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Trade Mark Rectification and the Triple Identity Test

This article examines a recent case involving the rectification of the trademark "SHIV GANGA" registered under No. 3274256 in Class 01 for camphor, highlighting the application of the Triple Identity Test. The Hon'ble High Court of Delhi cancelled this impugned trademark, emphasizing the absence of use by the respondent and the likelihood of confusion due to the Triple Identity Test.

Case Background:
In this case, the petitioner sought the removal of the trademark "SHIV GANGA" registered by respondent no. 1 for camphor in Class 01, dated December 15, 2011. The petitioner's trademark was applied for in Class 03 for camphor, isobornyl, and other related products, with usage dating back to 1974. Despite the differing classes (Class 01 vs. Class 03), both trademarks covered the same product�camphor. The court's decision hinged on two pivotal aspects: the non-use of the trademark by the respondent and the application of the Triple Identity Test.

Trademark Non-Use of Trademark:
Under Section 47 of the Trade Marks Act, 1999, a trademark may be subject to rectification if it has not been used for a continuous period of five years and three months from the date of registration. The burden of proof lies on the registered proprietor to show the use of the trademark. In this case, respondent no. 1 failed to provide any evidence of the use of the "SHIV GANGA" trademark. The court noted this absence of use as a primary reason for cancellation, reflecting the statutory mandate that trademarks should be actively used in commerce to maintain their registration.

The Triple Identity Test:
The doctrine of the Triple Identity Test was a cornerstone in the court's decision. Originating from the case of "Jain Electronics Vs Cobra Cables P. Ltd. and Ors., 2010 SCC OnLine Del 4199", the Triple Identity Test assesses three critical aspects to determine the likelihood of confusion:

Identity of the Marks:
Whether the trademarks in question are identical or deceptively similar.

Identity of the Goods or Services:
Whether the goods or services for which the trademarks are used are identical or similar.

Identity of the Trade Channels:
Whether the goods or services are marketed through the same or similar trade channels.

In the present case, the court found that The trademarks "SHIV GANGA" and the petitioner�s mark (although not explicitly mentioned, implied to be similar) were considered identical or at least confusingly similar.Both parties were dealing with camphor, thus fulfilling the second criterion of identical goods.The court observed that camphor, regardless of its classification under different classes (Class 01 for respondent and Class 03 for petitioner), would typically be sold through similar trade channels, such as general stores, religious shops, and other retail outlets.

Given these findings, the court concluded that the simultaneous use of these trademarks was likely to cause confusion among consumers. The deceptive similarity and identical nature of the goods and trade channels satisfied the Triple Identity Test, warranting the cancellation of the impugned trademark.

The application of the Triple Identity Test in this case underscores its significance in trademark litigation. It provides a robust framework for evaluating the likelihood of confusion, crucial for protecting both consumer interests and the proprietary rights of trademark owners. The Delhi High Court's decision to cancel the "SHIV GANGA" trademark reiterates the importance of actual use of a trademark and the potential for consumer confusion as decisive factors in trademark rectification cases.

This case highlights the necessity for trademark proprietors to actively use their marks in commerce and maintain vigilance over similar registrations. For practitioners and businesses, understanding the nuances of the Triple Identity Test can offer valuable insights into effectively managing trademark portfolios and navigating disputes. The rectification of the "SHIV GANGA" trademark demonstrates the judicial application of established legal principles to ensure fair competition and prevent consumer deception, reinforcing the essential role of trademark law in modern commerce.

Case Title: Sanjay Gupta Vs Anil Udyog
Order Date: 20.05.2024
Case No. C.O. (COMM.IPD-TM) 106/2024
Neutral Citation:NA
Name of Court: Delhi High Court
Name of Hon'ble Judge: Anish Dayal. H.J.

Ideas, thoughts, views, information, discussions and interpretation expressed herein are being shared in the public Interest. Readers' discretion is advised as these are subject to my subjectivity and may contain human errors in perception, interpretation and presentation of the fact and issue involved herein.

Written By: Advocate Ajay Amitabh Suman, IP Adjutor - Patent and Trademark Attorney
Email: [email protected], Ph no: 9990389539

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