Delhi High Court Upholds Interim Injunction Against 'Power Flex' In Bata's Trademark Infringement Suit
The Delhi High Court has upheld a single judge order granting interim injunction restraining an entity from using the mark “POWER FLEX” for footwear in a trademark infringement suit filed by Bata.
A Division Bench comprising Justice C. Hari Shankar and Justice Om Prakash Shukla dismissed the appeal filed by Leayan Global Private Limited against a 2019 order of a Single Judge.
The Bench also dismissed another appeal filed by Bata challenging the same order to the extent that it held that the use of the tagline 'THE POWER OF REAL LEATHER‟ by Leayan as part of advertising slogan or a tagline was permitted but no undue prominence be given to the word 'POWER.'
Bata had alleged that Leayan, by use of the mark POWER FLEX, for footwear, infringed its registered mark POWER and that the said mark constituted a dominant part in respect of footwear or other allied goods.
Dismissing both the appeals, the Court said that while Bata was registered owner of trademark 'Power', Leayan had no registration for any mark, including POWER FLEX, in any class.
It held that Leayan cannot claim any right to use the mark POWER FLEX either as its registered user or permissive user within the meaning of Section 29(2)(b) of the Trade Marks Act.
The Bench also observed that Bata may be using the mark POWER for canvas footwear, but there is possibility of it expanding the range of footwear manufactured and sold by it under the POWER brand to include leather footwear or any other kind of footwear.
“There is every likelihood of such an average consumer, who is aware of the POWER brand of Bata used for canvas footwear, on coming across the POWER FLEX brand for leather footwear, presuming that Bata might have expanded its reach to include leather footwear. This likelihood of confusion stands exaggerated by the similarities between the marks POWER and POWER FLEX,” the Court said.
It added that an average consumer who is unaware of the realities of the situation has every likelihood of believing that POWER FLEX is a sub-brand of POWER, especially as both the marks are used for footwear.
The Court further observed that while the mark POWER may not be distinctive when used for an item such a boxing gloves or electric plug, but it is distinctive when used for footwear.
“Thus, as Bata's POWER mark cannot be said to be lacking in distinctiveness and Leayan's POWER FLEX mark is not entitled to the protection of Section 35, there is no statutory impediment against the grant of injunction in favour of Bata and against Leayan for use of the mark POWER FLEX in respect of footwear,” the Court said.
The Bench found no reason to interfere with the decision of the Single Judge not to grant any injunction against the use of the tag line THE POWER OF REAL LEATHER by Leayan.
“It is clear, from the tag line as it is used by Leayan, that there is no emphasis on the word POWER. That being so, an average consumer would read, and recollect, the tagline as a whole, as emphasizing the leather content of the footwear. He is unlikely, merely because of the use of POWER as a part thereof, to link the tagline to Bata's POWER range of products,” the Court said.
It added: “There is, therefore, neither any chance of confusion, or of association, between the tagline THE POWER OF REAL LEATHER and the mark POWER of Bata.”
Title: LEAYAN GLOBAL PVT LTD v. BATA INDIA LTD and other connected matter