Trademark infringement most commonly involves the issues such as
likelihood of confusion; counterfeit marks and dilution of marks.
Likelihood of confusion occurs in situations where consumers are
likely to be confused or mislead about marks used by two different
parties. This issue was brought forth for deliberation in the case
Khurshid Ahmed Bhat v. Haji Bashir Ahmed Bhat 2010(42)PTC 248
(J& K) , which appealed an order by the Trial Judge, allowing
temporary injunction. The case holds prominence since it reiterates
that registration of a trademark is not the sole criteria to
determine infringement of trademark.
Haji Bashir Ahmad Bhat claimed to be a proprietor of a small
scale unit namely M/s Haji Bashir Ahmad Bhat and Sons involved in
maufacturing, processing, packing and sale of tobacco and allied
products (Naswar), with its head office located at Jamalata,
Srinagar. Haji Bashir Ahmad Bhat further contended that Khurshid
Ahmed Bhat had been maufacturing, storing and selling inferior
quality products in the market, and marks/packing have been
fraudently tailor made to be deceptively similar to that of
marks/packings of Haji Bashir Ahmad Bhat and causing immense damage
and loss to them. In this endeavour, the learned trial judge had
passed an ex parte ad interim order imposing temporary injunction
on Khurshid Ahmed Bhat to restrain them from using the marks
"New Mour Marka", "Green Star Brand" and
"Green Star Marks".
Khurshid Ahmed Bhatt contended that the order under appeal was
illegal because the trial judge failed to consider the contentions
raised by them in the application seeking vacation of the ad
interim order. They further contended that there existed no
resemblance between the packaging and Trade Marks of the products
being manufacured and sold in the market by the two parties.
Further, it was contended that the interim relief granted by the
learned trial judge is beyond the the relief sought for the main
suit and the trial judge could not pass the order impugned in the
However Haji Bashir Bhatt contended the trademark adopted by the
Khurshid Ahmed Bhatt to be deceptively similar to those of the
trademark adopted by them and registered by the competent authority
under the Trade Mark Act, 1999. They further averred that they wee
registered user of trade mark "Mour Marka", "Star
Brand" and "Star Marks"as under the provisions of
Trade Mark Act 1999.
The Court held that whenever there is a case of infringement of
trademark, the Court should not only consider the factum of
registration of trade mark with the competent authority under Trade
Marks Act, 1999 but should also consider the relative strength of
the case of competing parties. The court stated that due
consideration to the similarities and dissimilarities of the
trademarks was also necessitated. In viw of the trial Judge's
decision, he opined that the two trademarks had not been comapred
except making reference to the words "New or Green" and
also he had not examine the similarities and dissimilarities.
The court also observed that the court in such cases the test of
to phonetical, visual and ocular similarity must be applied. It was
opined thatorders which have potential of affecting right to carry
on trade, occupation and business and right to earn livelihood,
such orders cannot be passed, without approaching the problem
projected in the strict compliance of law occupying the field as
these rights are Fundamental Rights guaranteed under article 19(1)
(g) and 21 of the Constitution. In this view, the impugned order
was set aside by the court and the trial judge was directed to re
consider the matter in view of the observations made in the
judgment and to pass orders in accordance with law after hearing
the parties, within a period of one month.
This article enunciates the recent, much awaited, and landmark judgment delivered on September 16, 2016 by Hon'ble Delhi High Court throwing light on the important provisions of the Copyright Act, 1962.
The Patents Act 1970, along with the Patents Rules 1972, came into force on 20th April 1972, replacing the Indian Patents and Designs Act 1911. The Patents Act was largely based on the recommendations of the Ayyangar Committee Report headed by Justice N. Rajagopala Ayyangar. One of the recommendations was the allowance of only process patents with regard to inventions relating to drugs, medicines, food and chemicals.
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