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Honest and concurrent usage cannot be a defence to a charge of infringement of trade mark

Citation : Kei Industries Limited vs Mr. Raman Kwatra & Anr., CS(COMM) 9/2021

Date of Judgment/Order : 17.05.2022

Court/Tribunal : High Court Of Delhi

Corum : Hon'ble Mr. Justice C. Hari Shankar

Background

KEI Industries Ltd, the plaintiff, alleges infringement, by the defendants, of its registered trademark “KEI”, of which it has registration both as a word mark and as the   device mark. Accordingly, the plaint seeks a decree of permanent injunction.

The Respondent sought protection among other issues under Section 12 of the Trade Marks Act, pleading honest and concurrent user of the impugned Mark, as his father OPK had been using the impugned Mark since 1966, and he was using the mark independently since 2008.

Judgment

After finding prima facie case of infringement by the Respondents, the HC looking into issue of the Doctrine of honest and concurrent usage. Section 12 is essentially a provision which enables the Registrar to permit registration of a mark which is identical or similar to an existing mark in respect of same or similar goods. It does not envisage honest and concurrent user as a defence to an allegation of infringement of a registered trade mark. Referring to the judgment of Supreme Court in Power Control Appliances v. Sumeet Machines, the HC observed that a provision which permits grant of concurrent registrations of identical or similar trade marks, if the use of the latter mark is honest and concurrent, cannot be used as a defence to a charge of infringement. Where a case of infringement is made out, therefore, injunction has necessarily to follow, and it is no defence to the defendant to urge that the user, by the defendant, of the allegedly infringing mark, was honest and concurrent.

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