ii) goods or services associated with those goods or services of that description
being goods or services, as the case may be, in respect of which the trade mark is
registered.
43 57. Power to cancel or vary registration and to rectify the register.--
(1) On application made in the prescribed manner to the [High Court] or to the Registrar by
any person aggrieved, the [Registrar or the High Court, as the case may be,] may make such
order as it may think fit for cancelling or varying the registration of a trade mark on the ground of
any contravention, or failure to observe a condition entered on the register in relation thereto.
(2) Any person aggrieved by the absence or omission from the register of any entry, or by
any entry made in the register without sufficient cause, or by any entry wrongly remaining on the
register, or by any error or defect in any entry in the register, may apply in the prescribed manner to
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32.6.3.4 A registered trade mark cannot, however, be infringing,
as we have already noted. There cannot, therefore, be any opposition
to use of a registered trade mark (except on the ground of passing
off). When, then, would the bar to injunction on the ground of
acquiescence, under Section 33, apply, as it applies only where the
plaintiff has acquiesced to the use, by the defendant, of a registered
trade mark?
32.6.3.5 Or are the words "registered trade mark" as employed in
Section 33 to be understood as the registered trade mark of the
plaintiff? Besides the fact that such a construction does not strictly
flow from Section 33, that would give rise to a further question -
Would Section 33 not apply where the defendant is using a
deceptively similar trade mark? If, therefore, a plaintiff acquiesces to
the use, by the defendant, of a trade mark which is deceptively similar
to the registered trade mark of the plaintiff for a continuous period of
five years, would, or would not, Section 33 apply?
32.6.3.6 These are all issues on which the statute is not clear, and
upon which the Court may, in an appropriate case, have to deliberate.
In the present case, as we would find hereinafter, no acquiescence can
legitimately be pleaded by Leayan, so that we need not enter further
into that thicket.
32.7 Section 35 - Descriptive marks cannot be injuncted
may make such order for making, expunging or varying the entry as it may think fit.
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32.7.1Section 35 proscribes an injunction against the use of a
defendant's trademark, if the said trademark is a bona fide use of
(i) the name of the defendant,
(ii) the place of business of the defendant,
(iii) the name of the place of business of the defendant,
(iv) the name of the predecessor in business of the defendant
or
(v) a description of the character or quality of the goods or
services in respect of which it is used.
32.8 The sustainability of the impugned judgment has to be assessed
on the basis of the above principles. We proceed, therefore, to apply
these principles to the facts before us.
33. The aspects of registration and infringement
33.1 It is not in dispute that, among others, Bata is the registered
proprietor of the word mark POWER and the device mark , in
Class 25, for "footwear included in Class 25" with effect from 7
March 1975. Class 25 is titled "clothing, footwear, headwear". The
Explanatory Note to Class 25, as contained in the Nice Classification
applicable for registration of trade marks, states that Class 25
"includes mainly clothing, footwear and headwear for human beings".
All footwear, therefore, falls in Class 25. The goods in respect of
which Bata's POWER word and device marks stand registered, and
the leather footwear for which Leayan uses the POWER FLEX mark,
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therefore, are both in Class 25.
33.2 Thus, Bata was the registered proprietor of the word mark of
POWER as a word as well as device mark, in Class 25 for footwear
with effect from as far as back as 7 March 1975. Leayan, on the other
hand, has no registration for any mark, including POWER FLEX, in
any class.
33.3 Thus, Leayan, cannot claim any right to use the mark POWER
FLEX either as its registered user or permissive user within the
meaning of Section 29(2)(b) of the Trade Marks Act.
33.4 The plea of difference in goods
33.4.1Leayan sought to contend that, as the POWER FLEX mark is
used for leather footwear and Bata's POWER mark is used for canvas
footwear, the goods are not similar, and there is no likelihood of
confusion between the marks.
33.4.2This plea was rightly rejected by the learned Single Judge on
two grounds.
33.4.3Firstly, Section 29(2)(b) does not require the rival marks to be
used in respect of identical goods. They may be used for identical, or
similar, goods. The word "similar" as used in Section 29(2)(b)
includes goods which are allied or cognate. In fact, with the
advancement and expansion of trade and commerce, the scope of the
expression "similar" as used in Section 29(2)(b) has expanded
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manifold. We are in an age in which, under one umbrella brand, goods
which are completely diverse and unconnected with each other may
be manufactured or sold under the same mark. In such a scenario,
canvas footwear and leather footwear have necessarily to be regarded
as "similar" goods, for the purposes of Section 29(2)(b).
33.4.4This conclusion would also stand fortified by the fact that both
kinds of footwear fall within Class 25.
33.4.5The learned Single Judge has also correctly held that, while
examining the aspect of similarity and likelihood of confusion, the
Court must take into account the possibility of scope for expansion of
the plaintiff's commercial enterprise. Simply put, Bata may today be
using the mark POWER for canvas footwear, but there is every
possibility of Bata expanding the range of footwear manufactured and
sold by it under the POWER brand to include leather footwear or any
other kind of footwear.
33.4.6This may be easily understood when one applies, to the present
case, the perception of the consumer of average intelligence and
imperfect recollection, who is the mythical personality from whose
point of view the aspect of likelihood of confusion between the marks
has to be assessed. There is every likelihood of such an average
consumer, who is aware of the POWER brand of Bata used for canvas
footwear, on coming across the POWER FLEX brand for leather
footwear, presuming that Bata might have expanded its reach to
include leather footwear. This likelihood of confusion stands
exaggerated by the similarities between the marks POWER and
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POWER FLEX. The mark POWER FLEX subsumes, in its entirety,
the POWER brand of Bata. An average consumer who is unaware of
the realities of the situation has every likelihood of believing that
POWER FLEX is a sub-brand of POWER, especially as both the
marks are used for footwear.
33.4.7In this context, it is also necessary to note that Section 29(2)(b)
does not inexorably require likelihood of confusion in the mind of the
public, for infringement to be found to exist. Even the likelihood of an
association between the marks would suffice. Applying this principle,
there is every likelihood of a consumer who comes across, who is
aware of Bata's POWER brand, used for canvas footwear, and later
comes across Leayan's POWER FLEX brand used for leather
footwear, believing an association between the marks. The consumer,
it must be remembered, is a man of imperfect recollection.
33.4.8The fact that Bata's POWER mark is used for canvas footwear
and Leayan's POWER FLEX mark for leather footwear, therefore, is
not of any substantial significance.
33.5 Two other principles, which apply while examining the aspect
of likelihood of confusion, and which further support the finding of
the learned Single Judge in that regard, required to be mentioned.
33.6 Marks not to be placed side by side
The first is that the aspect of infringement is not required to be
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examined by placing the rival marks side by side.44 The average
consumer must have come across Bata's POWER brand at one point
of time and, later, come across Leayan's POWER FLEX brand. The
Court, while assessing whether infringement has taken place, has to
examine the likelihood of confusion or association, in the mind of
such a consumer, when he chances across Leayan's POWER FLEX
brand after having known of Bata's POWER mark or come across
Bata's POWER mark at an earlier point of time.
33.7 Initial interest confusion
33.7.1The second aspect is that the likelihood of confusion or
association has to be examined from an "initial interest" point of
view.45 What is pivotal, therefore, is the initial impression that
Leayan's POWER FLEX mark creates in the mind of the average
consumer who has earlier come across, or who is aware of, Bata's
POWER mark. If, at first glance, initial impression that is created in
the mind of such a consumer is that he has seen the mark earlier, or
that the two marks may be associated in some way, that by itself
suffices to make out a case of infringement.
33.7.2In Shree Nath Heritage Liquor, the Division Bench of this
Court, speaking through Pradeep Nandrajog, J. has pithily referred to
the state of mind of such a consumer as one of "wonderment". If, on
coming across Leayan's POWER FLEX mark, the consumer of
average intelligence and imperfect recollection is placed in a state of
44 Refer Pernod Ricard India Pvt Ltd v. Karanveer Singh Chhabra, 2025 SCC OnLine SC 1701
45 Refer Pernod Ricard, Shree Nath Heritage Liquor, Under Armour Inc. v. Anish Agrawal, 2025 SCC
OnLine Del 3784 (DB)
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wonderment as to whether he has seen the said mark earlier, or
whether the mark which he has seen earlier is in any way associated
with the POWER FLEX mark, that constitutes infringement, with
nothing else required to be shown.
33.8 Applying these principles, we find ourselves entirely in
agreement with the learned Single Judge in her finding that there was
deceptive similarity between the POWER FLEX mark of Leayan and
POWER mark of Bata. As both the marks were used for goods which
were similar, there is also likelihood of confusion. The ingredients of
Section 29(2)(b) thereby, stands fully satisfied. A prima facie case of
infringement is, therefore, made out.
34. Defences as raised by Leayan - The "distinctive-descriptive"
see-saw
34.1 As we have already noticed, the inquisitorial exercise, in a trade
mark infringement action, does not end with the finding that the
plaintiff's mark is registered, and that the defendant's mark is
infringing. The Court has additionally to consider whether the case
falls within one of the exceptions to infringement, or to grant of
injunction.
34.2 Mr. Bansal has invoked two of these exceptions. He contends
that
(i) Bata's POWER mark is not distinctive, and
(xi) Leayan's POWER FLEX mark is descriptive in nature.
Mr. Bansal, thereby, invokes both Section 17(2)(b) and Section 35 of
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the Trade Marks Act.
34.3 We address these submissions individually, as they are
fundamentally different. Both are defences. However, Section
17(2)(b) is a defence which attacks the plaintiff's mark as lacking in
distinctiveness, whereas Section 35 is cited as a defence against
injunction of the defendant's mark, even if it were assumed to be
infringing. Section 17(2)(b), therefore, applies to the plaintiff's mark,
whereas Section 35 applies to the defendant's.
34.4 Re. plea that the POWER mark lacks distinctiveness - Section
17(2)(b)
34.4.1Though Section 17(2)(b) does not permit any claim of
exclusivity over a mark which is not distinctive, it does not contain
any guideline as to how to decide whether a particular mark is, or is
not, distinctive. The Trade Marks Act is, however, thankfully not
silent in this regard, as the answer to this query is to be found in
Section 9(1)(a)46 of the Trade Maks Act. Section 9 contains the
absolute grounds on which registration of a trademark may be refused.
Clause (a) of Section 9(1) does not allow registration of trademarks
which are devoid of any distinctive character. The expression "devoid
of any distinctive character" is explained, in the same clause, as "not
capable of distinguishing the goods or services of one person from
those of another person". There is no reason as to why this
46 9. Absolute grounds for refusal of registration.--
(1) The trade marks--
(a) which are devoid of any distinctive character, that is to say, not capable of
distinguishing the goods or services of one person from those of another person;
*****
shall not be registered:
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explanation for the expression "devoid of any distinctive character"
should not be applied to understand the expression "non-distinctive
character" in Section 17(2)(b).
34.4.2Thus, by virtue of Section 17(2)(b), no exclusivity can be
claimed over a mark which is not capable of distinguishing the goods
of one person from those of another. The aspect of distinctiveness, or
the absence of it, has, therefore, to be assessed not merely by
referring to the mark in vacuo, but in the context of the goods or
services for which it is used. A common dictionary word, which may
be part of daily usage, may become distinctive when used for goods or
services with which it has no immediate connection.
34.4.3We, in this context, are in entire agreement with the learned
Single Judge's observation that the word "POWER" does not evoke a
connect, in the mind, between the mark and footwear, as it may, for
example, evoke, if it were to be used in the context of boxing gloves.
While the mark POWER may, therefore, arguendo, not be distinctive
when used for an item such a boxing gloves or, for that matter, an
electric plug, it is distinctive when used for footwear.
34.4.4Leayan's contention that the mark POWER was lacking in
distinctiveness cannot, therefore, be accepted.
34.5 Re. plea that POWER FLEX is a descriptive mark, and cannot
be injuncted - Section 35
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34.5.1In the impugned judgment, the learned Single Judge has also
gone on to distinguish between descriptive marks and suggestive
marks. Marks which are descriptive are not capable of being
registered, in view of Section 9(1)(b)47 and cannot be injuncted
because of Section 35; however, marks which, though not descriptive,
are merely suggestive, may be registered, and can be injuncted. The
position in law, in this regard, stands settled by the judgment of the
Supreme Court in T.V. Venugopal v. Ushodaya Enterprises48.
34.5.2The learned Single Judge has referred to various tests that have
been evolved from time to time to decide whether a mark is
distinctive or suggestive. In the facts of the present case, we do not
deem any detailed discussion on that aspect to be necessary as, in our
view, the word POWER FLEX is not even suggestive of footwear.
The mark POWER FLEX does not bring, to mind, footwear. It cannot,
therefore, be regarded as "(descriptive) of the character or quality" of
the leather footwear of Leayan, within the meaning of Section 35.
34.6 Even if it were to be assumed that Leayan's POWER FLEX
footwear was flexible in nature, which is one of Mr. Bansal's
contentions, that would, at the highest, render the mark POWER
FLEX suggestive of the characteristics of the leather footwear used by
Leayan, and not descriptive thereof. The applicable test, to determine
47 9. Absolute grounds for refusal of registration.--
(1) The trade marks--
*****
(b) which consist exclusively of marks or indications which may serve in trade to
designate the kind, quality, quantity, intended purpose, values, geographical origin or the
time of production of the goods or rendering of the service or other characteristics of the
goods or service;
*****
shall not be registered:
48 (2011) 4 SCC 85
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whether a mark is descriptive, or suggestive, of the goods in respect of
which it is used, or neither, is, to our mind, the extent to which the
imagination must be strained to draw a connect between the mark and
the goods. If the connect is immediate, the mark is descriptive; if, by
straining the imagination, a connection can be found, the mark may be
suggestive; if, however, there is no connect at all - such as, for
example, the mark TODAY for perfumes - the mark is neither.
Illuminatingly, Pernod Ricard refers to marks such as Air India,
Mother Dairy, HMT, Windows, Doordarshan, LIC and SBI as being
descriptive.
34.7 As the mark POWER FLEX is not descriptive of the
characteristics of the leather footwear for which it was used by
Leayan, Leayan cannot claim the protection of Section 35.
34.8 Thus, as
(i) Bata's POWER mark cannot be said to be lacking in
distinctiveness and
(ii) Leayan's POWER FLEX mark is not entitled to the
protection of Section 35,
there is no statutory impediment against the grant of injunction in
favour of Bata and against Leayan for use of the mark POWER FLEX
in respect of footwear.
35. Re. plea of delay and acquiescence
35.1 One of Mr. Bansal's principal arguments was predicated on the
principles of delay and acquiescence. He submitted that Leayan has
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been using the POWER FLEX since 2010-11, i.e. for eight years
before the suit was instituted by Bata. During this period, Leayan
garnered considerable goodwill and reputation in the mark POWER
FLEX. Having thus permitted Leayan to acquire goodwill and
reputation in the mark POWER FLEX over an extended period of
time, despite knowing the fact that Leayan was using the said mark,
Bata was proscribed from seeking to injunct the mark at a belated
stage, on the principles of delay and acquiescence.
35.2 There are multifarious reasons why this submission cannot be
accepted, both of facts as well as of law.
35.3 No evidence of goodwill or reputation of POWER FLEX mark
of Leayan
35.3.1The first is that, as the learned Single Judge has correctly held,
the evidence of the mark POWER FLEX or Leayan having garnered
goodwill and reputation was sketchy. Mr. Bansal has taken serious
exception to the use of this expression by the learned Single Judge.
We, however, are in entire agreement with the learned Single Judge in
this regard.
35.3.2Mr. Bansal essentially sought to predicate his plea of goodwill
and reputation on
(i) newspaper advertisements
(ii) invoices,
(iii) TV advertisements and
(iv) the presence of over 135 stores of Leayan, pan-India.
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35.3.3As the learned Single Judge has correctly held, we are
concerned, here, not with Leayan's goodwill and reputation, but with
the goodwill and reputation of Leayan's mark POWER FLEX.
35.3.4When one examines the material on which Mr. Bansal has
placed reliance, in this context, the following picture emerges:
(i) Out of 97 newspaper advertisements, on which Mr.
Bansal placed reliance, only 10 newspaper advertisements have
dates printed on them and all of them have the same date, which
is 13 October 2013. No date of printing of any of the other
newspaper advertisements is visible. As such, it is unknown as
to when the said newspaper advertisements were issued.
(ii) Though Leayan has placed on record 81 invoices, the
mark POWERFLEX does not figure on even one of them. Mr.
Bansal sought to contend that it was a matter of trade practice
that invoices referred only to Article Numbers of the goods in
respect of which they were issued. No material, to support this
submission, is forthcoming. Nor is there any material on record
to connect the Article Numbers mentioned in the invoices with
the POWER FLEX brand of the Leayan. As such, the invoices
on which Mr. Bansal has placed reliance are of no value at all.
(iii) None of the TV advertisements, cited by Mr. Bansal, has
any reference to the mark POWER FLEX.
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35.3.5We, therefore, are of the view that, if anything, the learned
Single Judge has been charitable in her use of the word "sketchy"
with reference to the evidence placed by Leayan on record to
demonstrate goodwill and reputation of the mark POWER FLEX.
The material is, to our mind, as good as nil.
35.3.6Though in the context of passing off actions, the Supreme Court
has, in Brihan Karan Sugar Syndicate (P) Ltd v. Yashwantrao
Mohite Krushna Sahakari Sakhar Karkhana49 has held that "the
volume of sale and extent of advertisement made ... of the product in
question will be a relevant consideration for deciding whether the
appellant had acquired a reputation or goodwill". In the present case,
Leayan has not placed, on record, its sales figures or the promotional
expenses incurred by it in respect of sales of footwear bearing the
POWER FLEX mark, as would suffice to demonstrate acquisition of
goodwill and reputation.
35.3.7Thus, on facts, there is nothing to substantiate Mr. Bansal's
contention that the mark POWER FLEX, of Leayan had amassed
goodwill or reputation. Even on facts, therefore, the principle of
acquiescence, as advanced by Mr. Bansal, is without substance.
35.4 Plea not statutorily available as POWER FLEX mark is not
registered
35.4.1Besides, even statutorily, this plea is not available to the
petitioner. As we have already noted, the effect of acquiescence is
49 (2024) 2 SCC 577
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statutorily covered by Section 33 of the Trade Marks Act.
Acquiescence is a defence only for the proprietor of a registered trade
mark. A plaintiff, who has acquiesced to the use by a defendant, of its
registered trademark for a continuous period of five years or more
cannot, thereafter, seek to oppose use of the said mark by the
defendant for the said goods or services.
35.4.2Inasmuch as the Trade Marks Act itself restricts the availability
of the plea of acquiescence as a defence against injunction, only to the
proprietor of a registered trade mark, we are of the opinion that a mark
such as Leayan's POWER FLEX, mark not being a registered trade
mark, cannot seek the protection of Section 33.
35.5 No acquiescence in fact
Yet another reason why the plea of acquiescence is not available to
Leayan is the filing of the opposition by Bata, to Leayan's application
for registration of the POWER FLEX mark. Objection and
acquiescence cannot go hand in hand. One who objects, cannot be
said to acquiesce. The opposition, filed by Bata to Leayan's
application for registration of the POWER FLEX mark, amounts to an
objection to the use of the POWER FLEX mark by Leayan. Bata
having objected to the use of the POWER FLEX mark by Leayan, the
plea of acquiescence has necessarily to fail.
35.6 Delay and acquiescence no ground in view of Midas Hygiene
Industries
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35.6.1Besides, the plea that Bata cannot be granted injunction on the
ground of delay and acquiescence also stands defeated by the
judgment of the Supreme Court in Midas Hygiene Industries. Paras 5
and 6 of Midas Hygiene Industries read thus:
"5. The law on the subject is well settled. In cases of
infringement either of trade mark or of copyright, normally an
injunction must follow. Mere delay in bringing action is not
sufficient to defeat grant of injunction in such cases. The grant of
injunction also becomes necessary if it prima facie appears that the
adoption of the mark was itself dishonest.
6. In this case it is an admitted position that the respondents
used to work with the appellants. The advertisements which had
been issued by the appellants in the year 1991 show that at least
from that year they were using the mark laxman rekha on their
products. Not only that but the appellants have had a copyright in
the marks krazy lines and laxman rekha with effect from 19-11-
1991. The copyright had been renewed on 23-4-1999. A glance at
the cartons used by both the parties shows that in 1992 when the
respondent first started he used the mark laxman rekha on cartons
containing colours red, white and blue. No explanation could be
given as to why that carton had to be changed to look almost
identical to that of the appellant at a subsequent stage. This prima
facie indicates the dishonest intention to pass off his goods as those
of the appellants."
(Emphasis supplied)
35.6.2Mr. Bansal has sought to submit that the enunciation of the law,
in Midas Hygiene Industries, that wherever infringement is found to
exist, injunction must follow, and that delay cannot stand in the way
of grant of injunction, must be read as limited to cases of dishonesty.
He seeks to submit that a conjoint reading of paras 5 and 6 of Midas
Hygiene would lead to this conclusion.
35.6.3We do not agree. To our mind, the opening sentences in para 5
of Midas Hygiene Industries postulate an absolute proposition, which
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is that where infringement is found to exist, injunction must follow,
and delay in bringing the action before the Court is not a defence
against such injunction. The Supreme Court has only gone on to
clarify that where dishonesty is found to exist, the principle applies
with additional force. The judgment cannot, in any manner of
speaking, be read as limiting the applicability of the principle only to
cases of dishonesty.
35.6.4The exposition of law in para 5 of Midas Hygiene Industries is,
therefore, a complete answer to the proposition that a period of eight
years, which had elapsed between the commencement of user, by
Leayan, of the POWER FLEX mark, and the institution of the suit by
Bata, would operate as a bar to grant of injunction as sought by Bata
against Leayan. As the case is one prima facie of infringement, and no
statutory exception to grant of injunction applies, the decision in
Midas Hygiene Industries eminently justifies the grant, by the
learned Single Judge, of injunction in favour of Bata and against
Leayan.
35.7 Mr. Bansal's submission that Bata is not entitled to injunctive
relief against Leayan on the ground of delay and acquiescence too,
therefore, fails.
The Sequitur
36. The appellant has, therefore, failed to make out any case for us
to interfere with the impugned judgment of the learned Single Judge.
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Re. FAO (OS) (Comm) 193/2019
37. We now advert to Bata's appeal. Mr. Grover has objected to
(i) the refusal, by the learned Single Judge, to injunct the
use, by Leayan, of the tag line THE POWER OF REAL
LEATHER,
(ii) the deletion of CBH from the array of defendants, and
(iii) the permission granted, to Leayan, to exhaust the existing
stock subject to filing a monthly disposal statement.
38. On these aspects, our views are as under:
(i) We find no reason to interfere with the decision, of the
learned Single Judge, not to grant any injunction against the
use, by Leayan, of the tag line THE POWER OF REAL
LEATHER. It is clear, from the tag line as it is used by Leayan,
that there is no emphasis on the word POWER. That being so,
an average consumer would read, and recollect, the tagline as a
whole, as emphasizing the leather content of the footwear. He is
unlikely, merely because of the use of POWER as a part
thereof, to link the tagline to Bata's POWER range of products.
There is, therefore, neither any chance of confusion, or of
association, between the tagline THE POWER OF REAL
LEATHER and the mark POWER of Bata.
(ii) We agree, however, that CBH could not have been
deleted from the array of defendants. Even without a trial, or
any application under Order I Rule 10 of the CPC, the learned
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Single Judge, to our mind, ought not to have come to a final
conclusion that CBH was not a necessary or proper party. The
decision to delete CBH is, therefore, liable to be set aside.
(iii) The decision to allow Leayan to exhaust existing stock,
subject to furnishing a statement with the Court, was well
within the discretion vested in the learned Single Judge, and
does not result in any lasting prejudice to Bata. We see no
liberty, therefore, to interfere with this direction either.
39. Mr. Grover contends, however, that, in the garb of acting under
the said liberty, Leayan has been clearing and selling goods which are
far in excess of the stock available with it. He, therefore, prays that
Leayan be directed, at the very least, to deposit the sale proceeds with
this Court.
40. We are not inclined to examine either of these pleas, as they
would appropriately have to be urged by Bata by filing separate
applications before the learned Single Judge, in accordance with law.
We reserve liberty with Bata to do so.
Conclusion
41. Resultantly, both appeals are dismissed, except to the extent of
the direction to delete CBH from the array of defendants, which is set
aside.
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42. There shall be no orders as to costs.
C. HARI SHANKAR, J.
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