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August 4, 2018

Dishonest adoption of mark defeats defence of acquiescence

In Turning Point Institute Private Limited v. M/S Turning Point [2017 (72) PTC 164 (Del)], the Delhi High Court on 2017.08.11 has, in a suit for passing off of Plaintiff’s mark TP TURNING POINT, restrained the registered mark TP TURNING POINT of the Defendant pending trial.

The injunction also covers use as label and corporate name and also extends to any part of the mark. In the infringement cross suit, interim injunction has been denied.

The case deals with onus of proof under Section 33(1) about Plaintiff’s acquiescence “…being aware of that use” and about Defendant’s “…registration… not applied in good faith.”

In the case in hand, the defendants – on whom lay the onus, have produced no material on record to establish knowledge with the plaintiff of the defendants existence;…

The acquiescence plea thus fails if the plea-taker is unable to lead satisfactory evidence of alleged acquiescor’s awareness. It also fails if the plea-taker’s application of its since registered mark was not filed in good faith. The onus of proof is on the alleged acquiescor but is not a heavy one as it can be shifted easily though rebuttably on the taker of the acquiescence plea.

“…defendants have not explained the background which they adopted either “TURNING POINT”, or the abbreviation “TP”. Secondly, if the defendants had adopted the said mark honestly, they would have claimed protection in respect of “TP” as well, and not just “Turning Point”. As opposed to this, the plaintiff has explained the origin of the mark “TP TURNING POINT”, as noticed hereinabove.”

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