“Atleast” flexibility in claims for having prior use of trademark

“The Court finds the phrase ‘at least’ in Mr. Hongru’s affidavit to provide legal flexibility. This wording allows for the possibility of earlier use, merely establishing a confirmed baseline for usage.”

The above obiter is from a judgment dated July 1, 2024 of the Delhi High Court, speaking through its bench comprising of Justice Sanjeev Narula, while granting an interim injunction in a trademark infringement matter. [Dongguan Huali Industried Co. Ltd. v. Anand Aggarwal and ors.; CS (COMM) 229.2023]    

Inter alia, a contention was raised by the defendant while opposing the application for injunction was that while the plaintiff has claimed use from December, 2013 in its user affidavit as part of its trademark application, it is now claiming continuous usage of the trademark since the year 2007, with an intent of countering the defendant’s prior use date from the year 2008.

Answering this, the Court observed that it “must evaluate the totality of the evidence presented rather than dismiss the Plaintiff’s claims solely on the basis of varied dates initially provided in different legal contexts.” The Court then went onto examine the various documentary evidences submitted by the Plaintiff such as bills of lading, purchase orders, invoice from trade exhibitions, etc. Coupled with the fact mentioned above that the usage of the word “atleast” was found to be in favour to the claims made by the Plaintiff, the Court determined that the Plaintiff was successful in establishing its claim of having prior use of the trademark in India, from the year 2007.

While the reason for granting the actual injunction is multi-faceted, and this post is not intended for that purpose, we only wish to point out that this obiter of Justice Narula now provides trademark law practitioners with a fail-safe in the form of the word- ‘atleast’, and we can expect to see many practitioners adopt this word in user affidavits submitted as part of Form TM-A, going forward.