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A trademark exists independently of the registration which merely affords a further protection under the Statute- DelhiHC

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High Court of Delhi dismissed application seeking for permanent injunction by the plaintiff against defendant, its director, officers, retailers, stockists, distributors, agents, representatives and employees from manufacturing, selling, offering for sale, advertising, providing services directly or indirectly dealing in goods and services under the registered mark ‘NO TURN’.

The Plaintiff named as “PEPS INDUSTRIES PRIVATE LIMITED” filed an application seeking a decree of permanent injunction against the Defendant i.e “KURLON LIMITED “ before the Hon’ble High court of Delhi. The Application was listed before the Hon’ble Ms. “JUSTICE MUKTA GUPTA”.

Brief facts is that the plaintiff filed a trademark application for registration of the mark “NO TURN‟ on proposed to be used as its trademark, where after plaintiff started using the mark, “NO TURN” in association with its mattresses. Plaintiff was granted registration. Thus, the plaintiff has registered trademark, “NO TURN” under Class-20 for mattresses, wall beds, adjustable beds, coir mats, spring mattresses, sofas, pillows, cushions, seats and other related products. Later on, the plaintiff came to know that the defendant has dishonestly adopted the trademark, “NO TURN‟. Hence, the plaintiff issued a cease and desist notice to the defendant. However, the defendant did not respond to the said notice and continued using the trademark despite a second notice. Afterwards, the defendant responded to the legal notice and claimed that it was the prior user of the trademark, “NO TURN‟. After the legal notice of the plaintiff, defendant filed an application on for registration of the trademark, “NO TURN‟ claiming user thereof which application has been objected to before the Registrar of Trademarks by the plaintiff. Defendant also filed an application for rectification/removal of the plaintiff’s registered mark, “NO TURN”. Plaintiff claims that besides being the registered owner of the trademark, “NO TURN”, the plaintiff has adopted and is in continuous use of the same since long which is evident from the trademark registration certificate, the orders and invoices of, “NO TURN” labels for a continuous period of around 11 years, the marketing and promotional material including brochures, steadily increasing yearly sales figure of the, “NO TURN” mattresses and the expenses on advertisements and promotion thereof.

Delhi High Court put reliance on the Supreme Court Judgement in (2016) 2 SCC 683 “S.Syed Mohideen vs. P. Sulochana Bai” case dealing with the right of the registered trademark holder vis-à-vis the other registered trademark or a prior user. Furthermore, the Hon’ble held that a passing off action can even lie against a registered proprietor of the mark sued upon. A trademark exists independently of the registration which merely affords a further protection under the Statute, the common law rights being left wholly unaffected and registration is a mere recognition of the rights pre-existing in common law and in case of conflict between two registered proprietors, the evaluation of the better rights in common law is essential as the same would determine whose rights between the two registered proprietors are better and superior.

However, the Court held that plaintiff is not entitled to the relief of injunction for the reason the mark “NO TURN” is a descriptive mark. Hence no interim injunction was granted to the plaintiff.

-India Legal Bureau 

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