21 June 2017

Trademarks – Effect of part of mark being generic and common to particular trade

Observing differences, including differences in trade dress, label and get up of the two trade-names – ‘Pinch of Spice’ and ‘Pinch of Salt’, the Delhi High Court has on 24-05-2017 vacated the interim injunction it earlier granted in favour of the plaintiff. The marks were also found to be dis-similar phonetically and in sound, and having no visual resemblance. The Court in this regard held that the word “PINCH” is a common generic word and is related to the restaurant and dining industry.

Noticing that any symbol, word or get up commonly used by traders in connection with their trade and in respect of which no particular trader can claim an exclusive right to use is considered common to that particular trade, or public juris, it was held that sub-section 17(2) of the Trademarks Act comes to the aid of the defendant inasmuch as it stipulates that a trademark which is common to the trade or is otherwise of a non-distinctive character, registration thereof, will not confer any exclusive right in the matter forming only a “part” of the “whole” of the trademark so registered.

Further, non-expansion of plaintiff’s outlet to other cities was considered by the court as evidence of absence of renowned reputation while it also observed that high-level reputation, which the plaintiff claimed, was not established by any document. It was also noticed that the word “PINCH” was being used in class 29 (dried and cooked foods, jellies, jams, fruits sauces, eggs, milk and milk products) by other users also, and had not attained a secondary meaning to the goods and services of the plaintiff. The interim injunction granted earlier was hence vacated. 


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