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2013 (4) TMI 506 - DELHI HIGH COURTUse of the trademarks KIDO and KIDCO by the defendants is in an identical fashion and used for the same class of goods - Whether the plaintiffs are the registered proprietors and owners of the trademarks KIDO and KIDCO -Held that:- It is seen that the originals of two trademark certificates have been placed on record - Both the 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. Whether, the defendants‟ claim of having registered the trademark KIDCO in Pakistan results in a trans-border reputation - Held that:- the defendants have contended this submission in their written statement, they have not proved the same. For want of proof, this issue stands decided against the defendants. Whether the acts of the defendants constitute infringement and passing off - Held that:- Owing to the fact that the class of goods is confectionery, the majority of customers would be children. There can be no doubt that there would be confusion in their minds especially when both trademarks look exactly similar. Further the plaintiffs have been able to prove that they have attained good reputation in the market. Thus, with regard to the trademark KIDCO, I find that the defendants‟ acts constitute passing off - 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. Order of permanent injunction passed, restraining the defendants from importing their products under the trademark KIDCO and from selling and manufacturing their products under the same mark within the territory of India.
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