in Tirumala Dairy Products pte LTD v Swaraj In the case of India Industries LTD, The interim injunction granted by the Madras High Court confirms the following view: Although the defendant did not sell the products or services bearing the contested trademarks, Plaintiffs can still Sue for trademark infringement. The court prohibited the defendant from using any registered trademark with the plaintiff "Thirumala" and "Thirumala Milk" Similar mark.

Tirumala (Tirumala) It's a famous pilgrimage site in India. The trademark used by the defendant "Tirumalaa Daairy" Similar to the plaintiff's trademark. Although the spelling of the logo is different, But it's hard to tell.

from 1998 Since last year, The plaintiffs have been using the trademark "Thirumala Milk" Use it on dairy products. "Tirumala Milk" and "Thirumala Milk-Source of Purity" Such related trademarks have been listed in the No 16 Class sum control 29 Class registration. The defendant applied for registration in the same class "Tirumalla Oil Refinery" and "Tirumalla device" trademark.

Plaintiff objects, The defendant counterclaims that the trademark is its original. Defendant approached plaintiff's clients and business associates, And online and offline advertising with a competitive trademark "Tirumalaa Daairy" Products of. Because the voice is similar and there is the possibility of deception, The plaintiff sued the defendant company and its directors for trademark counterfeiting and infringement, And seek 1 Crore rupees (about 13. 5 Ten thousand dollars) damages.

The accused challenged the jurisdiction of the Madras High Court in the case, Opposing the plaintiff's claim that the plaintiff misled the court by concealing material facts.

The plaintiffs claim that because they operate a business in the Chennai area, The court has the power to rule on this. The court sided with the plaintiffs on that point. The defendant also stated that, The plaintiffs submitted excessive marketing and advertising data, To mislead the court about the plaintiff's market position. The court refused to examine the accounts, say "The defendant can cross-examine the CPA at any time during the trial about the veracity of such data as sales and advertising expenditures" .

Plaintiff claims "Tirumala" Trademarks gain prominence through use, Directly related to the plaintiff's products. The court upheld the plaintiff's claim. The defendant countered that, The plaintiff has no exclusive right to the trademark. The court stated that, The defendant actively advertised its products, But it doesn't actually sell the product on the market. The court found that the defendant had used similar trademarks to take advantage of the plaintiff's reputation. This act constitutes passing off. The Trademark Registry raised questions when the plaintiff registered the trademark because the trademark had been used for products and services in two different industries.

The plaintiff explains that, After obtaining the registration, they will use the trademark in other industries. The court rejected all the defendant's claims, Held that the plaintiff was entitled to trademark protection. The defendants undertook to make substantial changes to their labelling and packaging, And said it would be used on dairy products "Moosips" trademark. The defendants also submitted designs for new packaging, It was printed in a smaller font "Tirumalaa" Trademark of. The plaintiffs object.

The court said the promise to make changes was not sincere enough. The court granted a temporary injunction against the defendant, Until the court makes its final decision. This case shows that, Even if the infringer did not profit, The illegal use of trademarks can also have an impact. The use of an infringing trademark to promote a product before the sale of the product is equivalent to the actual sale of infringement. The court's decision confirms, Although the infringer did not profit, Its behavior may also constitute trademark infringement.

(Compiled from www. lexorbis. com)

Reprinted from China Intellectual Property Network   translation: Rason group　proofread: Wang Dan

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