Lakshmikumaran & Sridharan 律师事务所An ISO 9001 / 27001 certified law firm

Trademarks - Ex-parte ad-interim injunction possible only in case of distinctive mark

27 April 2016

Division Bench of the Delhi High Court has vacated the ex-parte ad-interim injunction granted by the Single Judge Bench against a major mobile and personal computer manufacturer, for use of words ‘Split View’. The Court in its decision in FAO (OS) Comm. 11/2016, held that the issue for consideration was whether ‘Split View’ is descriptive of an essential feature of the computer programme thereby rendering the words, even if used in conjunction with each other, not eligible to be a trade mark. It was observed that firstly it has to be tested that respondent’s trademark ‘SplitView’ is inherently distinctive or has assumed secondary distinctiveness, and thereafter it has to be evaluated whether use by the manufacturer is truly descriptive and in conjunction with a trademark for the consumer to know the difference between descriptive use and trademark use.

While requesting the Single Judge to hear arguments in the application seeking interim injunction pending disposal of the suit filed by the respondents, the Court observed that an ex-parte ad-interim injunction in a matter concerning trademark violation should ensue only if a very strong prima-facie case is made out with respect to a trade mark which is inherently distinctive. The mobile and PC manufacturer, in the case, contended that people in the field of computer software programming used the words ‘Split View’ to describe an essential feature of the function of the software programme.

Citing some examples, the manufacturer here also argued that the consumer recognizes that descriptive words are used by them to describe the essential functionality of its product and not the product, and that those non-descriptive words are used by them as the name of the product.
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