India: "CHRONICLE"- A Common English Term And Thus No One Can Claim Exclusivity To Use It

Last Updated: 9 June 2011
Article by Sonam Lhamu Bhutia

In the case of Chronicles Publications (P) Ltd. v. Chronicle Academy Pvt. Ltd, Chronicles Publications (Plaintiff) alleged Chronicle Academy (Defendant) of passing off their trademark "CHRONICLE" and thus prayed for an injunction to restrain the Defendant from such use.

The Plaintiff is a reputed publisher carrying on its business under the name of "Civil Services Chronicle". They have been involved in publishing various magazines for coaching/guidance purposes used for various competitive examinations, since 1992. It was contended by the Plaintiff that their trade name 'CIVIL SERVICES CHRONICLE', 'CHRONICLE YEAR BOOK 2001' have been registered in India. Further, it was mentioned that the Plaintiff had started a coaching academy under the name of "CHRONICLE IAS ACADEMY", which was in operation for 2-3 years before it was shut down.

The Defendant is a coaching center using the trade name 'CHRONICLE ACADEMY PVT. LTD.' with an identical style of writing the mark. The Plaintiff became aware of this fact through a brochure or Information Bulletin published by the Defendant.

The Plaintiff alleged that the said use of the mark by the defendant was done with mala fide intentions blatantly attempted to cheat the public. Further, the use of such mark being used identically as its name and in the publications, had affected the reputation of the plaintiff and the customers had associated the mark with plaintiff's publication.

It was argued by the plaintiff that a descriptive trademark should be entitled to protection if it has assumed a secondary meaning. It is their case that the words CHRONICLE or CIVIL SERVICES CHRONICLE, were associated with the plaintiff because of its long use and considerable efforts and investments, that if it was used by anyone in the relevant field, i.e. of imparting knowledge, it was capable of amounting to representation that it belongs to plaintiff. Further plaintiff stated that the intention of the defendant was to pass off their goods/services as that of the plaintiff and such use amounts to commercial invasion and piracy of the plaintiff's trade name.

It was also contended that the said trademark is a well-known trademark under Section 2(1)(zg) of the Trade Marks Act, 1999. Further, the class of user of the goods and services offered by the plaintiff and defendant were the same, i.e. students and candidates wishing to avail of these services to appear successfully in the Civil Service examinations. Hence, the act of the defendant amounted to passing off.

The Defendant absented himself from the proceedings.

The Court observed that Plaintiff was not the registered owner of the word "CHRONICLE", except in the case of a year book. In addition, the Court was watchful of the fact that the impugned word was a common word, which means a periodical. The Plaintiff in the context of the services offered by them use the word quite literally. The Court further opined that the word is common, a dictionary one and is also generic or descriptive as it conjures up the image of the goods or services the word mark caters to.

The Court referred to the case of SBL Limited v. Himalaya Drug Company, wherein it was held that no one can claim exclusive rights to use a generic word, abbreviation, or acronym which has become publici juris. Another case where it was held that common, generic or descriptive words do not automatically evoke Court's protection unless they acquire a secondary meaning was Rhizome Distilleries P. Ltd. & Ors. v. Pernod Ricard S.A. France &Ors.

The Court stated that it was essential for the court to rely on hard reality and it was the obligation on the Plaintiff failed to prove that due to the defendant's action, confusion was likely to be caused, and merely relied on averments. Further, the court opined that it was mindful of the fact that the Plaintiff's claim for injunction based on the Defendant's use of the mark "CHRONICLE" fell under Section 29 (5), in respect of goods and services of the same or identical kind. However, in this case, the defendant is not in the business of publishing periodicals and thus is not in the same business as the Plaintiff.

Also, the Court noted that the Plaintiff had not established that the word mark had acquired distinctiveness so as to compel the Court to conclude that the use of the word by the Defendant is likely to dilute its reputation.

In light of the above resons, the Court concluded that the Plaintiff was not entitled to a decree of permanent injunction, accordingly, the suit was dismissed.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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