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33. Even if, arguendo, one were to presume that, for all the marks of the plaintiff, there is a disclaimer of "CHINA" and "BISTRO"

they shall, for all other purposes, be deemed to have been registered as separate trademarks.

Signing Date:05.08.2023 22:34:56 individually, the only consequence of such disclaimer, in my opinion, is that the plaintiff would not be able to urge infringement of a mark of another person solely because the said mark uses the word "CHINA" or the said mark uses the word "BISTRO". However, that would not inhibit the plaintiff from alleging infringement of the mark of another person on the ground that it is deceptively similar to the composite mark CHINA BISTRO when seen as a whole. Simply put, disclaiming exclusivity in respect of the individual parts of a mark would not ipso facto result in disclaiming exclusivity over the composite mark as a whole.

40. Mr. Sengupta further sought to contend that, as the words "CHINA" and "BISTRO" are individually bereft of any distinctive character, the former being the name of a geographical area and the latter being an often used expression for restaurants, cafes and the like, it would be for the plaintiff to show that the mark CHINA BISTRO is distinctive.

41. I am unable to agree with the said submission. Even if individual parts of a composite mark are by themselves not distinctive, the composite mark, which combines the individual non-distinctive parts together, may partake of distinctiveness.

31. Registration to be prima facie evidence of validity. - (1) In all legal proceedings relating to a trade mark registered under this Act (including applications under Section 57), the original registration of the trade mark and of all subsequent the plaintiff to claim exclusivity over the said combined/composite mark.

43. No material to that effect has been placed on record and no submission to that effect has been advanced by Mr. Sengupta. Even otherwise, plainly seen, I am unable to convince myself that the mark CHINA BISTRO is lacking in distinctiveness. It cannot be said that the mark CHINA BISTRO is an ordinary combination of two words, completely wanting in any element of inventiveness or ingenuity. Even if "BISTRO" is treated as a synonym for cafeteria or café, it is not an expression which is normally used. It may have been quite different if, for instance, the defendant's mark was CHINESE CAFÉ. The mark would then be plainly descriptive, and lacking in any element of distinctiveness which would distinguish it from any other Chinese eating house. The composite mark CHINA BISTRO, however, in my view, cannot be said to be lacking in distinctiveness, when seen as a whole, in the absence of any evidence or material to that effect led by the defendant.

47. Insofar Parakh Vanijya15, on which Mr. Sengupta placed reliance is concerned, I do not see that the said decision rules any way contrary to the decisions cited by Mr. Lall. In that case, having disclaimed exclusivity over the word "MALABAR", the plaintiff was seeking to urge infringement solely on the basis of the common word "MALABAR" between the mark of the plaintiff and the mark of the defendant. Having disclaimed exclusivity for "MALABAR", it is obvious that the plaintiff could not have alleged infringement solely on the basis of the common word "MALABAR" in the two marks. That is quite different from the case at hand in which exclusivity has been disclaimed only over the individual parts of the composite mark CHINA BISTRO and not over the composite mark itself.