A Single Judge of the High Court of Delhi on 24-12-2016 has granted interim injunction in favour of the plaintiff observing that they had established a strong prima facie case for priority showing prior use and goodwill in the mark ‘Aqua’ in relation to mobile phones.
The Court in this case of AZ Tech (India) v. Intex Technologies also held that ‘Aqua’ being an arbitrary mark in its application to mobile phones required no proof of secondary meaning, and that mere filing of a search report without cogent and clear evidence of user cannot establish that the mark is common to trade.
It was also observed that the defendants themselves had applied for registration of ‘Aqua’ and hence could not be permitted to argue that the same is descriptive.
Rejecting the contentions of the defendants in respect of reliance on certain invoices produced by the plaintiff, the Court acknowledged the priority rights of the plaintiffs to adopt the mark in respect of mobile phones. Reliance in this regard was also placed on Facebook pages, YouTube video, supplier contracts with third parties, sponsorship contract for marketing, coverage of launch of mobile phones and an article featuring in Phone RPT India.
Further, defendant’s contention that since they have used the word ‘Intex’ in conjunction with ‘Aqua’ hence there is no likelihood of confusion, was also rejected by the Court observing that such use may not be sufficient to dispel confusion when ‘Aqua’ was being marketed as separate sub-brand.
Lastly the Court was of the view that there was no misrepresentation which would disentitle the plaintiffs from the equitable relief of injunction.