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Make My Trip (India) Private Limited vs Make My Travel (India) Private Limited on 18 October, 2019
cites
Makemytrip (India) Private Limited vs Orbit Corporate Leisure Travels (I) ... on 13 December, 2017
22. The facts of the said case as recorded in the aforenoted order reveal that
Defendant therein approached the Court by way of an application under
Order 39 Rule 4 contending that the Plaintiff had prior knowledge of the
Defendant‟s predecessor-in-interest using the trademark „GetMyTrip‟ and
the Plaintiff had been doing business with the said predecessor-in-interest of
the Defendant under the mark „GetMyTrip‟ since 2011. This contention was
duly taken note of in paras 7 and 8 of the said decision which read as under:-
Cadila Healthcare Limited vs Cadila Pharmaceuticals Limited on 26 March, 2001
In the
case of Cadilla Healthcare Ltd. v. Cadilla Pharmaceuticals Ltd. 2001 PTC
541 (SC), the Supreme Court was deliberating on the question of
infringement in relation to two brand names "FALCITAB" and
"FALCIGO".
Amritdhara Pharmacy vs Satyadeo Gupta on 27 April, 1962
Referring to its earlier judgment in Amritdhara Pharmacy v.
Satyadev Gupta AIR 1963 SC 449, the Court held that for deceptive
resemblance, two important questions that need to be kept in mind are i)
who are the persons that the resemblance must be likely to deceive or
confuse and ii) what rules of comparison are to be adopted in judging
whether such resemblance exists. It was further held that confusion is
perhaps an appropriate description of the state of mind of a consumer who
on seeing a mark thinks that it differs from the mark on goods which he has
previously bought, but is doubtful whether the impression is not due to
imperfect recollection.
Sentini Bio Products Pvt. Ltd. vs M/S. Allied Blender & Distillers Pvt. ... on 6 July, 2015
17. Further, in Shree Nath Heritage Liquor Pvt. Ltd. v Allied Blender &
Distillers Pvt. Ltd. (2015) 221 DLT 359, this Court while dealing with the
marks OFFICER‟S CHOICE and COLLECTOR‟s CHOICE elucidated the
concept of similarity in idea of a trademark and use of synonyms as
trademarks. The Court elaborately discussed the different types of synonymy
observed in adoption of trademarks or trade names classifying the same into
absolute synonymy and relative synonymy. It was held that in case of
CS(COMM) 889/2018 Page 11 of 22
relative synonymy, words or phrases may be similar in certain contexts
while not in others and in such cases, where certain words which may not
be similar in every context but convey the same idea in a particular context,
similar brand name recollection impairment may be observed. Thus, it was
held that marks containing words with the same sense relation (or falling in
the same semantic field, or conveying the same or similar idea in the mind)
as that of previously existing marks are likely to be considered so similar as
to be refused registration or deemed to constitute infringement of the
previously existing trademark.
Corn Products Refining Co. vs Shangrila Food Products Ltd. on 8 October, 1959
In Corn Products
Refining v Shangrila Food Products AIR 1960 SC 142 also, the Apex
Court noted the concept of similarity of idea. In the said case, the Court was
dealing with the marks GLUCOVITA and GLUVITA and it was observed
that the idea of the two marks is the same as both convey the ideas of
glucose and life giving properties of vitamins and to a person of average
intelligence and imperfect recollection, the overall structural and phonetic
similarity and the similarity of the idea in the two marks is reasonably likely
to cause confusion.
Triumphant Institute Of Management ... vs Aspiring Mind Assessment Pvt. Ltd. & ... on 13 May, 2014
24. From the above, it can be easily discerned that there was an agreement
between Defendant‟s predecessor-in-interest and the Plaintiff, and this
crucial factor prevailed upon the Court to accept the plea of acquiescence
and to hold that the use of the mark „GetMyTrip‟ was within the knowledge
of the Plaintiff. In the present case, there is no such agreement on record and
the plea of acquiescence is premised merely on the basis of email
communications exchanged with booking customer care executives. Thus, I
cannot, at this stage, hold that the Plaintiff has acquiesced to the use of the
infringing marks by the Defendant. Similarly, the decision in Triumphant
Institute of Management Education Pvt. Ltd. v Aspiring Mind Assessment
Pvt. Ltd. (2014) 210 DLT 618, relied on by the Defendant, is distinguishable
CS(COMM) 889/2018 Page 19 of 22
on the facts and circumstances prevailing therein. In the said case, the
factum of concealment of material fact and acquiescence had been proved,
by the Defendants therein.
M/S. Hindustan Pencils Pvt. Ltd. vs M/S. India Stationery Products Co. And ... on 23 January, 1989
In Hindustan
Pencils Private Limited v. India Stationary Products Co. AIR 1990 Del 19,
this Court dealt elaborately with the question of delay and acquiescence. It
has been held that in order to claim the defence of acquiescence, there
should be a tacit or an express assent by the plaintiff to the defendant's using
the mark and in a way encouraging the defendants to continue with the
business. It is as if the plaintiff wants the defendant to be under the belief
that the plaintiff does not regard the action of the defendant as being
violative of the plaintiff's rights.
Dr. Reddy???S Laboratory Ltd. vs Reddy Pharmaceuticals Ltd. on 13 September, 2013
In Dr. Reddy Laboratories Pvt. Ltd. v.
Reddy Pharmaceuticals 2013 SCC OnLine Del 3626, the Court took note of
the fact that the owners of trademarks or copyrights cannot be expected to
run after every infringer and thereby remain involved in litigation at the cost
of their business time, but can wait till the time the user of their name starts
harming their business interests and starts misleading and confusing their
customers.
Emcure Pharmaceuticals Ltd vs Corona Remedies Pvt. Ltd on 10 September, 2014
In Emcure Pharmaceuticals Ltd. v. Corona Remedies Pvt. Ltd.
2014 SCC OnLine Bom 1064, the Bombay High Court extensively
discussed the defence of acquiescence as available to an alleged infringer of
trademark. It was held that a mere failure to sue without a positive act of
encouragement is no defence and is not acquiescence. Further, examining
the concept of "acquiescence", it was observed that acquiescence is a species
of estoppel, a rule in equity and a rule of evidence and it is essential to
the acquiescence doctrine that it is accompanied by an encouragement or an
CS(COMM) 889/2018 Page 20 of 22
inducement: he who possesses a legal right must have encouraged the
alleged violator of that right in acting to the latter's detriment, confident in
the knowledge that the former is not asserting his rights against
theviolator. Acquiescence is sitting by when another invades your rights and
spends money in the doing of it. It is conduct incompatible with claims of
exclusivity, but it requires positive acts, not mere silence or inaction (of the
stripe involved in the concept of laches). Acquiescence is not mere
negligence or oversight. There must be the abandonment of the right to
exclusivity.