But it cannot deprive the proprietor of protective action when another invades his business, the bench said.
The Delhi High Court, in Sunil Mittal vs Darzi on Call, has held that merely because the proprietor of trade mark have not felt the need to take action against some for using his trade name, as according to him, such use does not affect his business, the same cannot deprive the proprietor of protective action when another invades his business.
Sunil Mittal and Darzi (India) LLP, the plaintiffs, who provide the services of tailoring and draping as well as relating to the trade and business of selling and marketing of all kinds of clothing and wearing apparels, textile clothes, readymade garment, claiming to be registered proprietor of the label mark ‘DARZI’, had sought for injunction restraining the defendant from using the word ‘DARZI’ or any other word, mark, label identical with or deceptively similar to the word / mark ‘DARZI’.
Justice Rajiv Sahai Endlaw was dealing with the submission made by the defendant that there are several others who are also using ‘DARZI’ formative marks as part of tailoring and stitching business.
The bench observed that it is not expected of a proprietor of a trademark to, instead of carrying on business under the trademark, make litigation a business by continuously being on the prowl for every use of that trademark, howsoever, insignificant and inconsequential may be, and to take legal proceedings to prevent such use. A proprietor of a trademark is not expected to take legal proceedings if remains unaffected by use of the same trademark by others, the bench observed.
Allowing the applications filed by plaintiffs, the court said they have a prima facie case and balance of convenience in their favour. A customer of a tailor, once lost, is unlikely to come back, said the bench holding that plaintiffs will suffer irreparable injury from continued use by the defendant of the mark.
Read the Judgment here.