The Petitioner, Anuj Bindal, owns the trademark “
/DABAL KABUTER BRAND”. Mr. Bindal claimed to have been operating under its mark “DABAL KABUTER BRAND” since 2005 for animal feed such as cotton seed cakes, and mustard oil that fall under class 31. Mr. Bindal’s mark faced opposition during the application stage and subsequently, the mark was abandoned due to his failure to respond to the opposition. However, the mark was being used continuously.
In 2019, Mr. Bindal received summons and an injunction order passed in a trademark infringement suit filed by Mr. Tarsem Chand, the Respondent herein. Mr. Bindal was then made aware of Mr. Chand’s mark “ 
/DOUBLE KABOOTER BRAND” which was nearly identical to his mark. As the prior adopter and user of the mark, DABAL KABUTER BRAND, Mr. Bindal filed a petition before the High Court of Delhi seeking cancellation of registration of Mr. Chand’s mark, DOUBLE KABOOTER BRAND (Section 57 of the Trade Marks Act, 1999). Mr. Bindal claimed the use of the mark, DABAL KABUTER BRAND since 2005. Whereas Mr. Chand, who claimed to have adopted the DOUBLE KABOOTER BRAND in 2006 in its trademark application, adduced solely an advertisement publication from 2009 as evidence of use.
The Court noted that while both marks have additional artistic elements, the dominating and identifying feature is the phrase, “डबल कबूतर ब्राण्ड” with a device of two pigeons facing one another. Hence, it was held that Mr. Chand’s mark is deceptively similar to Mr. Bindal’s mark with prior use. Despite Mr. Bindal’s mark being unregistered, the Court opined on the possibility of confusion arising from the concurrent use of the two marks, citing Section 9(2)(a) of the Trade Marks Act, 1999. Also, the Court stated that, securing a trademark registration based on false statements by the user is fraudulent. Thus, because of an incorrect statement of use, the Respondent’s registration in class 31 was directed to be cancelled.
Citation: Anuj Bindal M/S Aggarwal Rice And Oil Mills vs Tarsem Chand M/S R.D Traders And Anr., High Court of Delhi, C.O. (COMM.IPD-TM) 700/2022, I.A. 24554/2023, I.A. 24555/2023.
Authored by Ms. Benita Alphonsa Basil, Trademark Team, BananaIP Counsels.
Reviewed and Confirmed by Ms. Naika Salaria, Trademark Team, BananaIP Counsels.
Disclaimer
The case note/s in this blog post have been written by IP Attorneys at BananaIP Counsels based on their review and understanding of the Judgments. It may be noted that other IP attorneys and experts in the field may have different opinions about the cases or arrive at different conclusions therefrom. It is advisable to read the Judgments before making any decisions based on the case notes.
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