IP & Litigation

Delhi High Court refuses to give monopoly over Chur Chur Naan

/ / Delhi High Court refuses to give monopoly over Chur Chur Naan

In a recent order dated 8th May 2019, Delhi High Court has refused to give monopoly over Chur Chur Naan and Amritsari Chur Chur Naan.

In this case, Mr. Praveen Kumar Jain who sells Naan and related food items in Paharganj, Delhi. He is the registered owner of various trademarks including ‘CHUR CHUR NAAN’ and ‘AMRITSARI CHUR CHUR NAAN’. Through this application, he has claimed exclusive rights in ‘CHUR CHUR NAAN’ against Defendants who are using a similar expression for its outlet in the same locality.

Plaintiff while arguing relied on Automatic Electric Limited v R.K. Dhawan & Anr.[1] and The Indian Hotels Company Ltd and Ors. V Jiva Insititute of Vedic Science and Culture[2].

However, It is claimed by the Defendants that ‘CHUR CHUR NAAN’ is nothing but a descriptive word and lack distinctiveness to be provided protection under the Trade Marks Act. Further, it was claimed by the Defendants that using terms such as ‘Chandni Chowk Ke Mashoor’, ‘Dilli Ke Mashoor’ etc are common trade practice.

Delhi High Court while considering whether any interim relief is liable to be granted in favour of the Plaintiff observed that it cannot ignore the generic nature of the marks and confer monopoly on the same in favour of any party. Although, Section 28 of the Trade Marks Act provides exclusive rights to the registered trade mark owner but it is subject to the exception laid down in Section 35 of the Trade Marks Act which states if there is bona fide description of the character or the quality of the goods or services, there cannot be infringement of a registered trademark.

However, in order to avoid confusion Defendants agreed to change its name of their outlets to ‘PAHARGANJ SETH KE MASHOOR CHUR CHUR NAAN’ and ‘PAHARGANJ SETH KE MASHOOR AMRTISARI NAAN’ while ensuring that entire name shall be used in the same font, colour and in the same style without giving any undue prominence to ‘CHUR CHUR NAAN’ or ‘AMRITSARI CHUR CHUR NAAN’ in 30 days.

You can read this judgment by clicking here.

References:

[1] 77(1999)DLT 292

[2] 2008 (37) PTC 468 (Del)

Author credit: Tushar Bhargava, Co-founder, MikeLegal

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