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2013 (10) TMI 500 - HC - Companies LawTrademark infringement - Passing off action - Infringement of trademark 'Aaj Tak' - Defendant published newspaper with the name 'Aaj Tak' - Email adrees with similar name also made - Held that:- Under Section 29 (4) of the TM Act, where the registered mark is shown to have a reputation in India and the use of the impugned mark by the Defendant results in taking unfair advantage of the registered mark or is detrimental to, the distinctive character or repute of such registered mark there is no need for the owner of the registered trade mark to demonstrate the likelihood of confusion in the mind of the public. As far as the present case is concerned, the uncontroverted evidence of the Plaintiffs clearly establishes that the Plaintiff No.2 is assignee and Plaintiff No.1 is the registered proprietor of the word mark ‘Aaj Tak’. Secondly, the registrations are in respect of services under Classes 38 and 41 of the Fourth Schedule to the TM Rules. By virtue of Rule 22(2) of the TM Rules read with the Fourth Schedule these classes cover news reporting and dissemination of news as well. Thirdly, the Defendants are not the registered proprietor of the trade mark ‘Aaj Tak’. The impugned mark ‘Aaj Tak’ adopted by the Defendants is identical to the registered mark ‘Aaj Tak’ phonetically, structurally and visually. The statements made on affidavits by the Plaintiffs regarding the reputation enjoyed by the registered mark in India and worldwide and the demonstrable exploitation of that mark by the Defendants by inviting applications for ‘Aaj Tak Models ‘and for advertisements by issuing tariff rates remains uncontroverted. It has been satisfactorily proved by the Plaintiffs that that the adoption and use of the impugned mark by the Defendants will cause detriment to the distinctive character and repute of the registered mark of the Plaintiffs. It is also been shown that the Defendants have by such use taken unfair advantage of the goodwill and reputation of the Plaintiffs’ mark. There is nothing in the cross-examination of Plaintiffs’ witnesses which disproves their case. Plaintiffs have been able to demonstrate that there has been an infringement of the Plaintiffs’ registered trade mark in terms of Section 29(1) and 29 (2) (b) of the TM Act. Further by the material brought on record, the Plaintiffs have been able to demonstrate that the trade mark ‘Aaj Tak’ has a distinctive character and reputation in India and that the Defendants have sought to take unfair advantage of the reputation and goodwill of the Plaintiffs’ mark and that such use is detrimental to the distinctive character and reputation of the registered trade mark thus attracting infringement in terms of Section 29(4) of the TM Act - Defendants should be asked to pay the Plaintiffs punitive damages in the sum of Rs. 5 lakhs to act as a deterrent against the Defendants infringing the registered mark of the Plaintiffs - Following decision of Time Incorporated v. Lokesh Srivastava [2005 (1) TMI 630 - DELHI HIGH COURT] - Decided in favour of appellant.
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