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Zen is a Japanese School of Mahayana Buddhism which teaches Buddhism. Recent Judgment of Delhi High Court restrained Asus from using the word “Zen” in any of its products. Teleecare Network India Pvt. Ltd. became the registered proprietor of the marks Zen and Zen mobile.
The issue came up when Asus Technology Pvt. Ltd. used the same mark “Zen” for their digital gadgets. The plaintiff filed a case of Trademark infringement against the defendant. The case comes under the ambit of Trademark Act 1999. The defendants defended their case under Section 17 (2) of the Act.
Teleecare alleges that the defendant has adopted the word “Zen” with a suffix “Fone”. The plaintiff accused that the defendant launched their “Zenfone” with a similar price range of that of the defendant. Referring to the Judgment of Bhole Baba Milk Food Industries Ltd. vs Parul Food Specialties Pvt. Ltd. the defendant stated that the mark “Zen” was common to trade and generic in nature.
Regarding the word “Generic mark”, the Court explained that generic marks refer to the Genus to which a particular product or service is a species of. Here the Court held that Zen is a generic word of a school of Buddhism. Therefore, Zen is a generic term in Buddhism but it is not a generic mark in mobile phones and related accessories. The defendant further claimed that they have searched the Trademark report and found that third parties are using the “Zen” mark for their products and cited the example of Zenta McCoy Techno International.
The plaintiff argued that the third parties were not using the word “Zen” for the business of mobile phones. In this point, the Court held that mere filing of a search report from the Trademark Office doesn’t prove that the mark mentioned in the search report is actually used by the third parties.
On May 28th 2019 Justice Manmohan delivered the judgement stating that the defendant had used the mark in bad faith. The Court further opined that as the defendants have used a similar mark in relation to identical goods and in the same business and this amounts to the likelihood of confusion among consumers. The court observed that the present suit satisfies the grounds of passing off.