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IP Case Digest · Trade Marks Act s.104

Section 104, Trade Marks Act: case law

3 judgments of the Allahabad High Court (Lucknow Bench), the Karnataka High Court and 1 other court applying Trade Marks Act s.104, from 2023–2024, each with a headnote by BRB Legal.

3judgments
3courts
2023–2024years

Mohd. Abdul Momin v. State of U.P. & Anr. (Application U/S 482 No. 3112 of 2013)

Allahabad High Court (Lucknow Bench) · Allowed

Criminal proceedings under sections 103 and 104 of the Trade Marks Act and sections 64 and 65 of the Copyright Act quashed under section 482 CrPC. The underlying commercial dispute over the KAVERI mehndi cone marks had been settled by a compromise decree in 2016, under which the applicant withdrew his trade mark applications and oppositions and undertook not to use any deceptively similar mark or packaging. Neither the complainant nor the proprietor of the firm appeared to oppose. Applying Gian Singh and Ramgopal, the Court held that the chance of ultimate conviction was extremely bleak and no useful purpose would be served by letting the prosecution continue.

Sri Manjunatha M.S. v. State by Arisikere Town Police & Anr. (Criminal Petition No. 1620 of 2017)

Karnataka High Court · Dismissed

Petition under section 482 CrPC to quash the prosecution dismissed. The proviso to section 115(4) of the Trade Marks Act, requiring a police officer to obtain the Registrar's opinion before search and seizure, is not mandatory; non-compliance is an irregularity which does not vitiate the investigation unless the accused establishes at trial that it occasioned a failure of justice. Where the complaint was registered under section 63 of the Copyright Act and the Trade Marks Act offences came to light only once the seizure was under way, the officer was under no obligation to obtain the opinion at that stage, since the articles could not reach the Registrar without first being seized. Whether the Copyright Act complaint was a device to bypass the proviso is itself a question for trial, on which the complaint could then be dismissed.

Chu Chu TV Studios LLP v. The Registrar of Trade Marks, CMA(TM) 2/2023

Madras High Court · Set aside

A refusal under section 11(1) fell on every ground. Evidence of use cannot be rejected for want of turnover and advertising figures where invoices, online material and the applicant's own registrations in other classes are on record. A cited mark shown as 'objected' in the search report cannot be treated as valid, subsisting and the prior user. The rule that a combination of two known words is not an invented word is correct but has no application to a device mark. And a certificate under section 65B of the Evidence Act is required only for an electronic record within the producer's own possession, control or custody, so none can be demanded for third party news articles, which the Registry can access and verify for itself.

Other provisions of the Trade Marks Act

All 233 judgments on the Trade Marks Act, 1999 Search the IP Case Digest