9911796707
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Issues Involved:
1. Infringement of Trademark 2. Passing Off 3. Validity of Registration 4. Distinctiveness of Trademark 5. Statutory Defenses to Infringement Action Issue-wise Detailed Analysis: 1. Infringement of Trademark: The court examined whether the appellant's registered trademarks "LOSORB" and "LO-SORB" were infringed by the respondent's use of the phrase "LOW ABSORB." The court held that the respondent's use of "LOW ABSORB" was descriptive and did not amount to trademark infringement. The court also noted that the respondent prominently displayed its own trademark "Sundrop," which further differentiated its product from the appellant's. 2. Passing Off: The court referred to the Division Bench decision in Cadila Healthcare Ltd. v. Gujarat Co-operative Milk Marketing Federation Ltd., which held that descriptive terms like "Sugar Free" cannot be exclusively owned. Applying this reasoning, the court concluded that "LOW ABSORB" is a common descriptive term and not a coined word, thus the appellant cannot claim exclusive rights over it. The court found no likelihood of confusion between the appellant's and respondent's products, as the packaging and trademarks were sufficiently distinct. 3. Validity of Registration: The court scrutinized the validity of the appellant's trademark registrations, noting that the trademarks "LOSORB" and "LO-SORB" were registered on a "proposed to be used" basis without evidence of distinctiveness at the time of registration. The court held that these trademarks were prima facie invalid as they were minor variations of the descriptive term "LOW ABSORB." 4. Distinctiveness of Trademark: The court analyzed whether the appellant's trademarks had acquired distinctiveness. It concluded that the appellant had not used the trademarks "LOSORB" and "LO-SORB" for a sufficiently long period to acquire distinctiveness. The court emphasized that descriptive trademarks require extensive and undisturbed use over many years to achieve distinctiveness, which was not the case here. 5. Statutory Defenses to Infringement Action: The court considered the statutory defenses under Sections 30(2)(a) and 35 of the Trademarks Act, which allow the use of descriptive terms in a bona fide manner. The court found that the respondent's use of "LOW ABSORB TECHNOLOGY" was descriptive and not as a trademark, thus falling within the statutory defenses. The court also noted that the respondent had removed the "TM" symbol from "LOW ABSORB TECHNOLOGY," indicating no intent to use it as a trademark. Conclusion: The appeal was dismissed, with the court holding that the appellant did not have a prima facie case for trademark infringement or passing off. The court emphasized the importance of not granting exclusive rights over descriptive terms and upheld the statutory defenses available to the respondent. The court also noted that the appellant's trademarks were prima facie invalid due to lack of distinctiveness at the time of registration.
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