Vistara free to use 'Fly Higher' tagline after Delhi High Court vacates stay in trademark infringement suit by Frankfinn

The Delhi High Court recently allowed Vistara Airlines to use the tagline ‘Fly Higher', stating that the same does not prima facie infringe the mark 'Fly High' used by Frankfinn Aviation Services (plaintiff) [Frankfinn Avaition Services v TATA Sia Airlines]..Justice Jyoti Singh held that the phrase 'Fly High’ is widely used, both in airline sector as well as with respect to coaching institutes in aviation sector including travel and tourism, and Vistara is neither the only one nor the first user of the phrase 'Fly Higher'.Further, Vistara has earned a reputation and goodwill in the aviation sector and does not need to encash on plaintiff’s reputation to operate its airlines."The manner in which the phrase FLY HIGHER is being used by the defendant does not appear to be with an intent to deceive, misrepresent or confuse members of the public. Prominent use of the well-known trademark in conjunction with the phrase FLY HIGHER further defies any intent of the defendant to misrepresent, contrary to the stand of the plaintiff. Hence, plaintiff has failed to establish a prima facie case of passing off against the defendant," the Court said.The Court, therefore, vacated an interim injunction that was earlier passed in Frankfinn's favour on January 21. The Court was hearing a suit by Frankfinn claiming that Vistara had brazenly copied its registered trademark over ‘Fly High’ and was using it for allied and cognate services."It cannot be claimed by Plaintiff that the trademark is capable of being exclusively associated with the Plaintiff as the trademark ‘FLY HIGH’ has a dictionary meaning, which connotes ambition/pursuit of higher success/a level up and is merely laudatory in nature", the judge held. .The Court opined that the expression 'Fly Higher' did not act as a source identifier of Vistara's services and it was fallacious to argue that it was their trademark. .In this regard, the Court distinguished between a trademark and a tagline while highlighting that trademarks were intangible assets of the proprietors, serving as source identifiers, instantly connecting goods and services with the proprietor. "Trademarks can be used or proposed to be used in relation to goods or services for indicating a connection, in the course of trade, between them and the person having right to use the mark.".The plaintiff had brought the suit contending that since the parties worked in the aviation sector, confusion among the general public and members of the trade was inevitable..On the other hand, Vistara argued that they did not use the phrase 'Fly Higher' as a trademark, contrary to the plaintiff's claim. It was their submission that no goods or services were sold or provided under the phrase. Further, it was argued that the plaintiff's activities were limited to educational services and the defendant's use of the phrase was part of an advertising campaign to describe and promote services offered..Vistara also relied on a slew of judgments to buttress its arguments that parties could not monopolize marks which were common to trade or laudatory in nature.It was also brought before the court that approximately thirty trademarks featuring the term 'Fly High' or versions of it were registered on the Register of Trademarks. Therefore, there was no probability of confusion or association, it was contended..The single-judge prima facie found merit in the submission that the term 'Fly High' was demonstrably common to aviation sector..It was recorded that Vistara's use of the slogan 'Fly Higher' did not appear to be done with the goal to deceive, distort, or confuse members of the public. "Hence, Plaintiff has failed to establish a prima facie case of passing off against the Defendant," Justice Singh held. .With this finding, the interim injunction ordered against Vistara's use of the mark was lifted and the case was disposed of..Senior Advocate Chander M Lall, Advocates Kapil Midha, Versha Singh and Ananya Chug appeared for the plaintiff while the respondent was represented by Senior Advocate Akhil Sibal, Advocates Kruttika Vijay, Aditya Gupta, Mukul Kochhar and Asavari Jain..[Read Judgment]