Procedural History:
The petitioner, Mankind Pharma Limited, filed a petition seeking the cancellation/removal of the trademark "NIKIND" registered under no. 2290683 in Class 5 by the respondent, Arvind Kumar Trading and Anr. The petitioner claimed to have adopted the mark "MANKIND" in 1986 and had acquired numerous trademarks with the word "KIND." The petitioner alleged that the impugned trademark "NIKIND" was deceptively similar to their registered mark "NIMEKIND" and was likely to cause confusion in the market. The petitioner also argued that the impugned trademark had been wrongly entered in the Register and was liable to be cancelled.

The Intellectual Property Appellate Board (IPAB) initially issued notice in the case in November 2018, but due to the enactment of the Tribunals Reforms Act, 2021, the matter was transferred to the High Court of Delhi. Despite notice, the respondent did not appear or file a counter-statement.

Court: High Court of Delhi
Case No.: C.O. (COMM.IPD-TM) 146/2022
Date of Decision: 18th April, 2023

Issues Presented:

• Whether the impugned trademark "NIKIND" is deceptively similar to the petitioner's registered mark "NIMEKIND" and likely to cause confusion in the market?
• Whether the impugned trademark was wrongly entered in the Register and is liable to be cancelled?
• Whether the impugned trademark is liable to be removed for non-use?

Rules of Law:

• Section 11(1) and 11(2) of the Trademarks Act, 1999 - Prohibits the registration of trademarks that are identical or deceptively similar to prior registered trademarks and likely to cause confusion.
• Section 47(1)(a) and (b) of the Trademarks Act, 1999 - Allows for the removal of trademarks for non-use if a continuous period of five years has elapsed since the date of registration without any bona fide use.
• Section 57 of the Trademarks Act, 1999 - Provides for the cancellation of wrongly entered trademarks.

Analysis and Reasoning:
The court analyzed the petitioner's claims and supporting evidence, including the extensive usage of the mark "MANKIND" and the registration of various marks containing the word "KIND." The court also considered the similarity between the impugned trademark "NIKIND" and the petitioner's registered mark "NIMEKIND" and the identical nature of the goods covered by both marks.

The court found that the adoption of the impugned trademark by the respondent was likely to cause confusion in the market and was an attempt to trade upon the goodwill and reputation of the petitioner. The court concluded that the impugned trademark's registration was in violation of Section 11(1) and 11(2) of the Act and was liable to be cancelled.

The court further held that the respondent failed to rebut the petitioner's claim that the impugned trademark had not been used in relation to the registered goods, making it liable for removal under Section 47(1)(a) and (b) of the Act.

Holding and Decision:
The court allowed the petition and ordered the removal of the impugned trademark "NIKIND" from the Register of Trade Marks.

Implications and Significance:
This case reaffirms the importance of protecting well-known trademarks and preventing the registration of deceptively similar marks likely to cause confusion in the market. It highlights the courts' willingness to cancel wrongly entered trademarks and remove trademarks for non-use.

Conclusion:
The High Court of Delhi held that the impugned trademark "NIKIND" was deceptively similar to the petitioner's registered mark "NIMEKIND" and likely to cause confusion. The court ordered the cancellation and removal of the impugned trademark from the Register of Trade Marks. This decision reinforces the protection of well-known trademarks and strengthens the enforcement of trademark rights in the jurisdiction.