October 21, 2022
The Delhi High Court pronounced an order (dated October 11, 2022) in the case of Alphavector India Private Limited vs M/s Sach Industies and Ors. providing clarity on the scope of protection which can be granted to numerical marks. The suit was instituted by the Plaintiff on ground of unauthorised adoption of the mark NINETY NINE/99 by the defendants for the production and sale of bicycles. The Plaintiff argued that they were the prior adopter of the mark NINETY ONE/91, which was being used by them since 2020 in respect of design distribution and sale of bicycles. The plaintiff also asserted that they had designed several marks incorporating the number 91 such as 91 CARES, OUTDOORS91, VECTOR 91, 91 NINETY ONE, etc.
The Plaintiff relied upon an excerpt from McCarthy on Trademarks, in respect of which the Court opined that – “In McCarthy (supra) it has clearly been opined that numbers are capable on being used as trademarks when used alone, as part of an alphanumeric combination, or spelled out in letters especially if they are arbitrary marks and are not related to a particular style or a grade of a product.” The Court observed that McCarthy has further gone on to state that - ‘Letter and number marks that have no inherent meaning (except as possible abbreviations) are usually compared on the basis of visual similarity’.
The Court after perusing the claims and submissions held that, even though in the present case, the mark adopted by the Plaintiff has been used only since 2020, the mark appears to have acquired goodwill even within the short period which was supported by sales figures furnished by the Plaintiff. The Court further stated that the mala fide intent of the defendants was evidenced by the reneging of an undertaking provided earlier to the plaintiff when the plaintiff first brought the issue to the notice of the defendant. The Court was also of the opinion that, ‘…bicycles by their very nature are bought by a large swathe of the population which could also include semi-literate persons. The competing marks can be easily confused and the same can be in the form of sponsorship or affiliation. Consumers may be deceived to believe that both bicycles originate from the same manufacturer and the marks ‘NINETY NINE/99’ are series marks.’
The Court granted interim protection to the Plaintiff against the use of the mark NINETY NINE/99 by the defendant in numeric form or in word form or any other mark.
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