Dolma Aunty Momos Claims Trademark Victory

Written by:

Adv Ankit Kansal

Updated: 23-03-2024

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Tsering, also referred to as "Dolma Aunty" by many Delhiites, operates the landmark momo enterprise of the equal call inside the town's Lajpat Nagar neighborhood. According to the court's judgment, she opened a modest momo store in 1994 which became the "first store" of the Tibetan delicacy, which gained popularity at some stage in Delhi-NCR.

Facts of the case:

Tsering demanded the cancellation and withdrawal of Khan's trademarks. She claimed that he registered her namesake logo in 2018, prompting her to record a movement with the Intellectual Property Appellate Board (IPAB) in 2021.

However, because the Tribunal Reforms Act, 2021, officially disbanded the IPAB on April 4, 2021, and its functions were transferred to the excessive courts, the case was brought before the Delhi High Court.

Tsering applied for the trademark "Dolma Aunty Momos" in 2022, and it was approved on November 17, 2023. Specifically, she claimed that Khan not only took away the trademark he had previously used, from the fact which is that she founded the business in 1994, but that he was using the same logo as hers and naming it after her.

Legal Provisions:

A trademark is a symbol, design, word, or phrase associated with a particular company. Registration of a trademark can give the owner an "exclusive right" to use it. The Trade Marks Act of 1999 governs the registration of trademarks in India. It Protects trademarks registered with the Controller General of Patents, Designs, Trademarks, or the Trademark Registry.

According to Section 25 of the Trade Marks Act 1999, once registered, a trademark is valid for ten years and can be renewed indefinitely by its owner. Also, the use of registered trademarks without their permission is infringing or constitutes an infringement, such as a general use mark for similar but new products or services There is a method of trademark infringement, which applies to the Dolma Aunty case.

Passing Off is done

The Supreme Court held in Cadila Healthcare Ltd v Cadila Pharmaceuticals Ltd (2001) that a pass-off constitutes "unfair commercial competition or unfair marketing that can be exploited" A brand uses deception to achieve its current reputation benefits by transferring its goods or services to another.

The Supreme Court held that the infringing goods need not be identical, but that the goods of the competing traders must be identical in type, nature, and function to support the charge of "passing."

Consider a case in which a brand logo is misspelled in such a way that customers find it difficult to comprehend. For instance, 'Adidas' and 'Adibas'. In such cases of infringement, the trademark proprietor has the right to seek legal redress, together with injunctions (orders to quit movement), damages, and restitution.

Dolma Tsering and Mohd. Akram Khan & Others, Tsering sought to invalidate the Khan trademark under sections 11(1), 11(2), 11(3) (a), and 47 of the 1999 Act. While Section 11 sets out the grounds for refusing trademark registration, Section 47 exempts trademarks from registration and imposes restrictions on their use

When should a trademark registration be refused?

According to Section 11(1) of the 1999 Act, a trademark cannot be registered on the grounds of "identity with previous trademarks and similarity of the goods or services covered by the trademark", as this could lead to public misunderstanding.

Similarly, another identical trademark cannot be registered even under different owners for two distinct goods or services. This is possible if the original trademark is a "famous trademark in India" and "if the the latter mark serves the absence of anything which, will unduly favor or injure the distinctive character." or the name of the former trademark" as stated in Section 11(2).

Judgment:

A bench headed by Justice Anish Dayal decided to "cancel and strike off Khan's trademark from the Trademark Register". The court noted that Tsering has earned a “great reputation” due to the popularity of momos as a street food and the widespread appreciation for the quality of its products and services.

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