News & Updates

December 12, 2017

Being Laudatory is amongst the tests of descriptiveness of a trademark

During the pendency of a cancellation action against Nestle’s Registration for the mark A+ Device in respect of milk products, the Delhi High Court vide its order dated December 5, 2017 made its prior order for maintaining status quo absolute. Nestle alleged that its rights in the mark were prior owing to the Assignment Deed wherein use claim for milk products is since 2004. On the other hand, the defendant commenced use only in June 2011. Nestle’s application for injunction was denied on the grounds that –

1. A+ is laudatory and descriptive and accordingly, to be protected as a trademark, it would need to be shown by the claimant that the mark by extensive usage has acquired distinctiveness and is associated only with the claimant.

2. If the Plaintiff were to finally succeed, compensation could easily lie by way of damages.

The order observes that the status quo has continued for a period of over five years without the parties proving their case by leading evidence. Both parties presently use the mark A+ as a sub brand in conjunction with Nestle and Amul.

Notably, the Court observed that invoices of the assignee do not show any use on milk products. Moreover, assignment of the mark to Nestle for a mere Re 1 in respect of milk products only (permitting the assignee to use the mark for all other goods falling under Class 29) is significant as it prima facie shows that the mark was never in use for such products by the assignee.

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