India: NSTA POWER vs. AMCO INSTA POWER – Suit For Declaration

Last Updated: 27 March 2006
Article by Manisha Singh Nair

Tractors and Farm Equipment Ltd is a reputed manufacturer of tractors and farm equipments. They started a division to manufacture and market tubular and flat batteries to be used in UPS, Inverters etc. Amco Batteries limited is an associate company. Amco Batteries Limited granted a licence in favour of the Tractors and Farm Equipment Ltd to use the trademark AMCO.

The appeal filed was in pursuance of the suit filed for declaration that the expression "INSTA POWER" is descriptive, referring to "INSTANT POWER" and that the respondent, K.S. Sunil Kumar cannot claim monopoly over the two words asserting an exclusive right and for permanent prohibitory injunction restraining against the use of the expression. Further more, the prohibitory injunction was to prevent the Sunil Kumar from threatening the Tractors and Farm Equipment Ltd of taking legal action for the use of the expression "AMCO INSTA POWER" in any manner. A claim for liquidated damages amounting to Rs. 1,00,000 was also made.

The Trial Court dismissed the suit finding that the phrase "INSTA POWER" was in use since 1998 and that Tractors and Farm Equipment Ltd was using its trademark, the word "AMCO", even though it was not prominently written. It seemed likely that the public would be deceived by such a representation Sunil Kumar claimed that he had already applied for the registration of the words "INSTA POWER".

Tractors and Farm Equipment Ltd was using the trademark in conjunction with the registered trademark AMCO and its logo. Therefore, a composite term is being used, and not the term INSTA POWER per se. The court held that the term INSTA POWER is an abbreviated form of Instant Power provision of which is the aim of the batteries manufactured by the Tractors and Farm Equipment Ltd.

Sunil Kumar issued a legal notice to Tractors and Farm Equipment Ltd. claiming that they were renowned manufacturers of storage batteries and that the owners of the trademark INSTA POWER. The Tractors and Farm Equipment Ltd was called upon to give up the use of the trademark, failing which legal action was proposed.

Tractors and Farm Equipment Ltd contended that the issue of the notice was a threat u/s 120 of the Trade and Merchandise Marks Act, 1958 Further they said that they were not using the term INSTA POWER alone but AMCO INSTA POWER and that there existed no likelihood of deception or confusion. It was also argued that INSTA POWER was a generic term, used by many people and that the Sunil Kumar could not claim proprietary over a generic expression.

Sunil Kumar, in his written statement said that the registration of the trademark lay pending before the Registrar of Trade Marks, Chennai. He also stated that even if the Tractors and Farm Equipment Ltd is using a composite trademark, it is violation of this trademark, and that the Tractors and Farm Equipment Ltd is only a subsequent user and that the suit is not maintainable u/s 120 of the Trade and Merchandise Marks Act, 1958.

The court declared that the suit was maintainable. On the merits of the case, the trial Court found that the suit was not entitled to use the trademark even as a composite trade mark. This was reviewed u/s 58 of the Trade and Merchandise Marks Act, 1958 according to which the Tractors and Farm Equipment Ltd is not entitled to add or alter the trademark. To invoke the remedy u/s 27(2) Trade and Merchandise Marks Act, 1958 w.r.t passing off, it is not necessary that the trademarks be registered. The possibility of the public being deceived by using the expression INSTA POWER in big prominent letters was considered. Tractors and Farm Equipment Ltd was not entitled to get a prohibitory declaration as prayed for. The claim for damages was also found against.

The decision of the trial court was held to be wrong as it ignored Section 34 of the Trade and Merchandise Marks Act, 1958. It was also said to be wrong in stating that the remedy availed by Sunil Kumar was legal and was a groundless threat. It also contended that it was wrong in saying that the Tractors and Farm Equipment Ltd had no case. It also stated that the trial court should have granted the relief prayed.

Tractors and Farm Equipment Ltd said that the trial court had gone wrong while applying S-58 Trade and Merchandise Marks Act, 1958.According to the counsel the only issue that must be addressed is whether the term INSTA POWER is a generic term or not and whether the Tractors and Farm Equipment Ltd has a cause of action u/s 120 of the Trade and Merchandise Marks Act, 1958.

The Respondent contended that S-120 of the Trade and Merchandise Marks Act, 1958 contemplates a suit for declaration to the effect that it threats are unjustifiable. It was further said that in the plaint, the declaration is sought if the term INSTA POWER is a descriptive term and that the respondent cannot claim any monopoly over the said words. It is also contended that the Registrar of Trademarks is a competent authority to give registration and since the matter is pending before the Registrar, the trial court was justified in not entering a finding on that aspect.

The point for consideration whether Tractors and Farm Equipment Ltd was justified in filling a suit u/s 120 of the Trade and Merchandise Marks Act, 1958 was contemplated by the court and held that they were justified in filing a suit for injunction under the said section. The court also held that the trial court was wrong is dismissing the suit on finding that the use of the term AMCO INSTA POWER by Tractors and Farm Equipment Ltd, would be a mode of deceiving the public. Thus both the points were held in favour of Tractors and Farm Equipment Ltd. The appeal was allowed. Though the case was with regard to damages, no contentions were made by either of the parties. Hence in this matter the prayer was not allowed.

© Lex Orbis 2006

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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.