New Delhi: The Delhi high court has allowed major mobile phone maker ‘Intex’ to sell its Aqua brand handsets and accessories in the local market.
A bench of Justices Badar Durrez Ahmed and Ashutosh Kumar passed the judgement while setting aside a single judge’s interim order barring Intex from selling its Aqua handsets and accessories, taking note of a trademark infringement plea of market rival ‘Az Tech’.
“We feel that respondent (Az Tech) have neither made out a prima facie case in their favour, nor is the balance of convenience in their favour. In fact, irreparable injury would be caused to appellant (Intex) if an injunction were to be granted or continued. “And, above all, the conduct of Az Tech has not been honest, to say the least. This by itself disentitles them from getting an order of injunction in their favour. Consequently, the judgment (single judge’s) is set aside,” the bench said.
The division bench verdict came on a plea filed by Intex against the single judge’s order of December last year. Az Tech had moved the single judge against Intex in 2013 alleging that the handset brand of its rival has created confusion among customers due to identical trademark of ‘Aqua’ and sought interim injunction on the sale.
Granting interim relief, Justice G S Sistani had said “the plaintiffs/applicants, having established a strong prima facie case for priority showing prior use and goodwill in the mark ‘Aqua’ (and) are entitled to an interim injunction against Intex.”
Az Tech, in its plea, before the single judge had claimed it had been selling ‘Aqua’ trademarked mobile phones in India since 2009 and had expanded its business by venturing into production of earphones, mobile chargers, USB cables and batteries under the brand. It had alleged that ‘Intex’ had opted for an identical trademark in 2012 to “have a free ride on its (Aqua Mobiles) goodwill”.
Appealing against the single judge’s order, Intex had submitted that ‘Aqua’ as a trademark was incapable of being distinguished for goods of Az Tech only and therefore, the company cannot claim rights over the trademark and seek legal protection.
Intex had contended that it had spent a huge sum of Rs27 crore on commercials to promote the brand in question and also hired a Bollywood actor for the purpose.
Agreeing with Intex’s submissions, the division bench observed that the font of ‘Aqua’ of the Intex logo was different from that of Az Tech.
“During the pendency of the suit, Az Tech adopted exactly the same logo in small caps style and font as that of Intex. Prima facie, this would amount to a deliberate act of copying in an attempt to ride on the reputation and goodwill of the Intex,” the division bench noted in its 48-page judgement. It also noted that Az Tech claimed the colours white, blue and red as elements of the trade mark.
“The mark and logo as used by Az Tech in India was in the colours silver on blue. In other words, ‘Aqua’ was written in silver with a blue background and it was in the same font and style as that of the mark ‘Aqua’ used by the Intex.
“Thus, it is apparent that not just the words and the font style, but all the elements of colour were changed in order to adopt Intex’s logo. So, far from the Az Tech establishing, even prima facie, a case of passing off against the Intex, it appears to be the other way round,” it noted.
Apart from this, the conduct of the respondents in using the symbol and adopting the font and style of the appellant’s logo has not been honest, to say the least, the bench added.