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Rajesh Chugh and Ors. Vs. Chhavi Poplai and Ors. - (High Court of Delhi) (23 Jan 2019)

Owners of trademarks are not expected to run after every infringer


Intellectual Property Rights

Application has been filed under Order 39 Rule 4 CPC on behalf of the Defendants No. 1 and 2 for vacation of the ex parte ad interim injunction order passed by present Court in an application for interim injunction filed by the Plaintiffs. The Plaintiffs submitted that, the mala fide intent of the Defendant nos. 1 to 4 is apparent by the manner in which they have given prominence to the word 'Nizam's' in their logo with the words New' and 'Kababs and Biryani' being non-distinctive and being depicted in negligibly small font. Plaintiffs further states that the Defendant nos. 1 to 4's unauthorised adoption of the trademark 'Nizams' in the name of their restaurant 'New Nizam 's Kababs and Biryani' is bound to cause confusion and deception amongst the public that, the Defendant nos. 1 to 4 are somehow connected, affiliated or sponsored by the Plaintiffs and result in an unjust enrichment to the defendant nos. 1 to 4.

Defendant No. 1 having applied for registration of the trade mark Nizam's cannot today contend that the word Nizam's is incapable of protection or registration. It is not open to the Defendant to approbate or reprobate. It is further settled law that dictionary and historical words are capable of protection. Even though a generic word like ARROW cannot be used as a mark for sale of arrows, yet it can be used as a mark for shirts--for which it would be considered an arbitrary or fanciful mark. Consequently, the word Nizam's is capable of protection.

No case of concealment is made out as the Kolkata party has confined its registration and use of the mark Nizam's to the territory of West Bengal. In any event, the Plaintiffs cannot argue the case on behalf of the Kolkata party. Present Court is further of the view that, the owners of the trade marks are not expected to run after every infringer and thereby remain involved in litigations. If the impugned infringement is too trivial or insignificant and is not capable of harming the plaintiff's business interest, Plaintiff may overlook or ignore petty violation till it assumes alarming proportions.

The Supreme Court in Midas Hygiene Industries (P) Ltd. & Anr. Vs. Sudhir Bhatia & Ors., has held that, in case of infringement of a trade mark, normally an injunction must follow. It was further held that mere delay in bringing action is not sufficient to defeat grant of injunction in such cases.

Since in the present case, Defendant has copied the Plaintiffs' registered mark, present Court is of the view that, the ex parte injunction order dated 31st August, 2018 needs to be continued till the disposal of the suit. Accordingly, application filed by the Defendant is dismissed.

Relevant : Midas Hygiene Industries (P) Ltd. & Anr. Vs. Sudhir Bhatia & Ors., MANU/SC/0186/2004


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