IMPORTANT POINT
The court emphasized that the petitioner's claim was expansive beyond legitimate bounds, and the use of the word 'KWIK' on one of their many sub-brands could not give them dominance over what had already been disclaimed as of general use.

JUDGMENT

Anish Dayal, J. - This rectification application has been filed under Sections 47 and 57 of the Trade Marks Act, 1999 ("the Act") for removal/cancellation of the impugned mark bearing no. 2223608 in the Register of Trade Marks.

2. The said matter was initially filed before the Intellectual Property Appellant Tribunal ("IPAB") and transferred to this Court, consequent to the abolition of IPAB in 2021.

3. The impugned mark of which removal is sought, 'POMA-EX KIWKHEAL' (device), was applied for on 21st October, 2011, with user claimed from 01st July, 2011, and was granted on 16th December, 2014 to the respondent.

4. The petitioner claims to, inter alia, have the following registrations:

5. The trademarks are applied to their product which is instant adhesive and bears the following packaging/label:

6. The petitioner is a company incorporated in India, having its registered office in Mumbai. It claims to be world-renowned in the field of adhesives and sealants, construction, paint chemicals, art materials, industrial adhesives, et al.

7. Petitioner's products are sold under well-known trademarks 'FEVIKWI', 'FEVICOL', 'FEVISTIK', 'FEVICRYL', 'FEVI BOND', 'FEVIART', 'FEVIGUM', 'FEVITITE', 'M-SEAL' and 'DR. FIXIT', et al.

8. Petitioner's products are claimed to have been developed through in house research and sold internationally. However, in particular, the products sold under the aforementioned marks enjoy a major market share in India.

9. Petitioner's trademark 'FEVIKWIK' as noted above has a distinctive trade dress, colour scheme, and layout and has been used extensively and continuously by the petitioner since 1987. The said trademark was popularised over a period of time through various sales promotion measures.

10. Petitioner claims to be the registered proprietor of the mark 'FEVIKWIK' bearing registration no. 465651 dated 06th January, 1987 in class-1, the said registration is valid and subsisting.

11. Aside from the fact that the earliest registration of the 'FEVIKWIK' mark was in 1987, in November, 2007 the petitioner adopted a new, unique, and distinctive packaging for its 'FEVIKWIK' products being. The essential features comprise of the following:

i. a unique and distinctive colour combination of yellow and shades of blue;

ii. the mark 'FEVIKWIK' written in red lettering;

iii. a blue ball device depicted at the right-side top end of the mark 'FEVIKWIK';

iv. the words "one drop instant adhesive" on top of the mark and;

v. a depiction of the product container bearing the house mark 'PIDILITE' on the left side of the packaging (hereinafter referred to as the FEVIKWIK Distinctive Packaging).

12. Registration of the labels was obtained in class 1 (no. 1646321 dated 21st January, 2008), as well as in class 16 by (no. 1643620). The petitioner, therefore, claims copyright ownership in respect of the trademark 'FEVIKWIK' with its distinctive packaging.

13. The petitioner claims that the moment it came to know of respondent's infringing products using trademark 'KWIKHEAL', it filed Suit no. 653/2014 in the High Court of Judicature at Bombay. The High Court granted an ad-interim injunction on 05th May, 2014 against the respondent which was made absolute on 02nd August, 2017.

14. The injunction was granted inter alia in the following terms:

"(b) that pending the hearing and final disposal of the suit, the Defendants by itself, its partners, its directors, proprietors, servants, subordinates, representatives, stockists, dealers, agents and all other persons claiming under them be restrained by an order and injunction of this Hon'ble Court from infringing any of the Plaintiff's trademark comprised in the FEVIKWIK Distinctive Packaging bearing registrations Nos. 1643621 in class 1 and 1643620 in class 16 in any manner and from using in relation to any products / Impugned Products the Impugned Packaging or any other mark which is similar to any of the aforesaid marks of the Plaintiff including, the FEVIKWIK Distinctive Packaging or any of the '