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20 May 2016

Trademark – Non-receipt of consideration for assignment not relevant when same registered

The Delhi High Court has held that even in case of non-receipt of consideration for assignment of the trademark by the assignor, unless the entry made in the Trademark Register is removed by the appropriate authority, the assignor has no right to infringe the same very mark which is assigned by him. The court on 22-4-2016 in the case of Saurabh Agrotech Private Limited v. Radhey Shyam Agencies also noted that the assignment deed itself stated that the consideration was received and that the entry in Trademark Register was not challenged by the assignor, by filing a rectification within the time prescribed.

In respect of effect of pendency of earlier suits, it was held that pendency of suit for partition by the plaintiff prior to the present suit has no consequence as far as filing of infringement suit is concerned. Further observing that the defendants had not produced any detail of sales turnover or advertisement expenses of any of its products under the trademark in question, the Court rejected the contention of ‘long use’ by the assignor.

Lastly, noting that plaintiff is the registered proprietor of the trademark and that the same was used earlier than the defendants, the balance of convenience was in favour of the plaintiff and against the defendants, it was held that in case the injunction order is not passed, the plaintiff will suffer irreparable loss and injury.