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Bigtree Entertainment Pvt Ltd vs D Sharma & Anr - (High Court of Delhi) (21 Jan 2019)

Mere fact that, application for registration of a trademark was amended may not amount to relinquishment of any right to use the trademark

MANU/DE/0188/2019

Intellectual Property Rights

The present suit is filed by the Plaintiff seeking an order of permanent injunction to restrain the Defendants, their partners, proprietors, etc from in any manner using the mark “BOOKMYEVENT” or using the prefix “BOOKMY” as trade mark/trade name or as part of its corporate name, domain name or trading name in respect of online ticketing services or any similar services. Other connected reliefs have also been sought. The issue would be as to whether the mark "BOOKMY" has attained an exclusive meaning and the plaintiff can claim exclusive rights on the same.

The insistence of the Plaintiff is that, the Defendants cannot use the mark “BOOKMY” as prefix and should be restrained from using the same. It has been pleaded that such user would be contrary to the rights of the plaintiff in view of the fact that trademark “BOOKMYSHOW” stands registered.

The Plaintiff is using the mark “BOOK MY SHOW” and claims that the Plaintiff has earned a strong reputation in the market. Based on this, it has been pleaded that the prefix “BOOK MY” has attained exclusive meaning under which only the plaintiff can claim rights. It cannot be forgotten that “BOOK MY” is a common English term. Its link with booking for shows, events, films etc is but obvious. It is a common general term descriptive of the services which are sought to be provided, namely, booking of a show, event, movie etc. That apart a closer look at the mark shows that prima facie the visual effect of both Trade Marks is not the same in the minds of the buyers. Prima facie the colour scheme, the font used by the defendant are entirely different and people are unlikely to be misguided or confused by the said trade names and looks of the defendant’s trade mark.

Present Court agrees with the judgment of this court in Bigtree Entertainment Pvt. Ltd. vs. Brain Seeds Sportainment Pvt. Ltd. that prefix BOOKMY is not an invented word. In fact, it is an apt description of a business that is involved, namely, booking of tickets for shows, events, films, etc. The fact as to whether this prefix BOOKMY has been accorded a secondary meaning and distinctiveness can only be established after the parties have led their evidence.

The Plaintiff contended that, the Defendants have relinquished the use of the impugned trademark since filing of the suit in the field of booking of events. Simply because the application for registration of a trademark was amended may not amount to relinquishment of any right to use the trademark. The plea is completely misplaced. The plaintiff is seeking an injunction and must first make out a prima facie case. Plaintiff has failed to make out a prima facie case. There is no reason to grant any injunction order in favour of the plaintiff. Applications dismissed.

Relevant : Bigtree Entertainment Pvt. Ltd. vs. Brain Seed Sportainment Pvt. Ltd. and Ors. MANU/DE/5189/2017

Tags : INFRINGEMENT   INJUNCTION   GRANT  

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