The trade name we use and the
mark we see is what lends uniqueness to a trademark. To
facilitate this, not only do establishments create patterns and
designs, but also play with words, creating expressions that
one may not have else put to normal usage. There are occasions
when these very coined words become words of generic usage,
while others when they stand out to represent a certain quality
and standing in the market. On such a happening, the bane walks
in to ride over the boon- deception vide phonetic and visual
D'zine Garage Pvt. Ltd,
in the business of online communication claims to be one of the
oldest interactive agencies. They are exponents in the field of
online communication management for a diverse array of
industries. The issue in contention includes their core content
management system "Brew Master", which enables
creation, management and deployment of virtually any type of
content across multiple websites or interfaces. They claim that
their service mark is a coined word invented by them and they
are the first one to adopt D'zine as a predominant
feature of a service mark, corporate name and domain name in
the world in respect of web designing and internet computer
business. According to them the mark is unique, distinctive and
has been responsible for attracting customers throughout the
country. They propound to have acquired tremendous goodwill and
reputation by the extensive use of the mark
"D'zine Garage" with the predominant feature
D'zine. They state to have made huge investments in
terms of advertising and registered and used the same as part
of their corporate name as well as domain name. Their mode of
business uses the internet as a platform to acquire clients and
They asserted that they became
aware of the use of the service mark by D'zine
Café, involved in the field of online communication, web
designing, multimedia presentations etc. They also averred that
such an adoption was deliberate in a calculated attempt to cash
on the reputation of D'zine Garage. However,
D'zine Café was called upon to resist the use of
D'zine as a service mark. They also stated that the
similarity in the line of business between the two parties lead
such use to constitute infringement.
contended on the lines of absence of jurisdiction of the High
Court of Madras, and that they had no billings, bank accounts
or business facilities in India. They argued that the word
D'zine is common and a universally corrupted and
abbreviated form of the word. They also stated that a Google
search would provide over 1,90,000 search options using the
term D'zine. They prayed that the suit had been
instituted on frivolous grounds to destroy the business
reputation and hence the suit be dismissed.
The Court examined the various
averments, also observing the erroneous registration number
submitted by D'zine Garage. The Court however
acknowledged that there was no record to depict as to when the
D'zine Café started its business.
The Court ultimately ruled that
this was a case of "Phonetic Similarity". They opined
that D'zine was not a generic word, nor did it carry
distinctive reference to a particular trade, thus losing its
distinctiveness and falling into common use and hence
publici juris. The Court noted that the two parties
being in the same stream did strengthen the chances of
confusion amongst clients. The Court also highlighted that
D'zine Café never deniedthe mark being put to
use by them, but only asserted that others also used the term
"D'zine". The Court ruled in favour of
D'zine Garage in the absence of a denial from
D'zine Café of having taken advantage of the
repute acquired by the mark.
This decision of
D'zine Garage Pvt. Ltd. v. D'zine
Café FZE 2008 (36)614 (Mad) is one amongst
several, in a prominent line of dealings of the court.
Reiterating the previously held dicta, the Court has only been
successful at reinforcing the principles laid down by it, thus
strengthening the prevalent regime of trademark law in
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