Delhi High Court restrains Ashirvad Pipes from using trademarks similar to Jaquar

The Delhi High Court on Monday temporarily restrained Ashirvad Pipes from using marks similar to 'Artize' and 'Tiaara' trade marks belonging to sanitaryware company, Jaquar. [Jaquar and Company Pvt Ltd v Ashirvad Pipes Pvt Ltd].Justice C Hari Shankar observed that not granting interim injunction would mean allowing continued infringement, leading to uninterrupted violation of Jaquar's intellectual property rights until the suit is decided."It cannot be said that the jeopardizing of the intellectual property right of the plaintiff, and resultant erosion of the brand value of the plaintiff’s products and plaintiff’s marks, can be adequately quantified and compensated by money. Irreparable loss would, therefore, of necessity result to the plaintiff, were interim injunction, as sought, to be refused by the court," the Court added..The Court was hearing an application for interim injunction by Jaquar (plaintiff) in a suit against Ashirvad Pipes (defendant) for infringement and passing off. In the suit, the plaintiff alleged that the defendant was using marks 'Artistry', 'Artistry by Ashirvad' and 'Tiara', which are similar to 'Artize' and 'Tiaara' marks owned by Jaquar.Both companies are selling luxury sanitaryware under these brand names..Advocate Kapil Wadhwa, appearing for the plaintiff, contended that the plaintiff was the prior user of the marks. He alleged that the assailed marks were phonetically, visually and structurally similar to that of plaintiff.He added that a mere addition of words 'by Ashirvad' below the word 'Artistry' was not sufficient to mitigate the possibility of confusion in the mind of a consumer of average intelligence and imperfect recollection. Wadhwa further highlighted the defendant was using packaging similar in colour and shape to that of the plaintiff. This, he contended, would lead an average consumer to believe that there is an association between the plaintiff and the defendant when, in fact, no such association exists.Further, Wadhwa highlighted that both the parties' products were identical or at least allied and cognate to each other, available through the same trade channel, advertised through the same media sources and cater to the same consumer segment.Thus, he argued that a case both of infringement and passing off was made out. .On the contrary, Senior Advocate Chander M Lall, representing the plaintiff, argued that both 'Artize' and 'Artistry' were common English words, with 'Art' being an essential component.Further, he contended that there was no deceptive similarity between the competing marks when viewed as complete marks.He argued that the plaintiff could not be permitted to monopolize the usage of the term 'Art', which the defendant was using to reflect the artistic nature of its products.He emphasized that both parties' marks were registered and hence, the plaintiff could not maintain an action for infringement.Lal further argued that there was no similarity in the packaging used by both companies. Regarding the mark 'Tiara', Lal stated that it was only a product category and was not being used as a trademark. He mentioned that given six months, the defendant could dispose of the existing stock and was willing to discontinue the use of the word..The Court noted that the plaint had specifically pleaded invalidity of the registration of Ashirvad's marks and therefore, based on Supreme Court's decision in Raj Kumar Prasad & Anr. vs Abbott Healthcare Pvt. Ltd., the validity of the registration was not a valid defense for infringement under section 29 of the Trade Marks Act. .Thereafter, the Court said that it could find deceptive similarity even if the competing device marks, viewed as complete marks, are totally dissimilar. This is possible when the competing marks are device marks but the prominent feature of the device marks in each case is a word and the words themselves are phonetically, confusingly and deceptively similar to each other, the Court added..The Court then observed that 'artize' was not a commonly used word and had the potential to cause phonetic confusion for a consumer of average intelligence. Hence, it concluded that 'Artize' and 'Tiara' were phonetically very similar to the competing marks and, therefore, a prima facie case of infringement was made out.The Court rejected the defendant's argument that the mark 'Tiara' was not being used as a trademark. It underlined that the definition of mark under Section 2(1)(m) includes a device, brand, heading, label, ticket, name, signature, word, letter, numeral, shape of goods, packaging, or combination of colours or any combination. .Further, the Court observed that the defendant using a different mark for the same products and adopting the new mark after the plaintiff's mark gained repute showed that the infringement was conscious.However, given that the defendant had used the suffix 'by Ashirvad', the Court said that passing off could not have been said to be successful. Therefore, it held that a prima facie case for passing off was not made out..Thereafter, noting that the validity of the registration of the plaintiff's marks was not challenged, the Court determined that the plaintiff's marks were valid and as a result, it was entitled to relief. The Court also rejected the argument that the plaintiffs were seeking to monopolise the word 'Art'..As such, the Court determined that not granting interim injunction would lead to uninterrupted violation of Jaquar's intellectual property rights until the suit is decided. "The balance of convenience would also, therefore, be in favour of grant, rather than refusal, of interim injunction as sought by the plaintiff," the Court said. .As a result, pending disposal of the suit, the Court restrained the defendants from using the impugned , and marks, the word mark 'ARTISTRY;, and the mark 'TIARA', as also any other similar device or word mark or logo which is confusingly or deceptively similar to the plaintiff’s registered trade marks..It also directed the defendants to ensure that the assailed marks are removed from all physical and virtual locations within the defendant’s control, as well as from all websites, e-commerce platforms and social media pages. .Along with Kapil Wadhwa, advocates Surya Rajappan, Tejasvini Puri and Vasanthi Hariharan represented Jaquar.Senior Advocate Lall and advocates Prashant Gupta, Karan Singh, Udit Tewari, Yashi Agarwal and Abhinav Bhalla appeared for Ashirvad Pipes..[Read Judgment]