H & M succeeds against an Indian clothing line in a trademark battle at Delhi High Court
In a recent judgement dated 31st May 2018, the Swedish Fashion icon H & M wins a trademark battle against an Indian clothing chain. Justice Rajiv Sahai Endlaw passed an interim injunction against the Indian clothing chain which will begin from 9th July 2018.
The suit was filed on 2nd June 2016 by H & M Hennes & Mauritz AB, Sweden and H & M Hennes & Mauritz Retail Pvt. Ltd., New Delhi [ Plaintiff No. 1 & 2] against Defendants no.1 to 4, i.e., i) HM Megabrands Pvt. Ltd., ii) Mr. Arif Merchant, ii) Mr. Hamza Arif Merchant and iv) Mr. Hashim Arif Merchant for injunction restraining infringement/passing-off of the Plaintiff’s trademark H & M by using the trademark HM Mega Brands.
Plaintiff, H & M Hennes & Mauritz AB, Sweden, claimed that HM Megabrands Pvt. Ltd. is representing the alphabetical letters H and M in a form which resembles their artwork. It is further added that even the color combination used is same as of the plaintiff i.e. red and white.
The defendant/HM Megabrands Pvt. Ltd. contended that they chose H and M as it is initials of the owner, Mr. Hasim Merchant, and at the time of its inception, 2011, there was no brand presence of H&M in India.
Justice Endlaw applying the Test of Trademark Confusion held “Now applying the test, as to how a purchaser with an average mind of ordinary intelligence will look upon or react to the mark of the defendants and what association he will form by looking at it and in what respect he would connect the mark to the goods he was purchasing, the only answer is that a purchaser familiar with the plaintiffs and their brand H&M, seeing the brand HM of the defendants and seeing it described as a megabrand, is likely to associate the goods of the defendants as those of the plaintiffs. Anyone familiar with the mark “H&M‟ of the plaintiffs on seeing the mark “HM Megabrands‟ thus is unlikely to differentiate the defendants from the plaintiffs. The suffix “Megabrands‟ to the alphabetical letters “HM‟, rather than distinguishing, reinforces the impression in the mind of the consumer that the business of the defendants is the business of the plaintiffs which vis-a-vis the defendants at least was a megabrand on the date when the defendants commenced business.”
With respect to generic nature it was held by the judge that “H&M‟ or “HM‟ however are not generic or publici juris to the trade or business for which they are being used by the plaintiffs and the defendants. The said alphabets are alien to the trade / business of clothing / garments /accessories and were applied thereto by the plaintiffs, admittedly much prior to the defendants, merely on account of being first alphabets of the originators of business of the plaintiffs.
The judge also agreed that although the Defendants had commenced their business since 2011 in India, the Plaintiffs were the prior user and the have established a case of infringement and passing off by the Defendants. And the injury and loss faced by the Swedish giant, if the Indian company continued using the impugned mark during the pendency of the suit was implicit. No order of keeping an account could compensate the Plaintiffs.
India is a fast-growing market for high-end luxury brands and through this judgement we can see how the reputation and goodwill of the fashion giant is kept intact without them losing their brand value. And also, not letting the other companies in the same industry to gain profits from their goodwill.