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The Dishonesty In Adoption Of A Trademark

Its a case where the Hon'ble High Court of Mumbai was pleased to grant an ex parte order of injunction in favour of the plaintiff after observing that adoption of the defendant was dishonest.

The Plaintiff filed the subject matter Suit on the basis of proprietary rights in the Trademark GLEAM","GLEAM-1" and "GLEAM-2 in relation to medicinal and pharmaceuticals products falling in class 05.

As the Plaintiff was registered proprietor of its trademark GLEAM","GLEAM-1" and "GLEAM-2, the contained the relief of infringement and passing off both.

The Suit was filed against user of similar Trademark V-GLIM M1, V- GLIM M2 & V-GLYME-M80 by the Defendant in relation to medicinal and pharmaceuticals products falling in class 05.

The Plaintiff became aware of Defendant's impugned product under the impugned Trademark when the same came across the listing of impugned Trademark on web site INDIAMART.

Subsequently the plaintiff's representative contacted the defendants and there after few samples of impugned product of the Defendants were delivered at WhatsApp of Plaintiff's representative.

The Court observed that adoption of impugned Trademark V-GLIM M1, V- GLIM M2 & V-GLYME-M80 by the Defendants prima facie appears to be dishonest.

The Court held that the rival marks are used in respect of pharmaceutical products and therefore stricter approach will have to be taken.

The court also observed that the ingredients of products of the Plaintiff and that of the Defendants are different and therefore disastrous consequences cannot be ruled out.

Hence there was every possibility of likelihood of confusion and association vis-a-vis use of the impugned Trademark V-GLIM M1, V- GLIM M2 & V-GLYME-M80 by the defendant.

Moreover the mark "GLEAM" of the Plaintiff is registered in Part A of the Trade Mark Register as a distinctive mark. By mere adding V prior to the Trademark V does not reduce the chance of confusion.

Another important factor for granting ex parte injunction in favour of the Plaintiff was that the Hon'ble Court observed that adoption of impugned Trade Mark by the Defendant was dishonest.

There was earlier history of litigation between the parties. At the earlier occasion, when the plaintiff filed notice of opposition against trademark of defendant, the defendant got its trademark abandoned by not filing the counter statement.

Hence the defendant was already aware of plaintiff's activity. In spite of that the impugned Trademark was dishonestly adopted by the defendant.

This was also another reason for getting the matter titled in favour of the plaintiff, besides the another reason like plaintiff being the prior adopter, prior user and prior registered proprietor of the subject matter trademark. Off course confusion and deception was another obvious reason for grating ex parte injunction in favour of the Plaintiff.

Accordingly the Hon'ble High Court of Mumbai was pleased to grant an ex parte order of injunction, there by restraining the Defendants from using the Trademark V-GLIM M1, V- GLIM M2 & V-GLYME-M80 in relation to medicinal and pharmaceuticals products falling in class 05.

Case Law Discussed:
Date Of Judgement: 12.07.2022
Case: Interim Application No. 3098 Of 2022 In Commercial Suit (Ip) No. 295 Of 2022
Name Of Hon'ble Court: High Court Of Bombay
Name Of Hon'ble Judge: The Honourable Justice R.I. Chagla
Case Title: Franco Indian Pharmaceuticals Vs Vatican Lifesciences Pvt. Ltd.

Written By: Ajay Amitabh Suman, IPR Advocate, Hon'ble High Court of Delhi
Email: [email protected], 9990389539

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