The Delhi High Court recently decided the case of Moonshine Technology Private Limited vs. Tictok7 Skill Games Private Limited and Others, in which the plaintiff's registered trademark for the word "Baazi" was infringed upon by another gaming company using the Winzo Baazi Trademark as part of the poker game's title as "WinZoBaazi." The plaintiff claimed that the defendant's use of the word "Baazi" infringed on the plaintiff's exclusive right, and that because the gaming applications' services were similar, it would have caused confusion among app users, and that the defendant would have taken unfair advantage of the plaintiff's right.
Although the plaintiff submitted the application three years after having constructive knowledge of the defendant's existence, the balance of convenience was deemed to be titled for the plaintiff since the defendant can continue to do business with the registered trademark "Winzo," but the inclusion of the term "Baazi" will harm the plaintiff's business. The decision was based on the 'balance of convenience' and whether the plaintiff would suffer irreparable loss or injury, and whether there was a prima facie case against the defendant. The balance of convenience refers to the respective
merits of the parties' case, the calculation of damage suffered by the parties, and whether or not the parties registered the trademark prior to commencing the claim. In the Indian context, the balance of convenience is evaluated on a case-by-case basis, assessing which party will suffer a larger hardship as a result of trademark infringement and if the injury caused is irreparable to the firm concerned. The hurt in question can be monetary, psychological, or occupational in nature, among other things. The parties involved have to provide with prima facie existence of a case and a balance of convenience.
The balance of convenience is determined by numerous factors, including the nature of the parties' company and the product on which the trademark has been infringed. If the nature of the business is vital as, in the case of Cutis Biotech Sole v. Serum Institute of India Pvt. Ltd., the court will authorise the use of a brand. The product in question here was the state's distribution of the Covishield vaccine. The plaintiff and defendant both registered for the trademark "Covishield" for a dietary supplement and a vaccine, respectively.
The case was adjudicated using common law principles, which mentioned the different uses of the products, the importance of the vaccine in preventing further Covid-19 infection, the different administration of the products as the vaccine shall not be available as an over-thecounter medication, and so on. Due to the precarious nature of the situation, the court determined that the balance of convenience favoured Serum Institute in order to avoid confusion among the general public.
The balance of convenience can also be changed, calling into question the ideals enshrined in the legislation. Section 17 of the Trademarks Act additionally clarifies that the exclusive right to a trademark is limited to the entire trademark. As a result, the trademark holder shall have no exclusive rights in relation to a portion of a trademark. In Sri Tulasi Industries vs. Sri Sapthagiri Industries and Ors., the plaintiff was a manufacturer and seller of edible oil who had trademarked the term "Tasty Gold." The defendant, who was also in the same industry, had applied for the trademark "Tasty Drops."
The court, in this case, found that because the plaintiff's business would be harmed by the confusion caused by the similar names of the items, an injunction was granted prohibiting the defendant's use of the phrase.In some cases, a firm's cross-border reputation is used in order to initiate an action against a trademark infringement, even though the company has not registered the trademark in India. Under Indian law, a company's trans-border reputation is claimed as a valid defence for trademark infringement, as in the Whirlpool case. In this case, the plaintiff sued for trademark infringement based purely on the fact that the company was well-known in various countries.
This was the argument made in the case of Milmet Oftho Industries v. Allergan Inc., in which the international nature of the medicine and widespread new coverage in Indian media was held to be sufficient grounds for filing for patent protection. The court ruled that because the company had no intention of entering the Indian market and the defendant had changed the name to avoid trademark infringement, the injunction claim was dismissed.