07 June 2018

No passing-off in abbreviation used along with another different mark

In a case involving passing-off by use of trademark VAC-PAC, Delhi High Court has dismissed the suit with costs. It observed that plaintiff used the mark with his another trademark SUPERON, while defendant used it along with his mark GMM/arc, which is totally different.

The High Court in Superon Schweisstechnik v. Modi Hitech observed that there was no identity or deceptive similarity qua the two main trademarks of the parties, and that the different trademarks were such as to distinguish the goods of the plaintiff from that of the defendant.

Further, observing that the suit did not involve infringement but only passing-off and hence the Court can examine besides the trademark, the other aspects of the get-up of the packaging of the two parties, the Single Judge noted that packing of competing products was completely different. Relying on earlier decision of the Court in the case of Marico Limited, it was held that mark VAC-PAC being abbreviation of ‘Vacuum Packaging’, will not entitle exclusive ownership.

It was also noted that use of the expression VAC-PAC for only about 13 years will not be such a large length of time so as to make the abbreviation an exclusive distinctive trademark of the plaintiff.

The Court besides awarding actual costs in favour of defendants also imposed costs on the plaintiff for deposit with website www.bharatkeveer.gov.in, for abuse of process of law and for wasting judicial time.

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