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India: Legal Recognition / Enforcement of WellKnown Marks in IndiaA Service Marks PerspectiveLast Updated: 13 July 2005Article byAshish GosainFox Mandal & Co

With the rise and growth of the services sector in India, Trade marks have evolved into uncharted realms of regulatory issues.Therefore, it is never understated that the understanding of Trademark and passing-off law is to be revisited in terms thereof.This coupled with Franchising emerging as a vehicle of foreign investment in areas like consumer goods in last few decadesraised novel and intricate issues of protection of good will of marks possessing international or transborder reputation. The riseand spread of transnational corporations in liberalised economies like India have underscored the issue in concept and reality.To begin with, a look at the international developments help us put any legal framework in appropriate perspective.

Although there is no specific indication within the Agreement, it appears that trademarks having international repute in otherjurisdictions be accorded with a national treatment no less favourable than those owned by its own nationals.

In order to further understand the concept and definition of well known marks, we refer to the definition underArticle 6 bis of theParis Convention as incorporated in various legal systems. Under Section 56 of the Trade Marks Act, 1994 of Englandstates1that:

i. the applicant be a member of a Convention country; orii. is domiciled in , or has a real and effective industrial or commercial establishment in, a convention country,

whether or not that person carries on business, or has any goodwill, in the United Kingdom; and references to the proprietor ofsuch trade mark are to be construed accordingly.

Earlier, the law as stated in the celebrated British decision in the Crazy Hors e2case was in effect requiring the existence of use

or commercial activity in the particular jurisdictions3where relief was sought, in light of the territorial nature of the rights

provided by trademarks. However, certain jurisdictions had divergent views even then, as was the case of Hongkong4where

international reputation was recognised.

In this back drop of International developments we shall study the Indian legal position on this aspect.

Position Of Law In India With Respect To Well-Known Marks

To begin with there are two aspects to the scope of protection of Well-Known Marks in India, which are:

Determination of a mark as a well-known mark has to be done in accordance with certain criteria outlined below; [Asper Trade Marks Act, 1999]

Establishment of "Bad faith" in the registration of a mark violative of rights in well-known mark.

In India, to begin with, under the Trade Marks Act,1999, use of the mark is neither a relative nor absolute grounds for refusal ofregistration of a mark.

Further, Section 2 (1) (zg) of Trade Marks Act, 1999 defines a well-known trade mark as " in relation to any goods or

services, means a mark which has become so to the substantial segment of the public which uses such goods orreceives such services that the use of such mark in relation to other goods or services would be likely to be taken asindicating a connection in the course of trade or rendering of services between those goods or services and a personusing the mark in relation to the first mentioned goods or services."

The protection to well-known marks has been accorded by enshrining the concept as a relative ground of refusal of registrationof a trademark. Section 11 (2) of the Trade Marks Act, 1999 states that:

(2) A trade mark which-

a. is identical with or similar to an earlier trade mark; andb. is to be registered for goods or services which are not similar to those for which the earlier trade mark is registered in

the name of a different proprietor,

shall not be registered if or to the extent the earlier trade mark is a well-known trademarkin India andtheuse of the later mark witho ut due cause wou ld take unfair advantage of or be detrimental to thedistinctive character or repute of the earl ier trade mark .
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An interesting aspect outlined in sub-section (3) of Section 11 of the Trade Marks Act, 1999 is another relevant considerationthat works to the assistance in protection of well-known trade marks.

(3) A trade mark shall not be registered if, or to the extent that, its use in India is liable to be prevented -

a. by virtue of any law particular the law of passing off protecting an unregistered trade mark used in

the course of trade; or

b. by virtue of law of copyright .

Sub section (4) of the said provision states that:

(4) Nothing in this section shall prevent the registration where the proprietor of the earlier mark or other earlier right consents tothe registration, and in such case the Registrar may register the mark under special circumstances under section 12.

Further the explanation states that:

Explanation- For the purposes of this section, earlier trade mark means

a. a registered trade mark or convention application referred to in section 154 which has a date of application earlierthan that of the trade mark in question , taking account, where appropriate, of the priorities claimed in respect of the

trade marks;b. a trade mark which, on the date of the application for registration of the trademark in question, or whereappropriate, of the priority claimed in respect of the application , was entit led to protection as a well-known

trade mark .

Subsection (5) requires that registration can be refused on these grounds if and only if ob jection is raised on the

groun ds stated above in opposit ion p roceedings.

Determin ation Of Well-Know n Marks- Some Factors Of Consideration

Now the determination as to what is a well-known mark has been based on the following factors mentioned insu b-section (6)of section 11, Trade Marks Act, 1999 which reads as follo ws :

(6) The Registrar shall, while determinin g wh ether a trade mark is a well-known trade mark , take into accoun t any fact

which h e considers relevant for determinin g a trade mark as a well-known trade mark including-

i. the knowledge or recognit ion of that trade mark in the relevant section of the public including

knowledge in India obtained as a result of prom otion of th at trade mark ;

i i . the duration, extent and geographical area of any use of that trade mark;

i i i . the duration, extent and geographical area of any promo tion of the trade mark , including

advertis ing or public ity and presentation, at fairs or exhibit ion of good s or services to which the

trade mark applies;

iv. the duration and geographical area of any registration of or any application for registration of that

trade mark under this Act to th e extent they reflect the use or recognit ion o f that trade mark;

v. the record of successful enforcement of rights in that trade mark, in particular, the extent to which

the trade a mark has been recognised as a well-know n trade mark by any c ourt or Registrar under

that record.

Sub section relates to the determination of kno wledge outl ined in clause (i) of sub-section (6) of section 11 of

Trade Marks Act , 1999. It shall take into accou nt-

-The numb er of actual or potential consum ers of the goods or services;

-The numb er of persons involved in the channels of distribution o f the goods or services;

-The business circ le dealing w ith those goo ds or s ervices,

Subsection (9) does not require that for a trade mark to be a well-known one that-

- it has been used in India;

- That the trade mark has been registered;

- that the application for the registration has been fi led in India;


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(a) that the trade mark is well know n in; or

(b) has been registered in; or

(c) in respect of which an application for registration has been fi led in any jurisdictio n

other than India; or

- that the trade mark is well known to the public at large in India.

While considering an application for registration of a trade mark and op posit ion fi led in respect thereof, the

Registrar sh all-

(i) protect a well-known trade mark against the identical or similar trade marks;

(ii) take into consideration the bad faith involved either of the applicant or the opponent affecting the rightrelating to the trade mark.

Thus, it is clear that once bad faith of the applicant in filing an application for registration can be shown, then, even aregistered trade mark granted before the commencement of the Trade Marks Act, 1999 violative of rights in a well-known mark can be refused protection.[ sub-secti on (11) of section 11 of th e Trade Marks Act,1999]

Relevant Jud icial Doctrines:

In order to understand how a mark can be determined to be a well-known mark, let us look at the Doctrine oftransborder reputation postulated by the courts in this regard. We shall state the legal position before thecommencement and Trade Marks Act, 1999 in order to ascertain the factors considered to establish whether a trademark is a well-known mark.

In a decision of the Division Bench of the Bombay High court5, the division bench held that:

" We must express our diss ent with the view taken in this case. In our judgement it is not p ossible toconclude th at the goodwil l o r the reputation stands extinguish ed merely because the goods are not available

in the country fo r some dur ation. It is necessary to note that the goodwil l is not lim ited to a particular

country because in the present days, the trade is spread all over the world and the goods are transported

from o ne country to anoth er very rapidly and on extensive scale. The goodwil l acquir ed by the manufactureris not n ecessari ly limited to the country where the goods are freely available because the goods though not

available are widely advertised in news papers periodical, magazines and in other m edias . The result is that

though th e goods are not available in the country, the goods and the mark un der which they are sold

acquires wide reputation. Take for example, the televis ions, and Video Cassett recorders m anufactured by

National, Sony o r other well Japanese concerns. These televisions and V.C.Rs are not imported in India andsold in op en market becauseof trade restrict ions, but is it possible even to suggestthat the word " National"

or "Sony" has not acquired reputation in this country? In our judgement, the good wil l or reputation of goods

or marks does not depend on its availability in a particular country. It is possible that the manufacturer maysuspend their business activ it ies in a country for short duration but th at fact would no t destroy the

reputation or good wil l acquired by the manufacturer. An identical view was taken by divis ion bench of Mr

Jus tice S.K Desai and Mr. Jus tice Bharu cha in a judgem ent dated July 24,1988 in App eal No. 368 of 1986.The

question for cons ideration before the divis ion bench was whether the goodwil l in trade mark

"7OCLOCK"stood extinguished because of non-availabil i ty of blades wi th the m ark in India after year1958.the divis ion bench turned do wn the claim by point ing out variou s reasons and we are in entire

agreement with the observations made in the judgement made in the judgement on this aspect"

The Whirlpool case6considered the concept for the first time in detail. Here the plaintiff-corporation was carrying on

business in several countries, had not renewed registration for trademark in respect of class covering washingmachines due to foreign trade restriction in India prevalent after 1977 and thus the registration had lapsed. Theplaintiff-Company proceeded to file a suit for passing-off against the defendants. An injunction was granted by theDelhi High court (reaffirmed by the Supreme Court

7) The doctrine of " transborder reputation" was recognised

outlined and reliance was placed on a host of cases8(at paragraph 17) .These cases recognised that th e

reputation of a trader , trading or carrying o n the business in another countr y, can travel to a country w here

he had carried no business. The traders trans-border reputation can be on the basis of th e extensiveadvertisements and public ity. Such a trader could obtain injunction a court w here he was not trading, to

protect his reputation.InApple Computer Inc case it was stated in reliance (at page 137) as was held that:

"I t is not necessary in the context of the present day circum stances the free exchange of inform ation andadvertis ing thro ugh news papers, magazines, video televis ion, movies, freedom of travel between various

parts of the world, to insist th at a particular plaintiff must carry on business in a jurisdiction before improp er

use of its name or mark can be restrained by the court."

A host of decisions have since interpreted" transborder reputaion" in a similar light9


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J. Bahri held after distinguishing the Sears case10that: "Mere fact that the plaintiff has never manufactured any

products in this country does not prevent it from acquiring the good will here in its trade mark. It is no doubttrue that an action for passing off relates to bus iness in this countr y. The foundation for the action for

passing off is the protection of goodw il l and so, one must prove the existence of goodwil l in this country

before obtaining a relief of passing off .The principle of law o f passing off has been also made applicable to

non trading busin ess or non-profit mating bodies as well."

Quoting the Wander Limited vs. Antox India

11

decision, where it was held:

"An infringement action is available when there is violation of specif ic prop erty right acquired under and

recognised by the statute. In a passing off action, however, the plaintiffs right is independent of such astatutory righ t to a trade mark and is against the defendant which leads to or is intended to or calculated to

lead to deception."

InCalvin Klein Inc vs. International Apparel Syndicate12

accepted the view of a Canadian Court of Appeal in OrkinExterminating Co Inc vs. Pestco Co of Canada Ltd

13where it was held that:

"Canadians travelling in the United States are exposed to Orkins extensive advertising and the use of of itstrade marks in the cou ntry. There was evidence adduced that mil l ions of Canadians travel in the United

States every year, particularly in the southern vacation states, where Orkins operations are extensive.Canadians in Canada are exposed to Orkins advertising and artic les appearing in Am erican publicationswhi ch circ ulate here......" .

The principles established in regard to the doctrine were reiterated by the case ofAktiebolaget Volvo v. Volvo SteelsLimited

14, however, a Division Bench of the Bombay High Court took consideration of subsequent events in terms of

the intention of the party to enter the Indian market as affecting the balance of convenience, a factor that governs thediscretion in grant of injunctions. However with respect to transborder reputation, a division bench held thattransborder reputation is recognised by Indian courts and that actual sale in India is not necessary for a plaintiff toestablish its goodwill and reputation in India. The division bench relied on the Whirpoool case where it was observedthat:

"Thus a product and its trade name transcends the physical boundaries of a geographical region andacquires a transborder or overseas or extra-territorial reputation not only throu gh imp ort of goods but also

by its advertisement. The knowledge and awareness of the goods of a foreign trader and its trade mark canbe available at a place where goods are not being marketed and cons equently not being us ed."

The court placed reliance on Paragarphs 156,Volume 48 of Halsburys Laws of England

which reads as follows in this regard:

"156. Whether actual trade need have comm enced- A passing-off action can be sustained prio r to th e actualcomm encement of trading by the plaintiff . A plaintiff may acquire a substantial reputation prior to making

sales of a product o r service because of advance advertis ing and pr ess public ity and, in suc h case, may sue

others wh o seek to trade on the reputation and goo dwil l that is able to be pro tected even before its formalincorporation and within hours of the announcement of its intended formation. Where a plaintiff hasincurred con siderable expense making preparations for the launch of a produc t which w il l rapidly acquire a

reputation once launched, a defendant who commences advertis ing before the plaintiff with the intention of

defeating the plaintiffs acquisition of an exclusive right to the mark concerned may be restrained by a quiat imet injunction."

Further reliance is placed on paragraph 180 of the same which reads:

"Ac tions by fo reign traders- A number of cons iderations arise when a plaintiff seeks to restrain the use in

the United Kingdom of a name, mark or oth er indicia under which he has carried on business abroad. First ,

a plaintiff in any case off passing-off m ust prov e a reputation extending to the geographical , area in which

the defendants use of the name ,mark or other indicia complained of is taking place, whether this is anotherpart of the country in w hich the plaintiff trades or in a different country, for if he has no reputation in the

United Kingdom then the defendants use of a similar name or mark cannot involve any misrepresentation. Ifthe plaintiff can establish that a substantial number of persons with wh om the defendant intends to trade in

the United Kingdom know of the plaintiffs business, so that the element of misrepresentation is established,the plaintiff mus t further show , as in any passing-off action, that the misrepresentation, that the

misrepresentation poses a real and tangible risk of inju ry to his bu siness or good wil l .

However it is unclear whether there is an addit ional requirement that the plaintiff m ust carry on b usiness in ,

or at least have a trade extending to , the country in which h e seeks to r estrain the defendant from using the

mark or name, or whether the geographical separation of the plaintiffs business from the defendants is

factual element which m erely makes it diff icult, but not im possible in all circumstances, for a plaintiff toshow that the defendantsactiv it ies are likely to cause him substantial damage. What is clear is that aplaintiff who has no p lace of business in the United Kingdom and do es not directly trade there but whose


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goods are impor ted by others can acquire a reputation and goodwil l that is able to be protected. A business

carried on abroad but which correspond s with custom ers in the United Kingdom c an likewise acquire a

reputation and good wil l able to be protected.

It is more dou btful wh ether passing off can be established where the plaintiffs goods or services are notmarketed in the United Kingdom but his custom ers who have come across his goods or services abroad

reside in or come to the United Kingdom, although in one such c ase an interlocutory injunction w as granted.

However, it has been held that a plaintiff wh ose establishment in Paris had been adverted in Englandthrough travel agents and who had som e customers in England wh o had visited Paris, could not m aintain a

passing off action in England against a defendant who has adopted the name of the plaintiffs establishmentand used similar advertising with the intent of exploiting the plaintiffs reputation , because goodwill couldnot be acquired with out actual user in England. This because be acquired without actual user in Eng land.

This decision has been crit ic ised as wrongly decided and tenuous user in the United Kingdo m has been

treated as justif ication fo r protection o f a reputation primari ly acquired b y trade abroad but the case has

been cited with approval by the court of Appeal.

The extent to wh ich a reputation acquired by trading abroad may be protected in the United Kingdom m ay

depend to som e extent upon whether a trade is to be treated as a matter of law as having a separate goodwi l l

in each country in w hich he trades or whether the confining o f goodwi l l to a particular country or area is a

question of fact tending on th e trade patterns and cir cumstances invo lved. If goodwil l is to be treated as a

matter of law as stopp ing at frontiers there may sti l l b e cases where the defendants activities are likely tocause damage to the plaintiffs business in the country or countries where he trades."

Thus the doctrine of transborder reputation which lies at the root of well-known trade marks and their legal protectionis firmly entrenched in trademark jurisprudence.

15

Doctrine Of Trade Connection In Relation To Goods / Services Fall ing Within The Same Or Different Classes

Another legal doctrine that was postulated by Indian courts was in relation to the intention of the defendant in usingthe goodwill and reputation of the owner of a mark known to be well-known. This can be seen to be offshoot of thedefinition presently ascribed to a well-known mark under Indian law. This was the " Doctrine of Trade Connection"between the classes in which the mark sought to be protected was registered. It is relevant to state here thatcuriously, the said principles have been established in relation to trademarks covering goods only. Since servicemarks came into existence w-e-f from 15th Septemb er, 2003only (when the Trade Marks Act, 1999 came intoforce), it appears to be a consideration to make the case for service marks difficult in as much as no suit forinfringement could be instituted as service marks were not recognised earlier but passing-off actions could bemaintained. In a passing off action, however it is required that an element of dishonest intention in user beestablished .Let us briefly look at the judicial interpretation available in support of the same.

In Warnink vs. Townend & Sons (HULL) Ltd. 1979 A.C 73116

, Lord Diplock identified the following five characteristicswhich must be represented in order to create a valid cause of action for passing-off:

i. a misrepresentation ,ii. made by a trader in the course of trade,iii. to prospective customers of his or ultimate customers of goods or services supplied by him,iv. which is calculated to injure the business or goodwill of another trader (in the sense that there is a

reasonably foreseeable consequences),andv. which causes actual damage to a business or goodwill of the trader by whom the action is brought or (in

quia timet action) will probably do so .

In Reckitt & Cdman Products vs. Borden Inc & Ors 1990 R.P.C 341, it was held that proof of fraudulent intention isnot a necessary element in a cause of action for passing off .The relevance of fraud to this tort is simply that " i f the

intention to d eceive is found, it wil l be readily inferred that deception wil l result."

InCentury Traders vs. Roshanlal Duggar & Co AIR 1978 Delhi 25017

, a division bench held that:

"In passing off cases, however the true basis of action is that the passing off by the defendant of his goodsas the goods of the plaintiff injures the right of pro perty in the plaintiff , that right of property being his right

to good wil l of h is business.... this right is to be pro tected and the balance of conv enience is in favour of the

person who has established a prima facie right to property."

In N.R Dongre vs. Whirpool Corporation AIR 1995 Del 300, it was held that the concept and princ iple on whichpassing off action is gr ounded is that no m an has any right to represent his goods as the goods o f another.

A trader needs protection o f his right of priori u ser of a trade mark/trade name as the benefit of the name,

fame, reputation and im age and goodwil l earned by him cannot be taken advantage by another trader by

passing off his go ods as those of the prior user of the trade mark or trade name .

In Ellora Industries vs. Banarsi Dass AIR 1980 Delhi 254, it was held that "confusin g custom ers as to source, isan invasion of anothers property right."

18


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Similarly, inHonda Motor s Co Ltd. versu s Charanjit Singh & Ors 2003(26) PTC 1 (Del) a passing o ff action w asmaintained by a plaintiff who was registered in respect of automobiles and power equipm ents against a

defendant using the goodw il l in the trademark in respect of pressure cookers.

Further inDaimler Benz Aktiengesellschaft & An r v Hybo Hindustan AIR 1994 Del 239, the plaintiff was using thetrade mark Mercedes Benz in relation to vehicles, whereas the defendant had started using the trade mark BENZ inrespect of undergarments. The Court granted injunction restraining the defendant from using the trade mark "Benz"

as well as "three pointed human being in a ring." The judgement was upheld by the Supreme Court. The followingobservations are worth noting:

"There are marks which are different from other marks. There are names which are different from other names. Thereare names and marks which have become household words. "Benz" as name of a Car would be known to everyfamily that has ever used a quality car. The name "Benz" as applied to a car, has a unique place in the world. Thereis hardly one who is conscious of existence of the cars/automobiles, who would not recognise the name "Benz" usedin connection with cars. Nobody can plead in India, where "Mercedes Benz" cars are seen on roads, where"Mercedes" have collaborated with TATAS, where there are Mercedes Benz trucks have been on roads in everylarge number,(known as Mercedes Benz Trucks; so long as the collaboration was there), who can plead that he isunaware of the word "Benz" as used with reference to cars or trucks.

Thereafter, the court also relied upon cases19

where the class of goods in which the mark was used by the defendantwas entirely different from that of the plaintiffs. Even in such cases injunction against passing off have been granted.

Doctrine Of B ad Faith:

Section 11 (10) (ii) of Our Act, 1999 requires us to prove the presence of bad faith in order to displace the immunityplaced on marks already registered . It is pertinent to note that in respect of service marks no registration waspossible until the Trade Marks Act, 1999 notified on September 15, 2003 .The element of bad faith is to beestablished in order to destroy the immunity to trademarksregistered before the commencement of this Act (whichhowever, does not apply to service marks). Under the Trade Marks Act,1958

there was no such consideration in respect of other trade marks . Also this applies in respect of the Registrarsdetermination that the reputation in a well-known mark has been dishonestly used. However, once it can be shownthat material circumstances have not been revealed by the applicant to the Registrar, the registration in respect ofthat mark (service mark) can be invalidated. For this, we shall briefly look at the development of case law on thedoctrine of bad faith.

Preliminarily, the doctrine could be seen as developing from the concept of trademark dilution. In Caterpillar Incversus Mehtab Ahmed & Ors 2002 (25) PTC 438 (Del ), the court held that :

"There is no doubt that mark of the plaintiff has become synonym for quality of high degree and adoption of its namealongwith distinctive and unique characteristics of style by defendants projects propensity to trade or cash upongoodwill and reputation of the plaintiffs trademark. It is nothing but piracy of trade name. Plaintiff has a right toprotect its mark reputation, goodwill and risk of dilution involved in the act of passing off from the unscrupulousdesigns of the defendants"

Similarly, in Jolen Inc. versus Doctor & Company 2002 (25) PTC 29 it was held that:

"It is not necessary that the association of the plaintiffs mark with his goods should be kno wn in thecountries w here it is known best. Mere advertisement in other countr ies is suff ic ient if the trademark has

established its reputation and goodwil l in th e country of its origin and countries where it is registered.

In modern wor ld, advertisements in the newspapers where party is engaged in business throug h overseas

edit ions or otherwis e. Even if it is assumed that such advertisements or mark do no t travel beyond the

borders of the coun tries where the plaintiff has the business sti l l it has a right to pro tect its reputation and

goodw il l . It is m ore so wh ere the trade name has been pirated in total i ty and not by way of having deceptive

or con fusing sim ilarity. We are liv ing in a wor ld where there is enormou s mob il i ty. Well travelled Indians and

tourists cannot remain unaware of international commoditi es. Reputation always travels faster than men

Whenever persons travell ing abroad for business or pleasure or any other purpose viz study or tem porary

posting s come across an artic le of a tradename of international reputation they are bound to be confu sed as

to the source and quality if they happen to see that commodity in their country w here there is no phy sical

market. Mere likelihood of confusio n is suff ic ient."

A similar judgement in an Indonesian case20

has been enforced recently by Delhi High Court in which a mark eventhough registered in a jurisdiction other where registration was sought to be cancelled on the grounds that it wasregistered in English language and not in Indonesian language was used to show "bad faith".

In the U.K case decision in Daawat Trade Mark [2002] RPC 297 (TMR)in an application for declaration of invalidity itwas held that the registration was made with the intention of pre-empting prior foreign user in respect of rice and


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similar goods covering the registration. The registered proprietor had no intention to use the mark himself. Partialrevocation was ordered. It was held that:

1. To make out a prima facie case of bad faith, the applicant had to show that the registered proprietor hadhad knowledge of the applicants use of the mark DAAWAT in India prior to the date of application forregistration of the same mark in the U.K had reasonable grounds to believe that the applicant intended toenter the U.K market for rice under that Daawat mark, applied to register the mark in order to take unfair

advantage of the applicants plans.2. The evidence showed that the application for registration of the mark Daawat in the U.K in respect of riceand similar goods was in effect, a tool by the registered proprietor in order to improve its prospects ofobtaining an agency or distribution agreement with the applicant in connection with the latters plans toselling it s rice in the United Kingdom.

3. While the registered proprietor believed that the conduct it was engaged in constituted acceptablecommercial behaviour and was unfair to the point of bad faith.

4. The question of bad faith had to be judged at the date of the application for registration. To the extent thatthe application was made in bad faith, the defect could not be cured by establishing at a later date, thesame applicant could have made the application in good faith.

A similar provision existing in U.K in the form of Section 3(6), Trade Marks Act, 1994 reads to the same effect. In fact,subsection (1) of section 11 is similar to section 72 of the Trade marks Act, 1994. The principle laid down in thiscase is important in this respect as it can be used to establish bad faith in terms of non-disclosure of clientstrade mark (service mark) during the prog ress of its own application fo r registration in India.

Lastly, in Gromax Plasticulture v Dow &Low Non-Wovens Ltd, Lindsay J. Considered the meaning of bad

faith in S 3(6) of the U.K Trade mark law and s tated that:

" I shall not attempt to define bad faith in this co ntext . Plainly it inclu des dishonesty, and as I would h old,

includes also som e dealings which falls short of the standards of acceptable commercial behaviour as

observed by reasonable and experienced men in the particular area being examined. Parl iament has w isely

not attempted to explain in d etail what it is or is no t bad faith as a matter best left to be adjudged not by

some paraphrase by the courts (which leads to the danger of the courts then con struing no t the Act but the

paraphrase) but by reference to words of th e Act and upon a regard to all material surroun ding

circum stances. "

It is also relevant to n ote that since this is determin ed both vis -a-vis the applicant and the owner of th e well-

known mark , it is essential to establish that the plaintiff (owner of trade mark ) had no p revious know ledge

of the same .

Doctrine Of Delay And L aches And Acquiescence:

Curiously, the said principles have been established in relation to trademarks covering goods only. Since servicemarks came into existence w-e-f from 15th Septemb er, 2003only (when the Trade Marks Act, 1999 came intoforce), it is a consideration that passing-off actions could be instituted that laches and delay in respect of institutingpassing off actions become material. The doctrine of delays and laches applies in order to see the conduct of theplaintiff as was held in the case of Cluett Peabod y &Co Inc v A rrow App arels 1998 PTC (18) 156 This case washowever distin guished on facts in Pizza Hut LLC and Pizza Hut Inc versus Pizza Hut India Private Limited as

reported in p aragraphs 23 and 24 in the same.

In view of the above, foreign right holders can marginally enforce its service mark as a well-known mark in light ofconsiderations, provisions and judicial precedents outlined above in respect of passing-off actions. However, theelement of knowledge as an exception to the doctrine of laches can serve to provide some respite in terms ofenforcement. All in all, it is crucial for such foreign rights holders to act for proactively enforcing the goodwill

established internationally by registration of trademarks and institution of timely and appropriate proceedings forenforcement.

Footnotes

1. Halsburys Laws of England Volume 48 page 86 at para 142 in relation to protection of well-known trademarks comparing Section 56 of the Trade Marks Act,1994 (U.K)

2. Alain Bernardin & Cie versus Pavilion Properties Limited [1967] R.P.C 581.See also New Star Industrial Co Ltdversus Yap Kwee Kor [1976] FSR 256

3. Reiterated in Anheuser-Busch v. Budejovicky Budvar [1984] F.S.R 413

4. Tan-ichi v Jancar [1990] F.S.R151 , S.C (H.K)

5. Kamal trading co and Ors v Gillette U.K Ltd.1988(12)IPLR 135 at page 143


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6. 1996 PTC 476

7. Reaffirmed in 1996 (16) PTC 583

8. William Grant & Sons Vs Mc Dowell & Co Ltd. 1994 (30) DRJ 105; Apple Computer Inc vs. Apple Leasing &Industries 1992 (1) Arb L.R 93 ; Panhard Leavassors case (1901) 18 RPC 405 ,Poiret u. Jules Poiret Ltd. (1920) 37RPC 177, Sileraton Corporation 1964 RPC 202and Globe Elegance 1974 RPC 603.

9. WWF International vs. Mahavir Spinning Mills 1995 DRJ 412 following the decision in Sears Roebuck & Co vs.Happy House (TV) Mfg Co Ltd. & Ors1992 PTC 59

10. ibid at foot note 9.

11. 1990 (2) Arb .L.R 399 at para 10

12. 1996 PTC 16 Calcutta High court decision

13. 5 CPR (30) 433. The same view was based on the decision in Sheraton Corporation vs Sheraton Motels 1964R.P.C 202

14. 1998 PTC 18

15. See also Alfred Dunhill vs. Kartar Singh Makkar and Ors 1999 PTC (19) 294 [Delhi High Court] ; Honda MotorsCo Ltd versus Charanjit Singh &Ors 2003 (26)PTC 1(Del) and Pizza Hut International LLC and Pizza hut Inc. versusPizza Hut India Pvt. Ltd. Suit no.1780 of 1999 (Attached herewith)

16. Relied in Alfred Dunhill case 1999 PTC (19) 294 (Del)

17. Mentioned at paragarphs 7 and 8 ofAlfred DunhillJudgement

18. Similarly, held in Caterpillar Inc versus Mehtab Ahmed & Ors 2002(25)PTC 438(Del)

19. Ciba-Geigy vs Surinder Singh 1996 PTC (16) 293

20. Kangaro Industries (Regd) versus Harsono Hardjolukito and Anr. 2004 (29)PTC 175(Jakarta)

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should besought about your specific circumstances

Remakes in the Limelight: A Case Comment on Sholay Media vs. Parag

Sanghavi

The principles of copyright and trademark law in relation to remakes, spin-offs and sequels have been the subject of a

significant amount of case law in the United States. In India, however, these principles lacked specific enunciation until the

recent case brought by the makers of the legendary Hindi film Sholay, which was seen as a significant victory for rights-

holders in the Indian entertainment industry. By Swathi Sukumar, Anand & Anand

Date: September 2007

The principles of copyright and trademark law in relation to remakes, spin-offs, and sequels have been the subject of a significantamount of case law in the United States. However in India, these principles lacked specific enunciation. The matter of Sholay Media

& Entertainment vs. Parag M Sanghavi & Ors., CS (OS) No. 1892 of 2006 raised several of issues in relation to film titles, plots andcharacterizations before the Delhi High Court.


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BackgroundIn 1975, Sholay, hailed as India's biggest and best film, was released by Sippy Films. Sholay (singular: Shola, meaning "ember" in

Hindi) was screened in movie halls for a continuous period of five years following its release.

Three decades since its initial release, the film has retained its cult-status and its reputation as an epic. The characters in the filmSholay became names to reckon with, each remembered for their peculiar characteristics and roles. The oft-quoted dialogues of the

film are part of the country's entertainment heritage.

Sholay revolves around the story of two petty crooks, Jai and Veeru, commissioned by Thakur Baldev Singh to fight the tyranny ofGabbar Singh, a notorious bandit, or dacoit.

Gabbar Singh was the archetypal villain and is considered to be the greatest villain the Indian film industry has ever seen. For years

after Sholay, all villains were compared to the touchstone of the formidable and sinister Gabbar Singh

The dispute leading to the filing of the suit concerned the proposed remake of Sholay by Ram Gopal Varma, an eminent director in

the Indian film industry. Sippy Films Private Limited and Sholay Media and Entertainment Private Limited objected to the remake,titled Ram Gopal Varma ke Sholay (which translates as Ram Gopal Varma's Sholay), claiming to be the rights-holders in the film,

its title and copyright.

The plaintiffs brought a suit against Varma alleging infringement of copyright, registered trademarks and passing off, a common

law tort which occurs when one party misappropriates the reputation of another.

On hearing the submissions of the plaintiffs on the first day after the suit and injunction application were filed, the High Court,

through Justice Gita Mittal, restrained the defendants from "manufacturing, selling, offering for sale, distributing, advertising

including on the internet and in any other manner using the Sholay, Gabbar (or) Gabbar Singh trademarks or any other deceptively

similar mark amounting to infringement of the plaintiff's registered trademarks".

The defendants were "also restrained from infringing the copyright of the plaintiff's [sic] in the cinematographic film Sholay by

substantially reproducing the film Sholay or the constituent parts of the film Sholay, i.e. the script, screen play, sound recordings,

lyrics, musical works, art works amounting to infringement of copyright in the works of the plaintiffs".

The order of injunction was passed on October 5 2006. Subsequently, the defendants filed an application to vacate the injunction.

The injunction application and the application to vacate were heard jointly over thirty hearings by the Delhi High Court.

Film titles as trademarksThe trademark claim of the plaintiffs was based on the fact that both Sholay and 'Gabbar Singh' are registered trademarks.

The issue argued before the High Court concerned whether cinematograph films can be considered goods, and therefore whethertitles of films are capable of registration as trademarks.

The defendants contended that cinematograph films are not goods under trademark law, and film titles could therefore not b e

registered as trademarks.

In countering the defendants' arguments, the plaintiffs relied on the ruling of the Delhi High Court in a case involving a similar

question, in Kanungo Media (P) Ltd vs. RGV Film Factory, 2007 (34) PTC 591 (Del). Interestingly, the Kanungo case and the

Sholay case shared a common defendant in Varma.

In the Kanungo case, the plaintiff released a regional Bengali film titled Nisshabd. The film was exhibited at various film festivalsand also received accolades.

The plaintiff learned that Varma's production house, RGV Film Factory, had adopted the identical title for a forthcoming film.Kanungo filed an application for an interim injunction seeking to restrain RGV Film Factory from releasing the film.

In a detailed order, Justice AK Sikri observed that in India, the legal position in respect of film titles is the same as in the United

States. The court classified film titles into two categories: titles of series of film and titles of single copyrighted works .

The justice held that protection is certain in regard to titles of series of films, and such titles enjoy standard trademark protection and

may be registered. The court found that in order to extend this protection to the title of a single work, it must be proven that such

title has acquired a secondary meaning, but ruled against the plaintiff's requested interim injunction on the ground of delay in

bringing the suit.

While the Kanungo case considered the issue of protection of titles of single works, the only ruling on the aspect that emerged fromthe case was that film titles could be subject to trademark protection.


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In the Sholay case, the plaintiffs argued that film titles may be registered under class 9 of the Trade Marks Act, 1999, which covers

cinematograph films. The defendants argued that the words "cinematograph films" in Class 9 meant raw photographic or

cinematographic film, and not a cinematograph film ready to be screened. Therefore, the defendants argued that Class 9 coveredtrademarks such as 'Kodak' for raw films but would not include cinematographic films.

In response to the defendants' arguments on Class 9, the plaintiffs produced various certificates to illustrate that titles of films had

been registered as trademarks by the Trade Marks Office, including Toy Story, The Blair Witch Project and Pirates of the

Caribbean.

The plaintiffs argued that the practice of the Trade Marks Office negated the argument of the defendants in this respect.

Further, the plaintiffs used the yardstick set out by the court in Kanungo, and argued that Sholay, as the title of a single literary

work, could be protected as a trademark, as they had been able to demonstrate that a secondary meaning had been attached to t he

mark, given the film's historic success.

Therefore, the plaintiffs contended that, even assuming that the titles of single films were not per se registrable, they had been ableto show the existence of a secondary meaning.

The plaintiffs further argued that the inclusion of the registered trademark 'Sholay' in the title of the defendants production amounts

squarely to infringement of the registered trademark.

Against this backdrop, the court considered the issue of whether 'Sholay' was indeed a protectable trademark.

Passing off

The plaintiffs' claim for passing off was perhaps its strongest foothold in the suit. The plaintiffs claimed that the defendants were

guilty of passing off their production as originating from or being associated with the plaintiffs' production.

The defendants proposed to title their remake "Ram Gopal Varma ke Sholay", which in Hindi means "Ram Gopal Varma's Sholay".

The plaintiffs filed several press clippings to illustrate the fact that the defendants continually associated their proposed remake with

the plaintiffs' film, which gave the defendants' production extensive publicity. The plaintiffs contended that the defendants'

production had been advertised as associated with the plaintiffs' film, which amounts to riding upon the goodwill of the plaintiffs.

It was argued that the defendants' representations that their production was a remake amounted to misleading the public that theywere licensed by the plaintiffs to use the trademark.

The defendants contended that the addition of the prefix "Ram Gopal Varma Ke" was sufficient to distinguish the defendants'

production, as Varma is a director of repute in the industry. The plaintiffs argued in reply that the addition of the prefix was

insignificant, and that the use of the trademark 'Sholay' in the title of the film would lead to confusion, dilution and tarnishment of

the trademark.

The plaintiffs also sought support from the fact that the defendants had not provided any explanation for the adoption of the

trademark 'Sholay'. Since 'Sholay' is not a descriptive mark, the plaintiffs pointed out that there was no explanation forthcoming

from the defendants for the adoption of the trademark as part of their film title.

The plaintiffs relied on decisions of the Delhi High Court in Apple Computer Inc. vs. Apple Leasing & Industries, 1993 (18) I PLR

63 and in Alfred Dunhill Limited vs. Kartar Singh Makkar & Ors., 1999 PTC (19) 294 to state that the lack of an explanation is

indicative of the fact that the defendants have no right to use the trademark, and that the use of 'Sholay' is motivated by the intentionto misappropriate the goodwill of the trademark.

Copyright claimsThe plaintiffs' copyright claims were in the nature of quia timet prayers, a request for an injunction to restrain wrongful acts which

are threatened or imminent but have not yet occurred. Common law recognizes that a rights-holder may pre-empt infringement of

his rights by filing a quia timet action against a defendant who has demonstrated his intention to infringe upon the plaintiff's rights.

The principle has been recognized in relation to trademark law by the Delhi High Court in the case of Mars Inc. vs. K.K. Mukherjee

(unreported), dated October 30 2002, J.D. Kapoor, J., Suit No. 1129/ 2003.

Based on the representations made in the media that the defendants' production was a remake, the plaintiffs' claim of copyright

infringement was in the nature of a quia timet action to restrain the defendants.

The plaintiffs claimed copyright in the following works:(i) The cinematograph film

(ii) The script


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(iii) The screenplay

(iv) The musical works

(v) The lyrics/literary works(vi) Characters

The plaintiffs' case in relation to the cinematograph film was fairly straightforward, as the plaintiffs were the legal heirs of the Sippy

Films partnership, the producer of the film. Therefore, under the Copyright Act, 1957, they were the owners of copyright in the

cinematograph film.

As regards the plaintiffs' copyright claim in relation to the underlying works, such as the lyrics, music and script, the pla intiffs

asserted that they are the copyright owners in these works by virtue of the fact that their employees created these works while in

employment with the producer of the film.

The plaintiffs argued that since they had no way of ascertaining which of their works had been infringed, detailed pleadings on each

work infringed by the defendants could follow only once the film had been released.

The defendants contended that their work was an independent work, and contradicted the representations made in the media that

their film was proposed to be a remake of the plaintiffs' film.

The plaintiffs also argued that Varma's production would violate the integrity of the original film, more so because the actor who

played the protagonist, Jai, in the original Sholay was slated to play the villain Gabbar Singh in Varma's proposed remake.

CharactersIndian courts have delivered very few decisions on the granting of copyright protection to characters of a literary work. A

significant decision in this area was Raja Pocket Books vs. Radha Pocket Books, 1997 (40) DRJ 791.

The plaintiff in the case brought a suit for infringement of copyright in the character Nagraj, a character who appeared in comics,

books and novels for children. Nagraj - the Snake-King - was a character who was depicted in a green serpentine skin and red

trunks, empowered with super powers of snakes. The defendants sought to release comic books with a central character named

Nagesh, who wore a similar outfit and had similar powers. The plaintiff objected to the defendant's adoption of the character Nagesh

on the ground that it amounted to copyright infringement of the artistic work of Nagraj.

In the Sholay case, the plaintiffs argued that the characters in their film, Jai, Veeru, Basanti, Thakur, Soorma Bhopali and Gabbar

Singh were capable of copyright protection, as they are sufficiently delineated in the script and the screenplay.

The plaintiffs relied on the case of Anderson vs. Stallone, 11 USPQ 2d 1161, which revolved around the character Rocky Balboa,the protagonist of the Rocky series of movies. The plaintiff in that case filed a suit to restrain infringement of copyright in the scriptof the film Rocky IV, which he had alleged that he authored. While finding against the plaintiff, the court held that the Roc ky

characters are one of the most highly delineated group of characters in modern American cinema and were protected from being

used in other works.

The plaintiffs contended, therefore, that the characters of Sholay were so well delineated by their individual traits and habits that

they are protected from misappropriation by a third party.

The plaintiffs were also the proprietors of the registered trademark 'Gabbar Singh' in respect of certain classes of goods such as

jewelry and coffee intended for use in merchandising the character. The plaintiffs relied on the registrations to make an argument

against the use of the trademark as part of the defendants' production.

The defendants refuted the claim of trademark infringement on the ground that the plaintiffs had not effectively merchandised the

character and had no goodwill in those goods which could give rise to a claim against the defendants.

The outcome

On July 16 2007, on the eve of conclusion of arguments of both parties, Varma made a formal statement through counsel that he iswilling to give up the trademark 'Sholay'. In light of this fact, the plaintiffs' injunction was made permanent on Varma's assurance

that his production would be renamed Ram Gopal Varma Ke Aag. Varma also gave his assurance that no character in the movie

would bear a name which is the same or similar to the names of or the characters in the movie Sholay in respect of which the

plaintiffs have claimed rights.

Varma also provided assurances that the new production would be an independent work by itself and the script, screenplay,

dialogues and musical score of the new film would also be original, distinct and different from the plaintiffs' film.

On these assurances, the defendants were permitted to release their production. The injunction application and the application to

vacate the injunction were disposed of.


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The copyright claim however, continues to subsist, and the plaintiffs are at liberty to press the claim if any part of the pr oduction is

in violation of the assurances given to the court by Varma.

The Sholay case is seen as a major victory for rights-holders in the Indian entertainment industry, which has not been famous for its

respect for intellectual property laws.

About the author

Swathi Sukumar is an associate in Anand and Anand's litigation department. She graduated in 2005 with a bachelor's of arts and a

bachelor's of law (honours) from NALSAR University of Law, Hyderabad, India. Her area of practice is general intellectualproperty litigation with a focus on patent and trade secret litigation. She recently co-authored the India chapter on patent litigation,

in the Patent Litigation Reference Series, published by European Lawyer Ltd.

http://www.asialaw.com/Article/1988976/Remakes-in-the-Limelight-A-Case-Comment-on-Sholay-

Media-vs-Parag-Sanghavi.html?Print=true&Single=true

http://www.mondaq.com/india/x/33695/Trademark/Legal+Recognition+Enforcement+of+Well+Kno

wn+Marks+in+India+A+Service+Marks+Perspective

(iii) Alfred Dunhill Limited Vs Kartar Singh Makkar & Others

1999 PTC (19) 294

Held : A trader needs protection of his right of prior user of a trade

mark/trade name as the benefit of the name, fame, reputation and image

and goodwill earned by him cannot be taken advantage by another trader

by passing off his goods as those of the prior user of the trademark or trade

name.http://www.ipab.tn.nic.in/005-2013.htm

16. Alfred Dunhill Limited Vs Kartar Singh Makkar & Others

1999 PTC(19) 294It was held that trader who has built name, fame,

reputation and goodwill needs to be protected from other trader passing off

his goods.

http://www.ipab.tn.nic.in/044-2013.htm

India: Expired Trademark Registration Can BeRenewed: A Case Summary On Union Of India V.Malhotra Book DepotLast Updated: 25 April 2013

Article bySingh & Associates Litigation Team

Singh & Associates
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Background

Trademark Law in India is passing through a remarkable and progressive phase. Recently Samsung has raised the issue ofInternational Exhaustion of a trademark under Indian trademark law. Similarly, trademark registrations in India have alsoincreased as India is becoming a preferred destination for commercial activities world over. Trademark registration in India isregulated by the Trademarks Act 1999 of India. A registered trademark is valid for a period of 10 years which can be renewedfor another 10 years at a time. There may be cases where a trademark holder fails to renew its trademark on time. Renewal of

an expired trademark is only option left in such cases. In India even if the mark has been expired, one can apply for its re-registration. If someone else applies for registration for expired trademark as per the prescribed procedure, owner of expiredtrademark can file objections at the registry, tribunal or appropriate forum.

In the recently decided matter of Union of India v. Malhotra Book Depot1by the Delhi High Court on the restoration of the

trademark of Malhotra Book Depot after 26 (twenty six) years of expiry; it was directed by the Hon'ble Court that the mark of theRespondents should be renewed. The brief of the case is as below:

Union of India & Ors. v. Malhotra Book

Depot2

Facts of the case

The predecessors of the respondent, (which is stated to be a partnership firm of Mr. Satish Bala Malhotra, Ms. Monica MalhotraKhandari and Ms. Sonica Malhotra Kandhari) namely Shri Ashok Kumar Malhotra and late Shri Balbir Singh trading as M/sMalhotra Book Depot had applied for and were granted registration of the trademark 'MBD' in Class 16 for the goods"publications (printed) and books" vide Trademark Registration dated 23rd November, 1970. The said trademark was thereafterduly renewed from 23rd November 1977 to 23rd November, 1984. On the 1st April, 1992 the constitution of M/s Malhotra BookDepot was changed and a fresh partnership deed was executed between the new partners i.e. Shri Ashok Kumar Malhotra andMs. Satish Bala Malhotra. On the demise of Shri Ashok Kumar Malhotra the constitution of the respondent M/s Malhotra BookDepot was again changed and a fresh partnership deed was executed between Ms. Satish Bala Malhotra, Ms. Monika MalhotraKandhari and Ms. Sonica Malhotra Kandhari on 30th December, 2009. That in April, 2010 the respondent filed a suit forpermanent injunction restraining infringement of the Trademark MBD and in connection with the said suit applied forcertification for use in Legal Proceedings. However the application was returned by the Appellant No. 3 Registrar of Trademarkas no records/details of the said trademark could be traced in the database of the Registrar in the consequent investigation bythe respondent it was realized that the trademark had not been renewed after 23rd November, 1984.

Contention of the Registrar of Trademark (Appellants)

i. That the renewal of the mark had become due on 23rd November, 1984 i.e. 26 years prior to the filing of the writ petition andthe writ petition suffered from delay and latches.

ii. That the factum of removal of the Trademark was notified in the Trademark Journal No. 997 dated 16th November, 1990 fornon-payment of the renewal fee.

iii. That such removal could not be without following the due process as per the provisions of law and the respondent wastaking advantage of the facts that 26 years old records of dispatch of Notice in form O-3 would not be available with theRegistrar.

iv. On receipt of complaint regarding non-receipt of Registration Certificate and non-issuance of the Form O-3 Notices, PublicNotices dated 24th September, 2010 and 31st November, 2010 were issued advising the public at large to file the petition in theprescribed manner.

v. That the Respondent was also advised to file a petition in this regards vide letter from the Trademark Registry issued on 24thJanuary, 2011.

The Counsel for the Appellant argued that removal of a trademark is an administrative act akin to removal of deadwood andany deficiency in such removal does not give any right for restoration of the trademark beyond the time prescribed thereof.Further it was said that the issuance of Notice in Form O-3 is not mandatory and cannot extend the duration for indefiniteperiod.

Reply of the Respondent

The Respondent did not receive any Notice in Form O-3 and sue to which the removal of the registered trademarkwithout notification cannot be done by the Resgitry.

If removal of the mark is wrong, its restoration cannot be denied; while providing for removal of the mark on non-payment of renewal fees at the expiry of the last registration uses the word 'may' and not 'shall', that it is for thisreason only that the Registrar, inspite of the validity of the mark having expired in the year 1984 did not remove it till


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the year 1990, that if the mark not removed, its renewal can be applied for at any time. If the removal of the mark iswrongful, the limitation prescribed in section 25(4) of one year for applying for renewal thereof does not apply.

On a plain reading of section 25, the inescapable conclusion is that though the period of registration was prescribedas seven years, renewable from time to time on application in the prescribed manner within the prescribed time butthe removal of the mark from the register has been made subject to sending of a notice in the prescribed mannercalling upon the registered proprietor to review the mark and permitted only upon the failure of the registeredproprietor to do so and not merely on the failure of the registered proprietor to apply within the prescribed time.

Rules for renewal and expiration of registration has been prescribed, according to which renewal of registration canbe anytime within six months before expiration of the last registration. However the non-renewal has not been madeautomatic. If the renewal application is not made two months prior to expiration, the registrar is required to notify thesame to the registered proprietor. The removal of the mark from the register can be done only after such notification.

The Judgment

The Division Bench in this matter was of the view that:

A mark cannot be removed without following the due process as per the provisions of law and had been done withoutfollowing the due process and had made presumptive statements and also in the Respondent's case the Form O-3had not been issued as provided for in Rule 67.

Under section 25 of the Trade and Merchandise Mark Act, 1958, the application for renewal of the registration couldbe made upon receipt of the Notice in the Form O-3.

The Registrar could remove the Trademark from the Register and advertise the factum of removal in the Journal onlyafter a Notice in Form O-3 has been issued.

That the said removal of registered trademark cannot be done without prior notice to the registered proprietor in theprescribed form.

Mere expiration of the registration by lapse of time and failure of the registered proprietor of the trademark to get thesame renewed, by itself, does not lead to the conclusion that the same can be removed from the Register by theRegistrar of Trademark without complying with the mandatory procedure prescribed in Section 25(3) of the Act readwith Rule 67 of the Rules. Such removal without due procedure will itself be laconic and illegal.

That the plea for the Registrar that the application for restoration and renewal of the mark was beyond the timeprescribed in Section 25(4) and Rule 69 could not be accepted because the removal of the mark from the registerwas not in terms of Section 25(3) read with Rule 67 & 68.

Since the mandatory Notice in Form O-3 had not been given prior to the removal of the mark, the application seekingits restoration and renewal could not be said to be barred by time.

It was also held by the Supreme Court in Sarla Goel v. Kish an Chand,3emphasized importance of following the statutory

procedure step by step and held an earlier step to be a precondition for the next step and it being impermissible to straightwayjump to the last step.It was further held that the last step can come only after step has been taken. When the act itself hasprescribed the procedure for removal, it is not justified in holding the said procedure to be not mandatory or not binding on theRegistrar to uphold the removal even if such procedure is not followed.

4It is also a well settled principal of law, which states

that rules framed under a statute cannot override the statute. Similarly the Constitutional Principles applicable to tangibleproperty would apply to intangible intellectual property also and which bar a person from being deprived of his property save inthe manner prescribed by law.

Neither the Act nor the rules prescribe any limitation for applying for restoration and renewal in a situation where the removal ofthe mark from the register is without issuing the notice in Form O-3. The Registrar would be entitled to take into considerationthe relevant factors such as whether the same or a similar mark has in the interregnum being registered by any other personetc. Once it is held that for the Registrar to invoke the bar of limitation of one year for applying for renewal, the notice underForm O-3 is mandatory, the Registrar cannot be permitted to invoke the presumption of the removal having been done in the

manner prescribed in law.

Similarly, the period of one year in Section 25(4) is also be read as commencing from the date of removal and not from the dateof expiration of the last registration, where removal is not immediately after the expiration of the last registration. Else therewould be no logic/ sense in Section 26 providing for deeming the mark on the register for the purposes of any application forregistered proprietor of the same or similar mark. The registered proprietor has the right to seek restoration and renewal duringthe period of one year. The intention of the legislature was to vest the right of renewal only for period of one year from the dateof expiration of last registration; the operations of Section 26 would also have been for one year from the date of expiration ofthe last registration of the trademark and not one year from the date of removal. It was also held that it would be redundant ifthe right of the registered proprietor to restoration and renewal of the mark extinguish on an expiry of one year from theexpiration of the last registration and irrespective of whether the trademark is actually removed from the register immediately onsuch expiration or after considerable time. In all the removal without following the mandatory procedure prescribed thereof isbad in law. It was finally directed that the Registrar should restore/renew the mark after satisfying that the Respondent is theregistered proprietor/successor of the registered proprietor of the trademark which has expired and that in the interregnumsame/similar marks are not registered.


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Footnotes

1 MIPR 2013 (1) 246

2 Ibid.

3 (2009) 7 SCC 658earlier

4 Thakral Mechanical Works v. P.M Diesels, (2009) 2 SCC 786

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought aboutyour specific circumstances.

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