Irrespective of being big brands
or smaller players, the awareness about protecting
one's intellectual property is on the rise. As
disputes, forages and court litigations rise, this sphere of
law is becoming busier each passing day. While the tug of war
to rightly be conferred with ones rights is on, the case of
Kalpana Sharma v. Personal Care System [2008
(37) PTC 231] is just one such instance amongst the ongoing
The matter at hand deals with
the trademark "PYRAMID VASTU", whereby Kalpana
Sharma, alleged Personal Care System of having infringed her
intellectual property. Claiming to be an inventor and long user
of the same, Sharma placed reliance upon the certificate issued
by the Trademarks Registry. Sharma also averred her
co-plaintiff Pundit R.K. Sharma to be renowned in the fields of
astrology, vastu shastra, gemology etc. Reliance was placed on
books, periodicals, products and services to depict the
goodwill and popularity amassed amongst the general public in
relation to the mark. They alleged Personal Care to have
adopted the mark on account of the increasing popularity of
their books and publications. They further stated that the
prominent use of the mark "PYRAMID VASTU" was in
order to deceive and confuse the public into believing that the
publication was that of Sharma's. The counsel for
Sharma contended that enough material had been placed on record
in order to constitute a prima facie case.
Personal Care reverted to this
stating that they had oblique reasons for adopting the mark
deliberately. A submission propounding Personal Care to be the
prior user was also made. They stated that while they began
manufacturing in 1976, while the evidence on record placed by
Sharma showed the marks in conjunction to have been used as
late as 1997. They further asserted that they were bona fide
users of the mark, in as much as the copyright of Sharma lay
vested in the literary works and not artistic works.
Sections 12, 28 and 34 of the
Trademarks Act, 1999 were examined. The Court opined that in
the event of a prima facie case of deception being established,
as under Section 29, the Court would proceed to evaluate the
necessary grant of the relief. The Court also noted that the
rule was subject to two exceptions engrafted under Section 28
and 34 would come into play. As under Section 28, in the event
of both parties being owners of registered trademarks, an
infringement action would not follow, but their rights inter se
for action of passing off could be maintained. Section 34,
elucidating the second exception, enacts that the proprietor or
registered user of a trademark cannot interfere or restrain the
use of an identical trademark by any person with or resembling
it in relation to goods for which that person or predecessor in
title has continuously used that trademark from a date prior to
the use of the first mentioned trademark in relation to those
goods by the proprietor or predecessor-in-title.
The Court enumerating a plethora
of decisions in the regard, and reiterating the relevant facts,
held that the use of "VASTU PYRAMID" by Personal Care
did not call for any ad interim order, since they had
established their stand as a prior user successfully.
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