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Who is first in the world, is the Ultimate Test in Trademark Dispute

The case under consideration revolves around the assertion of trademark rights by the Plaintiff in the Indian market, despite the absence of actual use of the mark within India. The central contention raised by the Plaintiff pertains to the recognition and reputation of their mark in the global pharmaceutical market, which, they argue, extends to India by virtue of transborder reputation.

Key Legal Analysis:
The crux of the Court's ruling lies in its recognition of the principle that the absence of local use does not necessarily preclude the protection of trademark rights, especially if the mark enjoys transborder reputation. This principle finds resonance with established international norms, particularly the TRIPS Agreement, which acknowledges the importance of protecting trademarks with significant reputation beyond national borders.

Who is First in the World Market , is the Test:
The Court�s assertion that being first in the world market can confer protection even in the absence of local use underscores the recognition of the global interconnectedness of markets, particularly in industries where innovation and reputation play pivotal roles. In the pharmaceutical sector, where advancements in medical sciences are shared internationally, the dissemination of information through various channels such as advertisements, publications, and R&D activities can contribute significantly to the establishment of transborder reputation.

The judgment acknowledges the unique characteristics of the pharmaceutical industry, where medical practitioners, including doctors and researchers, actively engage in global exchanges of knowledge and information. The Court recognizes that the reputation of pharmaceutical products often transcends national boundaries due to the reliance of medical professionals on global advancements and research findings.

Even through advertisements, publications, and promotional activities, trans border reputation can be established.

Furthermore, the Court's emphasis on the liberal interpretation of the test of trans border reputation reflects a pragmatic approach to accommodate the complexities of modern commerce. By considering various forms of evidence, including advertisements, publications, and promotional activities, the Court acknowledges the multifaceted nature of reputation building in the pharmaceutical sector.

The Case Discussed:
Case Title: Daiwa Pharmaceuticals Co Ltd. Vs Daiwa Pharmaceuticals Pvt. Ltd.
Judgment/Order Date: 16.04.2024
Case No: Comm IP Suit No. 82 of 2023
Neutral Citation: 2024:BHC:OS:6232
Name of Court: Delhi High Court
Name of Hon'ble Judge: R.I.Chagla,H.J.

Ideas, thoughts, views, information, discussions and interpretation expressed herein are being shared in the public Interest. Readers' discretion is advised as these are subject to my subjectivity and may contain human errors in perception, interpretation and presentation of the fact and issue involved herein.

Written By: Advocate Ajay Amitabh Suman, IP Adjutor - Patent and Trademark Attorney
Email: [email protected], Ph no: 9990389539

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