Bad Faith Trademark Law India

Bad Faith Trademark Law India



Evidence to support a claim under section 11(10) of the Act must be particularly focused as this is a very serious claim. Section 11(10) of the Act states that the registrar shall take into consideration the bad faith involved either of the applicant or the opponent.  In Gromax Plasticulture Ltd v. Don & Law Nonwavens Ltd [1999] RPC 367, Lindsay J stated at page 379: “I shall not attempt to define bad faith in this context. Plainly it includes dishonesty and, as I would hold, includes also some dealings which fall short of the standards of acceptable commercial behaviour observed by reasonable and experienced men in the particular area being examined. Parliament has wisely not attempted to explain in detail what is or is not bad faith in this context; how far a dealing must so fallshort in order to amount to bad faith is a mater best left to be adjudged not by some paraphrase by the court(which leads to the danger of the courts then construing not the Act but the paraphrase) but by reference to the words of the Act and upon a regard to all material surrounding circumstances”.  And in Royal Enfield case the Appointed Person, held: “An allegation that a trade mark has been applied for in bad faith is a serious allegation. It is an allegation of a form of commercial fraud. A plea of fraud should not be lightly made (see Lord Denning M.R. in Associated Newspapers (1970)2 QB 450 at 456) and if made should be distinctly alleged and distinctly proved. It is not permissible to leave fraud to be inferred from the facts (see Davy v. Garrett(1878) 7 Ch.D.473 at 489). It should not be made unless it can be fully and properly pleaded and should not be upheld unless it is distinctively proved and this will rarely be possible by a process of inference” Therefore a claim under section 11(10)) must be supported by evidence of dishonest activities or dealings or at the least commercial behaviour or activities below the standard regarded as acceptable by the community at large.