BackBurger King seeks court assurance against stay orders ahead of India launch
Burger King will open its first store in India in New Delhi on 9 November
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New Delhi: To ensure a smooth opening of its first outlet in India, Burger King Corp. approached the Delhi high court on Friday seeking an assurance that companies it has sued for trademark infringement will not approach lower courts for stay orders against its launch.
The company will open its first store in India in New Delhi on 9 November.
Expressing the company’s apprehension, senior lawyer Sudhir Chandra argued that Burger King did not want the defendants to obtain an injunction against their opening from any district court in the country and that the trademark dispute should be only decided by the Delhi high court, where the case is pending.
Burger King had first approached the high court in August seeking a permanent injunction against a number of parties in a trademark infringement suit, alleging that the defendants had “surreptitiously" registered a company called Burger King India Ltd in India. A counter claim was filed by the Indian company against the multinational. The dispute is yet to be decided by the high court.
Justice Manmohan Singh in his order on Friday observed that “the parties shall maintain status quo with regard to registration of any legal proceedings".
The names of the defendants were unavailable in the public domain and lawyers representing Burger King refused to divulge the information.
Chandra argued that Burger King has over 13,000 outlets across the world and has had a trademark registration in India since 1979, which has been renewed by the company.
Shamnad Basheer, founder of intellectual property blog SpicyIP and former professor of law at West Bengal National University of Juridical Sciences, said, “The case will turn on who is the first to use trademark. The one who first used it gets the priority in terms of trademark usage. It’s quite possible that both parties have registrations, but registration is not absolutely conclusive as it can still be invalidated on the ground that the registration should not have been granted in the first place. The other possibility is that one party gets their trademark right and the other party gets to continue to use their trademark because they were honest concurrent users."
“India also recognizes trans-border reputation. Although you’re not operating in India, because of the fact that people travel abroad and see you, Indian consumers, at least of a certain class will be familiar with your name because of television, Internet, travelling abroad. If there is trans-border reputation, you can still stop someone even if you yourself haven’t opened in the country," Basheer said.
Burger King India, a joint venture between private equity firm Everstone Capital and Burger King, said in a statement: that it was “currently pursuing appropriate avenues under the law to eliminate the improper use of our name."
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