S.76(3) Trademarks Act Does Not Require Both Rival Marks To Be Registered CTMs, Targeted Client Base Relevant To Infringement: Delhi High Court
Case: Scrum Alliance, Inc v. Mr. Prem Kumar S. & Ors.
Coram: Justice C. Hari Shankar
Case No.: CS(COMM) 700/2021
Court Observation: “…Section 76(3), in order to apply, does not require both the rival marks to be registered CTMs…So long as both the marks are registered under the Trade Marks Act, and one of them is a CTM, the fact of registration would entitle each of the said marks to be used as a trademark, and no injunction against such use can be granted, irrespective of whether the mark is, or is not, infringing”.
“…likelihood of confusion, in trademark infringement or passing off, is to be assessed on the basis of the initial impression conveyed by the allegedly infringing mark…No doubt, the possibility of confusion would not be evaluated, in the case of a CTM, on the basis of the perception of the average consumer on the street, who has nothing to do with the CTMs concerned, as the targeted client base is also a relevant factor to be borne in mind while assessing the likelihood of confusion”.
“It is obvious that a person who is familiar with the plaintiff’s CTM “CERTIFIED SCRUMMASTER”, and who comes across the defendants mark, is likely, even if for a fleeting moment, to wonder whether it is not the plaintiff who is providing the said certification. That momentary feeling of wonderment would, by itself and without anything else, suffice to constitute “likelihood of confusion”. “The mark of the defendants being, prima facie, a conscious depiction of “Certified Scrum Master” encased in a “sun” motif, the intent to confuse the certification provided by the defendants with that provided by the plaintiff appears, to me, to be prima facie apparent.”
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Keywords
S.76(3) Trademarks Act, Delhi High Court
