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Applicant's Mark Vs Opponent's Mark-Burger King

The Trade Marks Registry, Delhi (“Registry”) recently refused an application for registration of the device mark BURGER KING FAMILY RESTAURANT (“Impugned Mark”) by one Mr. Virendra Kumar Gupta (“Applicant”), pursuant to an opposition filed by Burger King Corporation (“the Opponent”).

The Applicant had applied to register the Impugned Mark for foodstuffs covered in Class 29 with a user claim since 2005 and the opposition was based on the Opponent’s earlier rights in the BURGER KING marks. It was the Opponent’s case that the Impugned Mark is deceptively similar to the Opponent’s BURGER KING marks and owing to immensely popularity and exclusive recognition of the BURGER KING marks in the Opponent’s favour, Applicant’s adoption and use of the Impugned Mark would confuse and deceive the consumers.

The Applicant, on the other hand, submitted that since BURGER KING in relation food products and related service is generic and common to trade, no single party, including the Opponent can claim exclusive right over BURGER KING. The Applicant also asserted use of the Impugned Mark since 2005 to allude to the Impugned Mark’s distinctiveness and exclusive association with the Applicant.

The Registry, while rejecting the Applicant’s both the contention noted that not only is the Applicant’s mark deceptively similar to the Opponent’s BURGER KING marks and the descriptive terms Family Restaurant do not add anything to the distinctiveness of the Impugned Mark, but the Applicant has also not substantiated the use since 2005 claimed in the application. The Registry accordingly the refused the application. The Registry, while doing so, stressed on the pre-requisite of bona fide adoption, genuine use claim in any trade mark application since it is the Registry’s duly to maintain purity of the Trade Marks Register.

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