The protection of prior, continuous, and regular user of a descriptive mark, and the significance of acquired secondary meaning in determining trademark rights.

( 1 ). The short controversy for the limited purpose of an interlocutory injunction is whether the name and style of "aaj TAK" and its logo having distinctive features in relation to the News Channel is a generic term and as such is not the monopoly of any particular person either in relation to the news programme or otherwise. Put briefly the relevant facts are as under:-

( 2 ). The plaintiff is carrying on its business of the production of the programme which is telecast on the doordarshan Channel and transmitted ail over India and is the producer of the news programme in Hindi under the name and style of "aaj TAK". It has been using the said trade name since 1. 6. 95 though had applied for its registration before the trade mark authorities on 13. 9. 95, It is also the case of the plaintiff that the layout and the script of words "aaj TAK" is an artistic, exclusive and distinctive style and as a consequence the readers have identified the plaintiff s production not only by the trade mark "aaj TAK" but also by its peculiar scriptive style. It is claimed that the plaintiff s name of the production "aaj tak" has become very popular on account of its continuous user and wide publicity through advertisements.

( 3 ). I Some time in the last week of July, 1999 the plaintiff discovered from the reception office of the maharashtra Sadan, New Delhi where the copies of the newspapers are circulated that the defendants have adopted the name of its news programme by printing and publishing the name and style of Khabrein "aaj TAK". The adoption and use of the mark "aaj TAK" was found to be an exact reproauction of the mark of the plaintiff in respect of their publication. The defendants are using this name without prior permission of the plaintiff. It is averred that the confusion or deception is inevitable. On account of this the plaintiff has suffered damages as to its name, reputation and goodwill and business and is likely to suffer further damages unless the defendants are injuncted from using the trade mark/name of the magazine "aaj TAK" in respect of their magazine or newspaper or periodicals as it amounts to "passing off".

( 4 ). As against this the defendant has questioned the right to a proprietorship of the plaintiff as to the mark "aaj TAK" mainly on the following grounds:-

(I) that the words "aaj TAK" are completely descriptive in nature and have dictionary meaning and, therefore cannot be monopolised by any particular party or person; (ii) that the plaintiff has come with unclean hands as it has concealed the material fact as it has represented that it has also a magazine which is sold from the same counter as that of the defendants whereas no magazine by the name of "aaj TAK" has ever been printed or published by the plaintiff; (iii) that the defendant hass a registration under the Press and Registration of Books Act, 1867 granted by the registrar of Newspaper in 1998 for printing a Daily newspaper in Bombay under the tile "khabrein Aaj Tak"; (iv) that the plaintiff had initially represented that there was a registered trade mark in its favour but it has now admitted that this is only an action for passing off and, therefore confusion has to be established in an action for passing off; (v) that this Court has no territorial Jurisdiction as the newspaper of the defendants is meant for circulation only in Bombay and adjoining areas and it has no sale in delhi.

( 5 ). Admittedly the trademark "aaj TAK" has still not been registered under the TMM Act and the plaintiff has sought injunction only by way of an action for passing off.

( 6 ). The objection that the title "aaj TAK" or "khabrein aaj TAK" was found available when defendant approached the authorities for registration under the provisions of the press and Registration Books Act, 1867 and that the registration under this Act gives it the -protection is flimsy and feeble attempt to resist the application of the plaintiff and is a sort of peripheral objection. Reg