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4. The plaintiffs claim to have been marketing and selling phones under the trademark „Aqua‟ in India since 2009 and have also expanded into the market of phone accessories such as earphones, mobile chargers, USB cables and mobile batteries. The plaintiffs claim that the mark „Aqua‟ was randomly coined and is an arbitrary mark in application to mobile phones and merits trademark protection.

5. As per the plaint, the product of the plaintiffs was launched in the year 2009 in India and was an instant hit amongst the general public. The plaintiffs claim its products have an edge over those of its competitors being of a superior quality and economically priced. The success of the launch of its phones in India has further motivated the plaintiffs to venture into foreign markets including Hong Kong, China, Nigeria, Nepal, Bangladesh and United Arab Emirates. As on the date of institution of the present suit, the plaintiffs were offering 12 different models of mobile phones under the mark „Aqua‟; all ranging from the price of Rs. 999/- to Rs. 3999/-.

19.11.Learned counsel has submitted that the reliance placed upon M. Thomas McCarthy, McCarthy on Trademarks and Unfair Competition, 4th Ed., Thomson West is misplaced as reputation is required in order to establish secondary meaning. He further submits that the law is well settled by Satyam Infoway (Supra) and Uniply Industries Ltd. (Supra), both of which pertain to arbitrary marks.

20. In her rejoinder arguments, Ms. Pratibha Singh, learned senior counsel, has sought to rebut the contentions by submitting on the following lines:

28. Now what remains to be seen is as to which category the mark „Aqua‟ falls? The word „Aqua‟ has Latin origins and means water [See Black‟s Law Dictionary, 9th Ed. (ed. Bryan A. Garner), West]. Water does not readily conjure up the image of mobile phones or describe its features and is as such an arbitrary mark in its application to mobile phones. Therefore, it is inherently distinctive, i.e. capable of distinguishing the goods of the plaintiffs and there is no need to show an acquired secondary meaning.

37. Accordingly, the first contention of the defendants must be rejected for three reasons; first, „Aqua‟ being a arbitrary mark in its application to mobile phones requires no proof of secondary meaning; second, mere filing of a search report without cogent and clear evidence of user cannot establish that the mark is common to trade; and third, as the defendants have themselves applied for registration of „Aqua‟, they cannot be permitted to argue that the same is descriptive or not capable of distinguishing the goods of the plaintiffs at this juncture.