We have seen many suits being filed in the Court pertaining to infringement and passing off, but this time the in the trade mark history of India the Court has handed down a judgment where mark is arbitrary in nature. The plaintiff, a small company has win over a big corporation by proving a passing off case against it.
In the instant case the plaintiff filed a suit to prevent the defendant from using the mark Aqua for mobile phones. The background of the case lies in the fact that the defendant has launched their phone Intex Aqua in 2012 to ride upon the goodwill of the plaintiff of the plaintiff as the plaintiffs are the prior users of the mark “Aqua” since 2009.
Dealing with the first issue the Court held that Aqua is an inherently distinctive mark when used for mobile phones and their accessories is protected under the Act. The Court was satisfied that the plaintiff has been using the mark “Aqua” since 2009 and is the prior user of the same. The defendant has been using the mark aqua as a sub-mark since 2012. It was also pronounced that use of Intex along with Aqua does not negate the likelihood of confusion in the minds of the people. Although the mark “Aqua” was being used by the defendant as a sub-brand and not as a main brand, still the public would associate that mark with the plaintiff, they being the prior user.
This ruling of the Delhi High Court has once again proved that the balance is always tilted toward the prior user of a trade mark. Even though one cannot claim exclusivity over the mark “Aqua” but the prior users are always favored by the Courts of Law.