The Delhi High Court decided a trademark infringement cases titles as Sunil Mittal vs Darzi on Callon 19th April 2017, the court came across an argument from the defendant that the plaintiff trademark is also being infringed by any other person and it is not only the defendant which is an alleged violation. It was further argued that since the plaintiff (read claimant here) has not initiated any action against the various other persons who are using similar trademarks hence the suit against defendants does not stand. Justice Rajiv SahaiEndlaw while dealing with this issue observed.
“It is not expected of a proprietor of a trademark too, 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 remain unaffected by the use of the same trademark by others. Merely because the plaintiff has not felt the need to take action against some others even if using the word “Darji” as a trade name, if according to the plaintiff such use does not affect the business of the plaintiff, the same cannot deprive the plaintiff of protective action, when another invades his business.”
In the suit trademark DARJI was alleged to have been infringed by the defendant who was using a brand Darji on Call while dealing with various aspects of the case court came across the above observation in their judgment. The ruling of the court is vindictive of the stand that the infringer cannot take frivolous defense in a trademark suit. It is on the owner/proprietor of the trademark to decide as to against whom they initiate a proceeding of trademark infringement cases titles and it is immaterial if the proprietor has chosen to ignore various other persons who are infringing upon the trademark.