In the competitive world of business, it is natural for the rival traders to adopt and apply different tactics to boost up their own business. The real aim of the trademark is to reflect the bondage between the proprietor and the product. Similarities in mark are one of the challenges that are constantly posing a problem and the Judiciary has over a time framed up guidelines to test the extent of similarity.
But it is interesting to watch the legislative vision in section 120 of the Trade and Merchandise Act, 1958 and section 60 of the Copyright Act. Both the sections provide scope for initiating legal actions against groundless threats. One such petition was entertained by the Delhi High Court in Manoj Kumar Maheshwari v. Tips and Toes cosmetics Pvt. Ltd 2007 (34) PTC 121 (Del.)
Manoj Kumar filed a suit for permanent injunction and declaration by invoking section 120 of Trademark and Merchandise Act, 1958 and section 60 of the Copyright Act, 1957 against the treats given by the defendant to institute legal proceedings. The plaintiff carries on the business of selling bindi under the trademark ‘SUPREME SUHAG’ and Tips and Toes under the name and mark ‘SHILPA’. The case of Manoj Kumar is that Tips and Toes are threatening him to stop trading under the trademark ‘SUPREME SUHAG’ or else to face the legal consequence. Manoj Kumar alleges that the threats are groundless, misconceived and malicious and contents that his trademark does not infringe or violate any of the rights under the Trademark Act or Copyright Act and that he had every right to trade under the trademark ‘SUPREME SUHAG’. The case was proceeded ex parte as Tips and Toes did not appear in the matter.
Manoj Kumar contends that he was carrying on the business since 1986 under the said trademark/label and has applied for registration of the same in 2002. It is further contended that he had given wide publicity to the mark through various publicity channels and hence has acquired excellent goodwill and reputation.
The court is convinced from the plaint and the documents produced that there was no similarity of the mark and hence Manoj Kumar’s mark would not infringe Tip Toes trademark. The Court is convinced that there exist a prima facie case and hence the suit for injunction is decreed where by Tips and Toes is directed to desist by directing the defendant from giving such threats.
The main aim of law is the protection of rights. The legislative out look is reflective from the fact that it provides for provisions to ward off unnecessary legal threats.
© Lex Orbis 2007
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