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Recent Judgments Pertaining To Intellectual Property

Case Title: Ultra Tech Cement Limited and another v/s Ultra Plus Cement Pvt. Ltd. and Ors
1. Judgment date: 04.11.2022
  Suit No. CS Comm No. 755 of 2022
  Name of Court: High Court of Delhi
  Name of Hon'ble Justice: Navin Chawla H.J.
Plaintiff's Trademark: ULTRA TECH
Plaintiff's business and Services: Manufacturing, Marketing and Sale of Cement and allied Products.
Plaintiff's user: Since 2003
Plaintiff's Trademark has been declared as Well Known Trademark.
Defendant's Trademark: Ultra Plus
Defendant's business: Cement and allied Services
Defendant's claimed user: 2008

Injunction was granted in favor of the Plaintiff and against the Defendant on the following grounds:
1. Plaintiff has established goodwill and reputation in relation to Ultra formative trademark.
2. Both the Trademarks of parties are deceptively similar.
3. The Court decided issue of territorial jurisdiction in favor of the Plaintiff as averments made in the plaint was found to be sufficient enough confer jurisdiction.
4. The Court also rejected reliance of Defendant on registration in favor of Shree Balaji Trading as mere presence of such registration is no proof of evidence.
Case Title: Louis Vuitton Malletier Vs Future Times Technology India Private Limited and Ors
Judgment date:03.11.2022
Suit No. CS Comm No. 222 of 2022
Name of Court: High Court of Delhi
Name of Hon'ble Justice: Prathiba M Singh H.J.

Suit has already been decreed vide Order dated 02.08.2022. The Plaintiff has given up the relief pertaining to Damages. However the bill of costs to the tune of Rs. 32,29,416/- was filed by the Plaintiff.In view of the above, cost of Rupees 20,00,000/- was awarded in favor of the Plaintiff and against the Defendant.
Case Title: Geetanjali Studio Private Limited and another v/s Rahul Mamtani
Judgment date:31.10.2022
Suit No. CS Comm No.539 of 2021
Name of Court: High Court of Delhi
Name of Hon'ble Justice: Prathiba M Singh H.J.

Plaintiff's Trademark: GEETANJALI
Plaintiff's business and Services:salon, beauty parlor specializing in hair dressing, styling and make-up services.
Defendant's Trademark: GEETANJALI
Defendant's business: Saloon and Beauty Parlour

Injunction was granted in favor of the Plaintiff and against the Defendant as Defendant , being ex licensee of Plaintiff was wrongly using Plaintiff's Trademark even after termination of the license agreement.
Case Title: Sotkon SP SLU v/s Western Imagery
Judgement date:31.10.2022
Suit No. CS Comm No. 484 of 2022
Name of Court: High Court of Delhi
Name of Hon'ble Justice: Prathiba M Singh H.J.

The subject matter Suit was filed by the Plaintiff seeking the relief of permanent injunction against the Defendant from infringing Plaintiff's Indian Patent No. 329620 titled as 'Subsurface System for the Collection of Refuse'.

Vide order dated 05.10.2022 , interim injunction order dated 05.10.2022, the Hon'ble High Court of Delhi was pleased to retrain the defendants', their proprietors, partners etc. from infringing the plaintiff's registered patent IN 329620. Defendants were also restrained from using the photographs, illustrations from the plaintiff's brochure and the technical specifications of the products that amount to infringement of plaintiff's copyright.

Even after passing of the ex parte injunction order the Defendant kept on supplying impugned product, hence the subject matter contempt petition was filed.

The Defendant pleaded that they were supplying the subject matter products only as per the Government tender. However, the Hon'ble High Court of Delhi was pleased to held the Defendant guilty of contempt , rejecting this argument of the Defendant and further cost of Rupees two Crores was imposed upon them.
Case Title: Elsevier Ltd. Vs Alexandra Elbkakyan
Judgement date:03.11.2022
Suit No. CS Comm No. 540 of 2020
Name of Court: High Court of Delhi
Name of Hon'ble Justice: Prathiba M Singh H.J.

The subject matter application under order 6 Rule 17 CPC was filed by the Defendant where by the same sought to withdraw the admission made by the Defendant that the same does not dispute the ownership of plaintiff in the subject matter copyright.

The Defendant has admitted in the written statement the ownership of plaintiff in subject matter copyright.Now by virtue of subject matter application under Order 6 Rule 17 CPC, the same sought to withdraw the admission made to that effect.

However the Hon'ble High Court of Delhi was pleased to reject this application of the Defendant under Order 6 Rule 17 CPC on the ground that by virtue of application under Order 6 Rule 17 CPC, the admission made in the written statement can not be withdrawn.
Case Title: Jindal Industries Vs Registrar of Trade Marks
Judgement date:03.11.2022
IPD Trademark Appeal :C.A.(COMM.IPD-TM) 134 of 2021
Name of Court: High Court of Delhi
Name of Hon'ble Justice: Prathiba M Singh H.J.

The subject matter Appeal was filed by the Appellant under Section 91 of the Trade Marks Act, 1999 challenging the order dated 17th September, 2019 passed by the Trade Marks Registry where by the trademark application of the Appellant JINDAL within the outline of India has been rejected.

The Registrar of Trademarks has rejected the by the trademark application of the Appellant JINDAL within the outline of India on the ground that the subject matter trademark application was non distinctive and that the same was also prohibited under the provisions of the Emblems and Names (Prevention of Improper Use) Act, 1950.

However, the Hon'ble High Court of Delhi was pleased to set aside the subject matter order on the ground that in the previous orders as cited by the Appellant, the Hon'ble High Court of Delhi has already observed that trademark JINDAL within the outline of India was not prohibited under the provisions of the Emblems and Names (Prevention of Improper Use) Act, 1950.
Case Title: Visage Beauty and Healthcare Vs Registrar of Trademarks
Judgement date:03.11.2022
IPD Trademark Appeal :C.A.(COMM.IPD-TM) 65 of 2022
Name of Court: High Court of Delhi
Name of Hon'ble Justice: Prathiba M Singh H.J.

The subject matter Appeal was filed by the Appellant under Section 91 of the Trade Marks Act, 1999 challenging the order dated 27.10.2020 passed by the Trade Marks Registry where by the trademark application of the Appellant GLOW GETTER in relation to cosmetics, beauty care products, skin care products, hair care products has been rejected under Section 9(1)(b) of the Trade marks Act, 1999 , on the ground that said mark consists of words that may be used in trade to designate the kind, quality of goods etc.

However, the Hon'ble High Court of Delhi was pleased to set aside the subject matter order on the ground that the word 'GLOW' be a word which may be used by various third parties in res cosmetics. However, the combination GLOW-GLITTER as a composite mark cannot be rejected in Sections 9 and 11 of the same does not directly describe the kind, quality etc of products concerned.
Case Title: Aman Engineering Works Vs Registrar of Trademarks
Judgement date:04.11.2022
IPD Civil Revision :CM M IPD No. 5 of 2021
Name of Court: High Court of Delhi
Name of Hon'ble Justice: Navin Chawla H.J.

The subject matter Civil Revision Petition was filed against Order dated 07.01.2020 passed by the Senior Examiner of Trade Marks , Delhi in TM-M review Petition in relation to Trademark application under No. 631248 for the Trademark RITE KRANTI where by the said review petition was allowed.

The fact of the case was that the Respondent No.2 filed review petition on the ground that though Examination Report has been received, however no hearing notice was received. Because of the same , the Respondent No.2 could not attend the hearing , resulting in abandonment of the subject matter Trademark.

It was this order of abandonment, which was allowed by the Respondent No.1 in the review petition filed by the Respondent No.2 beyond the prescribed period.

The Hon'ble High Court of Delhi was pleased to set aside the order passed by the Registrar of Trademark by observing that Section 131 of Trade Marks 1999 can not be invoked to extend the time limit of one month prescribed for filing the review petition.

Section 127(c) of the Trade Marks Act 1999 and Rule 119 of Trade Marks Rule prescribed one month of time, which time has been held to be mandatory by the Hon'ble High Court Delhi. As in the present case, the review petition was filed after inordinate delay, the allowance of the review petition by the Respondent No.2 was held to be wrong and accordingly set aside.
Case Title: Avery Dennison Corporation Vs Controller of Patent and Design
Judgement date:04.11.2022
IPD Commercial Patent Appeal No. :C.A. (COMM.IPD-PAT) 29 of 2021
Name of Court: High Court of Delhi
Name of Hon'ble Justice: Prathiba M Singh H.J.

The subject matter IPD Commercial Patent Appeal No. :C.A. (COMM.IPD-PAT) 29 of 2021 was filed by the Appellant against Order dated 12.08.2021 passed by the Controller of Patent where by the application for grant of a patent titled 'Notched Fastener' bearing Application No. 5160/DELNP/2013, filed on 10th June, 2013 under Section 15 of the Patents Act, 1970 was refused on the ground that the claimed subject matter of the subject patent does not constitute an invention under Section 2(1)(j) of the Act. The reason for rejection was that the subject matter application lacks inventive steps in view of prior arts D 2 and D3.

The Hon'ble High Court of Delhi highlighted the 4 approaches to evaluate inventive steps. These are as under:
1. Obvious to try approach: This approach involves an analysis of whether in view of the teachings/solutions proposed in the prior art, it was obvious to try and arrive at the subject invention.
2. Problem/solution approach: This approach considers whether in the light of the closest prior art and the objective technical problem, the solution claimed in the invention would be obvious to the skilled person. If the skilled person can decipher the solution being claimed, then the subject matter is held to be obvious.
3. Could-Would Approach In this approach the question that is raised is whether there is any teaching in the prior art as a whole that would and not simply could have prompted a skilled person, with the knowledge of the objective technical problem, to either modify or adapt the closest prior art to arrive at the subject matter of the claims.
4. Teaching Suggestion Motivation (TSM test) This test originated in the USA as per which, if by the Teaching, Suggestion or Motivation from the prior art, an ordinary skilled person can modify the prior art reference or combine prior art references to arrive at the claimed invention, then the subject matter being claimed is obvious.
After discussing the afore mentioned approaches, the Hon'ble High Court of Delhi was pleased to observed that the subject matter Patent Application does not lack inventive step as the subject patent, thus, tries to address inconsistencies while cutting or severing of the fastener from the fastener stock, reduction in the size of the side members, variation in the cuts and the locations thereof. Accordingly the order passed by the controller of Patent was set aside.
Case Title: Silver maple Healthcare Services Pvt.Ltd. Vs Dr.Tajinder Bhatti
Judgement date:02.11.2022
Suitl No. :CS Comm No.430 of 2022
Name of Court: High Court of Delhi
Name of Hon'ble Justice: Jyoti Singh H.J.

The Hon'ble High Court of Delhi was pleased to adjudicate application of the Defendant under Order 7 Rule 11 CPC. The Plaintiff has given up the claim of Infringement for Trademark DHI. However the Plaintiff insisted for the claim of disparagement.

The Defendant basic argument was that the suit is liable to be rejected under the provision of Order 7 Rule 11 CPC as the same suffer from mis-joinder of parties.

The Hon'ble High Court of Delhi reiterated the well settled proposition of law that while adjudicating application under Order 7 Rule 11 CPC, only averment made in the plaint has to be seen.

The defenses raised by the Defendant in the written statement is not required to be seen while deciding application under Order 7 Rule 11 CPC.

The Court rejected application of the Defendant under Order 7 Rule 11 CPC by observing that mis joinder of necessary party can not be a ground for rejection of Plaint under the provision of Order 7 Rule 11 CPC.
Case Title: Frankfinn Aviation Services Pvt. Ltd. Vs Tata Sia Airlines Ltd.
.Judgement date:28.10.2022
Suit No. CS Comm No. 54 of 2022
Name of Court: High Court of Delhi
Name of Hon'ble Justice: Jyoti Singh H.J.

Plaintiff's Trademark: FLY HIGH
Plaintiff's business and Services: imparting training in hospitality, aviation, travel management and customer service
Plaintiff's user: Since 2004
Defendant's Trademark: FLY HIGHER with VISTARA
Defendant's business and Services. Operating a full Airline services.
Defendant's claimed user: 2018

Though Plaintiff was holding registration for the Trademark FLY HIGH , the Hon'ble High Court of Delhi was pleased to vacate the injunction granted in favour of the Defendant and against the Plaintiff on the following grounds:
1. Plaintiff's Trademark FLY HIGH was highly descriptive and laudatory in relation to the goods and services, the Plaintiff was dealing with.
2. The teem of the Defendant FLYING HIGHER was used in conjunction with its Well Known Trademark VISTARA.
3. The Defendant was using the term FLYING HIGHER not in a Trademark significance but as a descriptor.
4. Trademark FLY HIGH/FLYING HIGHER has been filed in the name of various parties in the records of Trademarks Registry.
5. Trademark FLY HIGH/FLYING HIGHER is common to Trade and it has been used by various parties.
6. Plaintiff suppressed this fact that it has disclaimed HIGH word in the Trademark FLY HIGH.
7. Competing business, services and Trade Channel of the Plaintiff and the Defendant are Different.
8. The Defendant does not deal with the classes in which the Plaintiff holds registration , i.e. Class 16 and 41.
9. The Plaintiff does not hold registration in the class 12 and 39 in relation to goods and business, the Defendant deals with.
10. It can not be said that the Defendant is guilty of misrepresentation.
11. The use of term FLYING HIGHER does not amount to be use in a manner which render it as a Trademark use.

Written By: Ajay Amitabh Suman, IPR Advocate, Hon'ble High Court of Delhi.
Email: [email protected], Ph no: 9990389539

Note: Information is shared in the public interest. It should not be taken as a substitute for legal advice as it may contain errors of understanding and presentation, including clerical errors.