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Peps Industries Private Limited vs Kurlon Limited on 16 March, 2020 cites

N.R. Dongre And Ors vs Whirlpool Corporation And Anr on 30 August, 1996

A trademark is ordinarily used in relation to goods of a manufacturer. A trademark can be registered but ordinarily registration is not granted if the mark falls under sub-sections 1(a) to 1(c) of Section 9. The proviso however, provides for entitlement to registration although ordinarily not permissible under Sections 9 (1) (a) to (c), provided that the mark has acquired a distinctive character as a result of its use prior to registration or is otherwise a well known trademark. Registration is only prima facie evidence of its validity and the presumption of prima facie validity of registration is only a rebuttable presumption, see para 31 of N.R. Dongre Vs. Whirlpool Corp. 1995 (34) DRJ 109 (DB). The right conferred by registration for exclusive use of the trademark in relation to goods is if the registration is valid and which flows from the expression "if valid" occurring in Section 28. The expression "if valid" has been CS(COMM) 174/2019 Page 31 of 39 inserted for the purpose that post registration an aggrieved person is entitled to apply for cancellation under Section 57 of the Act even if no suit is filed alleging infringement of the registered trademark. In case a suit is instituted, the court, once there is already a pending action seeking cancellation of the trademark, will stay the suit till the final disposal of the cancellation/rectification proceedings. The court however is still entitled to, in spite of registration, pass any interlocutory order as it deems fit, including but not limited to, granting the injunction or dismissing the prayer for injunction. If no cancellation proceedings are pending as on the date of filing of a suit for infringement if the court is satisfied with regard to the plea of invalidity of registration (this language of Section 124(1) (a) (i) co-relates to the expression "if valid" as occurring in Section 28) then the court may raise an issue in the suit and adjourn the case for three months after framing the issues in order to enable the defendant to apply to the Appellate Board for rectification of the register. Even in the circumstances where the court stays the suit for three months and permits a party to apply for cancellation/rectification, the court can pass any interlocutory order as it thinks fit under sub-section 5 of Section
Supreme Court of India Cites 8 - Cited by 347 - Full Document

S. Syed Mohideen vs P. Sulochana Bai on 17 March, 2015

5. Learned counsel for the defendant contends that the defendant is using the trademark since the year 2007 prior to the filing date of the application of the plaintiff wherein the mark „NO TURN‟ is proposed to be used, thus, the defendant is clearly protected being a prior user. Further the defendant uses the „NO TURN‟ mark along with its brand KURLON which is a well- established and reputed brand in mattresses and hence there can be no confusion. Reliance is placed on the decisions reported as (2016) 2 SCC 683 S. Syed Mohideen vs. P. Sulochana Bai and 2019 SCC OnLine Del 7644 Intercity Hotel GMBH vs. Hotel Intercity Delhi & Ors.
Supreme Court - Daily Orders Cites 21 - Cited by 102 - A K Sikri - Full Document

Intercity Hotel Gmbh vs Hotel Intercity Delhi & Ors on 13 March, 2019

5. Learned counsel for the defendant contends that the defendant is using the trademark since the year 2007 prior to the filing date of the application of the plaintiff wherein the mark „NO TURN‟ is proposed to be used, thus, the defendant is clearly protected being a prior user. Further the defendant uses the „NO TURN‟ mark along with its brand KURLON which is a well- established and reputed brand in mattresses and hence there can be no confusion. Reliance is placed on the decisions reported as (2016) 2 SCC 683 S. Syed Mohideen vs. P. Sulochana Bai and 2019 SCC OnLine Del 7644 Intercity Hotel GMBH vs. Hotel Intercity Delhi & Ors.
Delhi High Court Cites 22 - Cited by 2 - J Nath - Full Document

Century Traders vs Roshan Lal Duggar Co. on 27 April, 1977

33. Fourthly, it is also a well-settled principle of law in the field of the trade marks that the registration merely recognises the rights which are already pre-existing in common law and does not create any rights. This has been explained by the Division Bench of the Delhi High Court in Century Traders v. Roshan Lal Duggar & Co. [Century Traders v. Roshan Lal Duggar & Co., 1977 SCC OnLine Del 50 : AIR 1978 Del 250] in the following words: (SCC OnLine Del para 10) "10. „16. ... First is the question of use of the trade mark. Use plays an all-important part. A trader acquires a right of property in a distinctive mark merely by using it upon or in connection with his goods irrespective of the length of such user and the extent of his trade. The trader who adopts such a mark is entitled to protection directly the article having assumed a vendible character is launched upon the market. Registration under the statute does not confer any new right to the mark claimed or any greater rights than what already existed at common law and at equity without registration. It does, however, facilitate a remedy which may be enforced and obtained throughout „the State and it established the record of facts affecting the right to the mark. Registration itself does not create a trade mark. The trade mark exists independently of the registration which merely affords further protection under the statute.
Delhi High Court Cites 9 - Cited by 239 - Full Document

Hardie Trading Ltd. And Anr vs Addisons Paint And Chemicals Ltd on 12 September, 2003

Section 34 thus provides for specific requirements which relate to (i) the nature of the goods or services in relation to which the mark is used; (ii) the nature and character of use;(iii) the person who must use; and (iv) the date from which the mark should have been used. Section 2(2)(b) provides that in the Act, unless the CS(COMM) 174/2019 Page 18 of 39 context otherwise requires, any reference to the use of a mark is to be construed as a reference to the use of printed or other visual representation of the mark. Any reference to the use of a mark 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. The Supreme Court has interpreted these words in the context of section 46(1)(b) in Hardie Trading Ltd. v. Addisons Paint and Chemicals Ltd, (2003) 11 SCC 92 : AIR 2003 SC 3377."
Supreme Court of India Cites 14 - Cited by 58 - R Pal - Full Document

M/S. Veerumal Praveen Kumar vs M/S. Needle Industries (India) Ltd. And ... on 24 August, 2001

In Veerumal Praveen Kumar v. Needle CS(COMM) 174/2019 Page 19 of 39 Industries (India) Pvt. Ltd., 2001 (21) PTC PTC 889 (Delhi), a Division Bench of this Court emphasized that a trade mark does not arise from the mere use of a word or words or a formula or a mark. It had to be shown that in relation to particular goods, there is a course of trading and that a goodwill connecting the trader with the goods by the reason of the trade mark under which the goods are marketed has resulted. It was observed: "it follows that where, in relation to particular goods, there is no such course of trading as to give rise to goodwill, there is no interest to be protected by a trademark and no such mark can subsist in vacuo."
Delhi High Court Cites 25 - Cited by 37 - S K Kaul - Full Document

Kamat Hotels (India) Limited vs Royal Orchid Hotels Limited And Another on 5 April, 2011

The expression "LOW ABSORB" is quite clearly a common descriptive expression/adjective. The expression "LOW ABSORB " is not a coined word and at best it is a combination of two popular English words which are descriptive of the nature of the product as held by the Division Bench in Cadila Healthcare Ltd. (supra) case that such adoption naturally entails the risk that others in the field would also be entitled to use such phrases. Low Absorb is not an unusual syntax and the same can almost be said to be a meaningful part sentence or phrase in itself. The expression "LOW ABSORB" surely and immediately conveys the meaning of the expression that something which absorbs less, and when used with respect to edible oil, it is descriptive in that it refers to less oil being absorbed or low oil being absorbed.
Bombay High Court Cites 22 - Cited by 16 - D Y Chandrachud - Full Document

M/S.Heinz Italia & Anr vs M/S.Dabur India Ltd on 18 May, 2007

However this is not and cannot /should not be so for a trademark which is a descriptive word mark. Some CS(COMM) 174/2019 Page 29 of 39 colour has to be taken for the word „distinctive‟ as found in the proviso to Section 9 from the expression „well known trademark‟ which follows the distinctiveness aspect as found in the said proviso. Courts should ordinarily lean against holding distinctiveness of a descriptive trademark unless the user of such trademark is over such a long period of time of many many years that even a descriptive word mark is unmistakably and only and only relatable to one and only source i.e. the same has acquired a secondary meaning. A case in point is the use of „Glucon-D‟ for 60 years in the recent judgment in the case of Heinz Italia and Another Vs. Dabur India Ltd. (2007) 6 SCC 1. A period of 60 years is indeed a long period of time and thus distinctiveness of the descriptive word mark used as a trademark was accepted, albeit in a tweaked form of the normal descriptive word „Glucose‟. Therefore, when the descriptive trademark is used only by one person undisturbed for a very long period of time, without anyone else attempting to use the trademark during this long period time, a case can be established of a descriptive word having achieved distinctiveness and a secondary meaning.
Supreme Court of India Cites 10 - Cited by 77 - H S Bedi - Full Document
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