The plaintiff in this case is a well known Company Pidilite [popular for Fevicol], they claimed that they had been using the mark LEAKGUARD since 1999 for solvent cement as a liquid chemical. The defendants also claimed to have been using the mark LEAKGUARD for similar/identical products since 2005. The Plaintiff's applied for registration of the Labelmark containing the words LEAKGUARD in 2008 and in the year 2009 the defendants too applied for the registration of the aforementioned mark. It is also interesting to note that it was in the year 2009 that the plaintiff gained awareness about the defendant using a similar/identical mark. Soon after, a cease and desist notice was sent to the defendants followed by a denial by the defendants and finally, a suit in 2010. The plaintiffs claimed that since they had been the prior users of the mark they were the sole proprietors of the mark LEAKGUARD. The plaintiffs produced invoices from 1999 to show their use of the mark it was also claimed that the mark had gained distinctiveness in the sense that the consumers on hearing LEAKGUARD would automatically be reminded of the plaintiff's product. The Court upon analyzing the invoices produced by the plaintiff which show that there has been prior use but the mark in question is a descriptive one. The Court ruled that with regards to the passing off action for a descriptive mark it is necessary to establish that such mark has become distinctive and acquired a secondary meaning, along with a prior use claim. The suit was ultimately dismissed by the Court on account of the plaintiffs' failure to make a prima facie case of passing off.
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