Recently, Manu Garg and Ratan Behari Agrawal (“Appellant”) filed an appeal at the Delhi High Court against an order passed by the Registrar of Trade Marks (“Respondent”), refusing their application, for the mark COCK, covering, inter alia, water and color pistols, water and colour guns, in Class 28. The Respondent refused the mark on the ground that it is identical to a prior registered mark, namely, COCK (Device), covering, amorces or paper caps for toy pistols, also in Class 28.
The Appellant, in its reply to the Examination Report issued by the Respondent had submitted that the cited mark is a composite device, which clearly indicates that the mark is used in relation to amorces (a percussion cap for toy cracker pistols), which are used during the festival of Diwali, and that the Appellants’ COCK mark is used in relation to toy pistols to spray colours, which are popular during the festival of Holi. The Appellants also submitted that they have a registration for the mark COCK in relation to Holi colours going back to the year 1992, and that the registrant of the cited mark had expressed that it does not have any objection to the Appellant’s use in prior communication. The Respondent, on the other hand, argued that its order is well-reasoned, and stated that, in India, certain festivals are celebrated with spraying of colours, as well as firecrackers, and such goods are often sold through the same trade channels.
The court, in its judgement stated that while one toy pistol emits fire, the other toy pistol emits its antithesis, water, and the rival goods are therefore, as alike as chalk and cheese. The court opined that even if both toy pistols are used during the same festival, it does not render them similar or allied in ordinary parlance. Further, the court pointed out that the cited mark is registered for paper caps for toy pistols, and not for toy pistols, per se. Accordingly, the court held that the Appellant’s COCK mark and the cited mark, cannot be held as being identical, on mere similarity between the marks without considering the nature of the goods and the class of their purchasers. Therefore, the court, while allowing the present appeal, quashed, and set aside the Respondent’s order.
Manu Garg and Ratan Behari Agrawal v. Registrar of Trade Marks, C.A.(COMM.IPD-TM) 143/2021, Judgement dated February 1, 2023