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Trademark Application User Claim Date of Class and Status of Type No. and publication Goods registration date of in TM filling Journal 4102886 01.01.2017 07.09.2020 Class 35 Registered Dt.-28.02.1 on 9 23.2.2021, subsequently opposed by (DEVICE) the Petitioner on 30.05.2022 REKIN-SP 3541661 Proposed to 06.01.2020 Class 05 Registered (WORD) Dt.- be used on 04.05.17 01.09.2020 e. Respondent No. 1 contended that the mark 'REKIN' is a coined and fanciful word with no meaning in the English language and is, therefore, inherently distinctive. It is further asserted that, owing to extensive use, publicity and availability of products under the impugned mark 'REKIN-SP' and other REKIN formative marks on various third-party websites, the mark has acquired distinctiveness, goodwill and reputation within a short span of time, such that consumers exclusively associate the mark with Respondent No. 1.

40. Moreover, as held hereinabove, the Petitioner is not using the mark REXCIN as a source identifier on its products, and therefore, it is not associated as a trademark by the consumers. However, Respondent No. 1's mark REKIN-SP and its formative marks are prominently used on the all the pharmaceutical products of the Respondent No. 1, as a source identifier, and the consumers ordinarily would identity the products of the Respondent No. 1 with its impugned mark REKIN-SP and its formative marks.

53. Pending applications stand disposed of.

CS(COMM) 142/2023

54. This is an application filed by the Plaintiff under Order XXXIX Rule 1 and 2 CPC seeking a restraint against the Defendant from using the impugned mark REKIN-SP and its formative marks.

55. While disposing of the rectification petition, this Court held that the Petitioner failed to establish any use of the mark 'REXCIN' in relation to pharmaceutical products, holding that the Petitioner neither used 'REXCIN' as a trademark nor as a source identifier for pharmaceutical goods falling in Class 5 at any relevant time. On the date when Respondent No. 1 adopted and applied for registration of the mark 'REKIN-SP' in 2017, the Petitioner had no trademark registration or even a pending application in Class 5, and its subsequent registrations in other Classes in 2022 are of no assistance. The evidence on record, including invoices and product samples, showed that the Petitioner merely acted as a marketer for third-party pharmaceutical companies, with 'REXCIN' appearing only inconspicuously as a trade name, which does not constitute trademark use under the Act of 1999. In contrast, Respondent No. 1 has been held to be the bona fide and prior adopter and user of the mark 'REKIN-SP' and other REKIN-formative marks, which were prominently used on pharmaceutical products sold to end consumers by the Respondent No. 1.