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SENTHILKUMAR RAMAMOORTHY
Godfrey Phillips India Limited, Friends Colony, New Delhi – Appellant
Versus
Khoday India Limited, Bangalore – Respondent
JUDGMENT
(Prayer: This Civil Miscellaneous Appeal filed under Section 91 of the Trade Marks Act, 1999 in respect of goods or services falling in one class, prays that (i) this Court may be pleased to grant the order dated December 05, 2012, passed by the Respondent No.2/learned Deputy Registrar communicated vide official letter no.Top/2306 dated December 14, 2012 may kindly be set aside and consequently, opposition bearing MAS-736000 filed by the Appellant/Opponent may kindly be allowed and resultantly application no.668242 filed for registration of trade mark RED & WHITE be refused registration; (ii) Order costs of proceedings to the Appellant/Opponent.)
1. The appellant assails an order dated 05.12.2012 by which Opposition No.MAS-736000 in respect of Application No.668242 for registration of the trade mark “Red & White” was rejected.
2. The first respondent herein is a manufacturer of alcoholic beverages. An application for registration of the trade mark “Red & White” was submitted by the first respondent on 06.06.1995 on a 'proposed to be used' basis. The said trade mark was accepted for advertisement and advertised in Trade Mark Journal No.1398, regular, dated 01.09.2008. Upon not
The court emphasized the importance of determining the similarity of goods, establishing the well-known status of a mark, and considering non-use as a material consideration in trade mark disputes.
The court held that a well-known trademark's protection is prospective, not retrospective, meaning it cannot eliminate prior similar trademarks duly registered and used in a different class.
The court established that trademarks must be evaluated on their overall impression, not just individual characteristics, to determine likelihood of confusion.
Prior use and distinctiveness of a trademark override subsequent registrations, establishing a likelihood of consumer confusion in trademark disputes.
A trade mark that is phonetically and visually identical to a well-known mark, if registered without bona fide intent and in bad faith, is liable to be removed from the Register of Trade Marks under ....
The likelihood of confusion between competing marks arises from both the similarity of the marks and the nature of the goods, permitting trademark opposition to succeed under Section 11.
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