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1 - 10 of 17 (0.75 seconds)Kabushiki Kaisha Toshiba (Toshiba ... vs Toshiba Appliances Co. And Ors. on 8 December, 2005
In Kabushiki Kaisha Toshiba (Toshiba Corporation) v. Toshiba
Appliances Co. the advertisements in question were coupled with the fact of
maintenance of service centers in India for the product imported into India.
Therefore, it was not as if the mark was not used in relation to goods which
were available in India.
Hardie Trading Ltd. And Anr vs Addisons Paint And Chemicals Ltd on 12 September, 2003
Hardie Trading Ltd. v. Addisons Paint and
Chemicals Limited (supra) was a case of rectification and the question of
prior continuous user under Section 34 of the Act was not in issue. It was
alleged that there had been no use of the mark between 1972 and 1977. It
was, however, shown that the registered proprietor had taken steps during
this period to enter into an agreement with another marketer to keep the
mark alive. The mark of the registered proprietor was also continuously in
use in England and Australia. In those circumstances, it was held that there
was no intention to abandon the registered mark. The question there was not
whether the issuance of an advertisement could itself constitute the use of a
mark. Secondly it is really in the context of rectification proceedings that
the Supreme Court held that there had been no abandoning of the mark
despite goods not being available in India. It did not dispense with the
requirement of proving continuous prior user of the mark. Thirdly, the
requirement of Section 2 (2) (c) of the 1958 Act was also that the goods
must come into existence at some point in time. In the considered view of
FAO (OS) 334/2008 Page 19 of 22
this Court, therefore, the judgment in Hardie Trading Ltd. does not help the
case of the Defendant.
Wander Ltd. And Anr. vs Antox India P. Ltd. on 26 April, 1990
30. The decision in Wander Ltd. & Anr. v. Antox India (P) Ltd. also does
not help the Defendant. That was a case of passing off and not infringement.
Consequently, there was no occasion for the Supreme Court to interpret
Section 34 of the TM Act. In any event, in the said case, the Plaintiff had
been manufacturing the goods under an agreement with the Defendant. The
Defendant had been using the trade mark and had got it registered before
entering into an agreement with the Plaintiff. The agreement was rescinded
and thereafter the Plaintiff filed a suit against the Defendant on the basis of
continuous prior user. It was held that the Plaintiff was not entitled to
injunction as the balance of convenience was not in the Plaintiff‟s favour. To
that extent, the said judgment in fact would be in favour of the Plaintiff here,
since the Defendant here has not been able to prove continuous prior user.
Section 41 in The Trade Marks Act, 1999 [Entire Act]
The Code of Civil Procedure, 1908
Uniply Industries Ltd vs Unicorn Plywood Pvt. Ltd. & Ors on 1 May, 2001
Uniply Industries v. Unicorn Plywood, AIR 2001 SC 2083,
was a case of passing off where Section 34 was not being interpreted. Apart
from advertisements, the trial court had found that the Defendant was using
the trade mark for roller printing/screen printing on the board itself and,
therefore, granted the injunction in favour of the Defendant. The Supreme
FAO (OS) 334/2008 Page 20 of 22
Court noted that it was not clear whether the advertisement was followed up
by goods with the mark being marketed and noted that the courts should
have been more cautious in granting an injunction.