Delhi High Court presents injunction to Dish TV against Doordarshan to be able to save you the latter from the usage of the word ‘DISH’ for its services. The Single Bench of Justice Sahay Endlaw refused to just accept the defendants declare of public Juris and termed the usage a prima facie case of infringement.
In the present case, The plaintiff had instituted a match for permanent injunction restraining the defendant from infringing the trademark ‘DISHTV’ of the plaintiff and from passing off the defendant‟s offerings as that of the plaintiff by the adoption of the call/mark ‘FREE DISH’ and for ancillary reliefs.
The plaintiff contended that the phrase ‘DISH’ was first coined by them and is a very fundamental and extraordinary element of its trademark. Further, the defendant has additionally followed an emblem that is deceptively just like that of the plaintiff‟s inasmuch as the defendant‟s stylized emblem contains the device of a dish which is likewise an crucial and outstanding a part of the plaintiff‟s ‘DISHTV’ emblem.
The defendants, alternatively, denied any opportunity of deception and additionally argued that ‘DISH’ is public Juris and no person can declare distinct right thereto. Moreover, beneath Section 17 of the Trade Marks Act, 1999, registration of a exchange mark confers rights within the mark as an entire and not in part or fragments of the mark; the plaintiff having elected to logo its product with a standard phrase, ‘DISH’, every other individual coming into the marketplace might have the right to use the said time period to become aware of the product in question and the plaintiff if had no longer favored so, should have branded its product with a unique name.
The courtroom opined that after the defendant itself became able to offer the stated service without using the word ‘DISH’ from 2004 to 2014 and whilst others also are presenting the equal offerings as the plaintiff and the defendant, without using the word ‘DISH’, it isn’t always open to the defendant to mention that the usage of the word ‘DISH’ by way of the defendant is indicative of the type or characteristic of offerings being rendered by way of the defendant. Thus, none of the defenses underneath Section 30 of the Trade Marks Act are available to the defendant.
The court docket also rejected defendant’s declare of public Juris by way of noting that ‘Dish’ isn’t always familiar to DTH provider or public Juris and/or commonplace to the alternate of DTH service for it to be stated that adoption thereof by plaintiff for its DTH offerings can’t prevent the others imparting equal service from using the identical for the purpose of its being important for them for describing their carrier.
Finally, the court relied upon the ratio laid down in United Biotech Pvt. Ltd., and Laxmikant V. Patel , in which the test carried out changed into of use via the defendant of a distinguished part of the plaintiff’s registered trademark, to maintain that the mark utilized by the respondent does make a prima facie case of infringement. It opined that for the clients/subscribers to shape an opinion that the plaintiff, in association with Doordarshan, is presenting sure free channels additionally and might result in the customers/subscribers wanting the paid channels of the plaintiff additionally to be telecast loose.
While granting the injunction to the plaintiff, the courtroom also criticized the defendant for making inordinate delays in taking any movement in spite of repeated lawsuits made by means of the plaintiff. It changed into dismayed that the defendant, a public region organization, indulged in using some other’s trademark and no matter the plaintiff objecting thereto, refused to behave reasonably. The same isn’t always expected of a public area company which consistent with the proclaimed litigation policy of the Government isn’t always to be indulged in.