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23. On the other hand, it was the submission of Mr. Anil Sapra, learned Sr. Counsel appearing for the defendant No.2 that the product in question in the present suit is a type of vaccine for Typhoid, being one of the three vaccines available for the disease, viz. Typhoid Conjugate Vaccine (TCV), Unconjugated Vi Polysaccharide (ViPS) and Live attenuated Ty21a Vaccine. The marks in question in the present matter are 'TYPBAR-TCV' and 'TCV' of the plaintiff and the mark 'ZYVAC-TCV' of the defendant No.2. The vaccine 'Typhoid Conjugate Vaccine', is commonly known world over, especially as part of medical journals and in the medical community as 'TCV'. Therefore, as per the 'Spectrum of Distinctiveness of Marks' propounded by McCarthy, the mark 'TCV' being a generic abbreviation of the product, as also being descriptive of the goods it relates to, is incapable of trade mark protection. So it, follows that generic marks i.e. marks that indicate a type / kind / variety of the goods being sold thereunder are incapable of acquiring distinctiveness even through years of use and have no trade mark significance.

24. He also stated that the mark 'TCV' is descriptive of the product in question, and therefore, cannot be granted exclusive protection under the law in the absence of acquired distinctiveness. He further submitted, 'Typhoid Conjugate Vaccine' is the name of the vaccine, which is commonly abbreviated as 'TCV' for ease of reference, such that all 'TCV' vaccines are generically and colloquially referred to as 'TCV'. He also stated that published scientific articles clearly refer to 'Typhoid Conjugate Vaccines' as 'TCV'. In this regard, he has relied on page 86 and Page 91@92, Volume III, plaintiff's documents; Pages 48@49, 64-66, 69@74,75,78,81, Volume IV Defendant no.2's Documents. Therefore, as per the 'Spectrum of Distinctiveness', the mark 'TCV' is generic, and incapable of being distinctive - as such, no party can claim exclusivity over the same. Further, a highly generic mark is incapable of trade mark protection (Ref:- Cadila Healthcare Limited v Gujarat Cooperative Milk Marketing Federation Limited & Ors, 2009 (41) PTC 336 (Del)) and any registration granted in respect of a generic mark will also not grant sanctity to the mark. The grant of a trade mark registration is only prima facie evidence of its validity and the presumption of prima facie validity of registration is a rebuttable presumption. In such cases, the Court has the power to go behind the registration, specially at the interim stage. Thus, an abbreviation cannot be used as a trade mark if it is a generic term and has clear generic connotations. In such cases, the defendant No.2 would have, as good a right to a descriptive title as the plaintiff. Further, the mark TCV is descriptive of the product in question, as it merely describes one of the three types of typhoid vaccines available. A descriptive mark can only be afforded protection in case it has acquired distinctiveness on facts.

e. Such being the case, third parties including defendant No.2 cannot be barred from using a descriptive and generic mark;
f. In fact, allowing the Plaintiff to enjoy exclusivity over a highly descriptive and generic mark such as 'TCV' would be contrary to public policy, as the natural effect thereof would be that honest traders such as defendant no.2 would not be able to inform the public at large that it is manufacturing a vaccine for the treatment of Typhoid. Such a chilling effect is highly undesirable Marico (supra);
According to Mr. Sapra, both the aforesaid principles remain unrebutted by the Plaintiff.

35. According to Mr. Sapra, Mr. Chandra during the course of arguments stated that the cases of Cluett Peabody (supra), Veerumal (supra) have no application in the present case since the mark 'TCV' is being used as part of 'TYPBAR-TCV'. According to him, the aforesaid contention of the plaintiff points directly towards the mala fide of the plaintiff, since it fails to answer the pertinent question which is: why has the plaintiff registered both the marks 'TYPBAR TCV' and 'TCV' when in fact it had no intention of using the mark 'TCV' per se. He stated that the plaintiff has failed to justify or answer the aforesaid question all throughout the pleadings and oral arguments, clearly evidencing that the registration over the mark 'TCV' is devoid of merit. According to him, it was contended on behalf of the plaintiff during the course of the hearing that the fact that the defendant No.2's mark is 'ZYVAC-TCV' is immaterial since the whole mark cannot be copied with the addition of another word with it. Taking the example of the mark 'TATA', it was stated that "xyz TATA" would still be an infringement. According to Mr. Sapra, the aforesaid argument is entirely misplaced, while comparing two competing marks, the 'essential features' of the marks are to be seen. Reliance is placed on the Supreme Court judgment in Ramdev Food products v. Arvindbhai Ramabhai Patel, (2006) 8 SCC 726. Owing to the generic nature of the mark 'TCV', it is an inescapable conclusion that the essential and dominant feature of the Plaintiffs mark is 'TYPBAR' and not 'TCV'. Furthermore, the essential feature of the mark of the defendant No 2 is 'ZYVAC', since the defendant No. 2 manufactures and sells numerous medicines under the 'ZY' prefix, indicating its origin from defendant No. 2 and none else. Thus, the analogy drawn with TATA trade mark is erroneous, since TATA is the essential and dominant feature in the mark of the proprietor, which, if used by any other party along with other words would indeed constitute infringement, whereas 'TCV' standalone is a generic mark and is standalone not being used by the plaintiff, disentitling it from being the essential feature of the plaintiffs mark.