Source: Delhi High Court

Why in News?

A bench of Justice Pratibha Singh was hearing a rectification petition by Vimal Agro Products seeking court’s order for cancellation of registered trade mark of Ching's Secret owner Capital Foods' on “SCHEZWAN CHUTNEY”.

• The Delhi High Court gave the observation in the case of Vimal Agro Products P. Ltd. v. Capital Foods P. Ltd. & Anr.

What is the Background of S Vimal Agro Products P. Ltd. v. Capital Foods P. Ltd. & Anr Case?

• The petitioner Vimal Agro Products Private Limited sought cancellation of the trade mark ‘SCHEZWAN CHUTNEY’.
• The said trademark relates to a large number of food products inter alia chutneys, salad, dressing, sauces, snack foods and so on.
• The case of the Petitioner is that ‘SCHEZWAN CHUTNEY’ is a descriptive and a generic mark.
• The question that arises is whether trademark ‘SCHEZWAN CHUTNEY’ is descriptive/generic, and would be hit by Section 9 of the Trade Marks Act, 1999 or not.
• The respondent contended that the court does not have jurisdiction to hear the petition.

What was the Court’s Observation?

• The court in its order denied putting a stay on registered trademark and said that it will first deal with the contention upon jurisdiction in further hearings.

What is Section 9 of the Trade Marks Act, 1999?

• The Section 9 covers following grounds for refusal of registration:
  • The trade marks which are devoid of any distinctive character, that is to say, not capable of distinguishing the goods or services of one person from those of another person shall not be registered.
  • The trade marks which consist exclusively of marks or indications which may serve in trade to designate the kind, quality, quantity, intended purpose, values, geographical origin or the time of production of the goods or rendering of the service or other characteristics of the goods or service shall not be registered.
  • The trade marks which consist exclusively of marks or indications which have become customary in the current language or in the bona fide and established practices of the trade, shall not be registered.
• The Section 9 of the Trade Marls Act, 1999 provides that a trade mark shall not be refused registration if before the date of application for registration it has acquired a distinctive character as a result of the use made of it or is a well-known trade mark.
• As per Sub-section 2 of the Section 9 the following trade marks shall not be registered:
  • If the trade mark is of such nature as to deceive the public or cause confusion;
  • If it contains or comprises of any matter likely to hurt the religious susceptibilities of any class or section of the citizens of India;
  • If it comprises or contains scandalous or obscene matter;
  • If its use is prohibited under the Emblems and Names (Prevention of Improper Use) Act, 1950.
• As per Sub-section 3 of the Section 9 the following trade marks shall not be registered:
  • The shape of goods which results from the nature of the goods themselves; or
  • The shape of goods which is necessary to obtain a technical result; or
  • The shape which gives substantial value to the goods.
• Section 9 also provides an explanation which clarifies that for the purposes of this section, the nature of goods or services in relation to which the trade mark is used or proposed to be used shall not be grounds for refusal of registration.