20 October 2014

Trademark – Delay in action against alleged passing off is fatal

A proprietor of the trade mark who knowingly watches his competitor grow in the market and takes no action can claim no exclusivity in his own trade mark. Bombay High Court by its order dated 7-10-2014, while holding so noted that against the defendant’s reply to the plaintiff’s first cease and desist notice wherein the defendant did not merely dispute the plaintiff’s contentions but specifically asserted that it was in the market and that it would continue to market its products under the mark, the plaintiff did nothing for long and hence would be deemed to have affirmed his rival’s use of the mark.

The court further held that principle as laid down in the case of Bal Pharma can only apply where the plaintiff moves in a reasonable time-frame. The court finally held that unconscionable and unexplained delay on the part of the plaintiff was enough to defeat the claim.


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