E-commerce
major Flipkart’s attempt to build a brand for large appliances with its newly
created private label “MarQ” has
faced a setback after an Additional District Judge of the Patiala House
Courts vide order dated January 18, 2018 in M/s Marc Enterprises Pvt. Ltd. v. Flipkart India Pvt. Ltd. passed an order restraining the use of the mark “MARQ” as prima
facie, the court was of the view that it was phonetically similar to the mark
of the Plaintiff “MARC”.
Plaintiff’s Assertions:
The Plaintiff, i.e., Marc Enterprises Pvt. Ltd.
contended that the mark of the Defendant is infringing the mark of the
Plaintiff. The Plaintiff made the following submissions:
- That
the Plaintiff is user of the trademark “MARC” since 1981 and that the mark is
registered since 1984 for electrical goods in classes 7, 9, 11, 16 and 21.
- That
the Defendant had proposed to use the trademark “MARQ” for similar or identical
goods and therefore, interim injunction in favor of the Plaintiff be granted to
prohibit the Defendant from using the mark “MARQ” for its similar or identical
goods.
Defendant’s Submissions:
The
counsel for the Defendant submitted that though no notice has been issued to
the defendant so far but he has come to know from the cause list that a case is
filed by the Plaintiff against the Defendant. The court observed that since the
Defendant is present in the court it would be in the interest of justice to
give him also an opportunity to address arguments on the aforesaid interim
application of the Plaintiff.
The
Defendant, i.e., Flipkart Pvt. Ltd. refuted the contentions of the Plaintiff
and put forward the following assertions:
- That
the Defendant had already applied to get the registration of the mark “MARQ”
under the Trade Marks Act, 1999, which is pending registration.
- That
the mark was not deceptively similar in any manner to the Plaintiff’s mark
“MARC”.
- That
the Defendant had already launched its products in the market in August, 2017
and that the Plaintiff had sufficient knowledge of the same but did not take
any action, therefore, the aforesaid application of the Plaintiff may not be
allowed.
A
comparison chart of the rival marks have been reproduced herein below:
|
S.
No.
|
Plaintiff’s
Mark
|
Defendant’s
Mark
|
|
1.
|
|
|
|
2.
|
The letters in the mark are written in all capitals
letters.
|
The letters used in its trademark “MARQ” are all small
letters.
|
Decision of the Court:
The
court observed that the impugned mark “MARQ” of the Plaintiff was prima facie
phonetically similar to the Plaintiff’s trademark “MARC”. The court further
observed that the Plaintiff had claimed user since 1981 and the Defendant
claimed its user since August, 2017, therefore, it seemed that the prima facie
case, balance of convenience and irreparable loss were in favor of the
Plaintiff. Therefore, the Hon’ble Court restrained the Defendant to use the
trademark ‘MARQ’ in respect of its products in any form and from any platform
till the next date of hearing. The matter will be taken up next on February 05,
2018.
Concluding Remarks:
Flipkart,
in an attempt to take its private label strategy beyond electronics, fashion
and furniture, launched its first in-house brand for large appliances, “MarQ”, in August last year. In January
this year, the company launched an exclusive line of air conditioners and smart
televisions under “MarQ” at the
Consumer Electronic Show (CES) 2018 in Las Vegas. The ACs were scheduled to go
on sale on Flipkart from the beginning of April, 2018 while the Smart TV was
scheduled for May this year. Flipkart Pvt. Ltd. is most likely to take any of recourse
to vacation of the order before the same court, or alternatively to go in
appeal to the High Court to obtain a stay on the temporary injunction order.
