Similarity of marks is an issue that trademark law in India has
consistently dealt with over time, thus evolving crucial
principles. As per judicial dicta, there should be only one
trademark, one source & one proprietor. Thus, it is neither
permissible nor advisable to use a mark similar to a registered
mark. The foremost criteria used by authorities to make out a case
of similarity or deceptive similarity, is whether any confusion
would be caused in the mind of an unwary purchaser (a common
prudent person) However, Courts as well as the trademark
legislation has allowed use of similar marks, where the mark has
been adopted honestly and bona fide, and has been used for
a sufficiently long period of time. The time period for the use of
the mark to be considered as one under honest and concurrent use is
undefined in the Act, however judicial pronouncements have rendered
a minimum period of 5-6 years to qualify such use. .
In the Delhi High Court very recently in the case Star Bazaar
Pvt Ltd vs. Trent Ltd the issue of honest and concurrent use have
come for deliberation. A company named "Star Bazaar Pvt.
Ltd." (Plaintiff) carrying on business of retail in the name
and style of "Star Bazaar" in a departmental store at
South Delhi area came to know by an advertisement published in the
Daily English Edition of the Bombay Times, The Times of India, that
the company named Trent Ltd (Defendant) is using" Star
Bazaar" the trade mark "Star Bazaar" of the Star
Bazaar company in Mumbai (Andheri). Later the search revealed that
the Trent company is also using trade name "Star Bazaar"
in Ahmedabad and Bangalore, and very soon is going to open a new
store in the outlets of Delhi .
Star Bazaar company has filed a suit for permanent injunction
and for claiming damages on the ground of passing off and prayed
for restraining the other party to the suit from using trade mark
"Star Bazaar" as it is an invented and coined word of
Star Bazaar company which cannot be used by anyone else. Star
Bazaar contended that the other party to the suit is a very big
monopolistic house associated with TATA limited and the Star Bazaar
company has being buying various goods of the other party to the
suit off the shelf and on counter from its retail showrooms,
therefore the other party to the suit should have constructive
knowledge of the trademark of Star Bazaar company. It has been
further contended that the other party to the suit has dishonestly
adopted the trademark "Star Bazaar", and this deception
and confusion is bound to result into the loss of the Star Bazaar
company as its customers are likely to believe that the goods being
sold by "Star Bazaar" of the Trent company were
originating from the house of Star Bazaar company as the trade
channel of both the parties were same.
The Trent company has given all the details of its
advertisements cost and figures and records of sale from financial
year 2004 to 2008, it has also given the details of all its stores
existing in various parts of the country. The Trent Company being a
TATA enterprise and the goodwill acquired by it, was based on high
quality of goods and services associated with TATA group, and the
other party to the suit cannot claim exclusivity in the respect of
the name "Star Bazaar" any where in India and further
contended that it was the Trent company who has coined the word
"Star India Bazaar" and later "Star
Bazaar" for its hyper market stores and also made
applications to the trademark registration authorities for its
registration, and the said trademark is a registered one in the
name of the Trent company since 2003.
The court after hearing both sides view held that Trent company
doing its business in the name of "Star India Bazaar" and
later on "Star Bazaar" in 2007, there is no evidence that
shift of the defendant from 'Star India Bazaar" to
"Star India" was because of goodwill being enjoyed by
Star Bazaar company in Delhi. Further the court, also mentioned
that the trademark of Trent company could only have been registered
after it was being advertised in trademark journals inviting
objections, but it seems that the other party to the suit has no
knowledge of it nor it had intentions to get it's own trade
name "Star India", it did not took into notice of
trademark of other party and started its business under same trade
name. It is therefore a case of concurrent use of one trademark
by two parties in two different parts of the country, unaware of
each other. Hence the application stands disposed off.
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