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TMI Blog2013 (4) TMI 506X X X X Extracts X X X X X X X X Extracts X X X X ..... sweets, toffees and various other products since the year 1999. Plaintiff no.2, Mrs. Paramjeet Kaur, is the sole proprietress of SPS Sweets and was given permission in the year 2003, by plaintiff no.1, to use and manufacture under the mark KIDO. The mark KIDO is a registered trademark under class 30 vides Registration No. 1038080. 3. The plaintiffs submit that they supply wafers, confectionery, sweets etc under the said marks to various institutional buyers like Northern Railway and schools like St. John School, St. Mary Convent School, Army School etc. The plaintiffs contend that due to the extensive use of the marks KIDO and KIDCO, they have established a good reputation for themselves. It is submitted that the plaintiffs have also prom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and submit that they have been using the said mark KIDCO since the year 1993. They subsequently got the trademark registered in Pakistan in the year 1996. Owing to this fact, the defendants contend that it is the plaintiffs who are copying their trademark. As regards the registration of the plaintiffs‟ trademark KIDO, the defendants submit that they have filed a rectification before the Intellectual Property Appellate Board in order to oppose the using of deceptively similar and identical trademark KIDO, by the plaintiffs. 5. On the first date of hearing, a Local Commissioner was appointed to visit the premises of the defendant no.1 and to prepare an inventory of the goods bearing the mark KIDCO upon confectionery, candies, wafers, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... O XXXIX Rules 1 and 2, restraining the defendant no.1 from importing from defendant no.2 and from selling and marketing any products under the trademarks KIDO and KIDCO within the territory of India. The defendants have been subsequently proceeded ex parte vide order dated 10.11.2009. 8. The plaintiffs lead evidence by way of affidavits of two witnesses. The first witness Sh. Gurdit Singh is the managing partner and the authorized signatory of the plaintiff no.1 firm. In his deposition, Sh. Gurdit Singh reiterated all the averments as set out in the plaint. Relying on the invoices of plaintiff no.1, showing the sales of various KIDO and KIDCO products, witness stated that these trademarks had obtained a good reputation in the market due to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... above mentioned certificates are for the registration of the trademark KIDO. Thus, it is amply clear that the plaintiff is the registered proprietor and owner of the trademark KIDO. 12. As regards the trademark KIDCO, the plaintiffs have placed on record a no objection certificate with respect to Copyright registration in respect of the label KIDCO. Further, in the search report obtained by the plaintiffs on coming to know of the use of the mark KIDCO by the defendants, it is seen that the status of the application for registration of the plaintiffs‟ trademark KIDCO is "Advertised bef acc". This term is to be understood with reference to Section 20(1) of the Trade Marks Act, 1999. According to this provision, on acceptance of the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourth issue which deals with the question as to whether, the defendants‟ claim of having registered the trademark KIDCO in Pakistan, which was being used by them since the year 1993, results in a trans-border reputation. The defendants claim that since they have been using the trademark KIDCO since the year 1993, the plaintiffs were in fact the ones infringing on their trademark. Although the defendants have contended this submission in their written statement, they have not proved the same. For want of proof, the fourth issue stands decided against the defendants. 15. The second and third issues can be dealt with together. The issue here is whether the acts of the defendants constitute infringement and passing off. The defendant no. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the remedies in respect thereof." This provision makes it very clear that infringement of trademark can only be attributed to those marks which are registered. But this does not preclude a person from protecting his unregistered trademark under the act of passing off. Thus, since the mark KIDCO has not been registered as yet, I do not find the defendants‟ acts to be one of infringement. 16. However with regard to the registered mark of the plaintiff KIDO, I do not find the defendants‟ infringing mark deceptively similar to this. Thus, in answer to the second and third issues, I find that the defendants‟ act of using the trademark KIDCO constitutes acts of passing off. 17. In light of the factual matrix and the observati ..... X X X X Extracts X X X X X X X X Extracts X X X X
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