26 August 2019

Trademark in name of company – Use in a hologram not amounts to use any differently

26th August

The Delhi High Court has held that usage of a word mark in the hologram by the defendant would not amount to use of the word any differently from that of plaintiff.

The Court also noted that registration of word ‘TOASHA’ by the defendant was of the word mark in capital letters and not of hologram which  would not constitute use of the registered trade mark of the defendants.

Granting interim injunction in a case of passing-off against the defendant, it also observed that the goodwill of the business squarely rested in the trade name ‘TOASHA’ and which, as not disputed, was identical in the names of the firms of the plaintiff and the defendant.

The Court in the case of Toasha Agencies v. Siddhant Choudhary also held that even if the defendant was able to secure registration and the plaintiff did not have it, once it is established that the plaintiff is the prior user of the trademark, Section 27(1) of the Trademarks Act cannot be pleaded.

The High Court, for this purpose, observed that Section 27(2) of the Trademarks Act states that nothing in the Trademarks Act shall affect rights of action against a person for passing-off.

The Court also held that once the reason for which permission to use trademark comes to an end, owner of trademark can restrain the person, to whom permission was given, from using the trademark.

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