HC : Restrains clandestine attempt to infringe ITC’s “Gold Flake” trademark..

Restrains clandestine attempt to infringe ITC’s “Gold Flake” trademark; Prefix ‘National’ indistinguishable
HC grants injunction, to ITC Ltd against NTC Industries Ltd (‘defendant’) over use of ITC’s trademark ‘GOLD FLAKE’; Rejects defendant’s claim of prior user, notes that ITC got its trademark registration in 1942, while defendant applied for registration of trademark ‘SUPERIOR GOLD FLAKE’ / ‘NATIONAL GOLD FLAKE’ in 1989 & 1994 which too ​were abandoned; Also rejects defendant’s plea of acquiescence, observes that to constitute ‘acquiescence’, “rival’s use must be open, continuous and extensive: in a word, notorious, such that it could not possibly escape a plaintiff’s attention”; Observes that defendant’s annual reports did not show ‘NATIONAL GOLD FLAKE’ trademark, states that defendant’s use of alleged trademark was either insufficient or “was kept clandestine to fly below ITC’s radar”, holds that “There are nearly 20 cigarette manufacturers in the country.. submission that ITC must be deemed to have had either notice or knowledge or both, and that its consequent failure to act on that notice constitutes acquiescence is not one that commends itself”; Notes that defendant adopted same colour scheme, same words, same devices, holds such adoption as dishonest and rejects defendant’s contention that the word ‘NATIONAL’ made the trademarks distinguishable; Refers to SC ruling in Power Control Appliances v Sumeet Machines Pvt Ltd, Delhi HC rulings in Hindustan Pencils Pvt Ltd v India Stationery Products Co & Anr and Dr Reddy’s Laboratories Ltd v Reddy Pharmaceuticals Ltd :Bombay HC

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