The present case involves a trademark dispute at the preliminary stage filed by the plaintiff, Abros Sports International Private Limited, a company incorporated in 2020. It received rights under the mark ‘ABROS’ by assignment deed in 2021 from its predecessor. The predecessor operated under a proprietorship named M/s Narmada Polymers and conceived and adopted the mark ‘ABROS’ in 2017. On the other hand, the defendants, accused of violating the plaintiff’s trademark rights, operate their business under the mark “NEBROS” and are registered on a proposed to-be-used basis in 2020.
Background
The defendants are trading under the mark ‘NEBROS’ for footwear products, which the plaintiff contended was misleadingly similar to their mark ‘ABROS’. In its previous order, the Court restricted the defendant’s commercial operations and online sales to specific states until further orders were made. Contrary to its previous order and further while deciding the question of interim injunction between the plaintiff and defendant, the Court decided in favour of the defendant, despite the plaintiff’s contentions of successfully building the brand, ‘ABROS’, in the footwear market since 2017 and proof of several trademark registrations and extensive promotional efforts over the years under said mark.
This rejection of the plaintiff’s relief of interim injunction against the defendant resulted from the Court’s analysis of better trademark rights of the defendant with evidence of prior use of the mark ‘NEBROS’ than the plaintiff’s as a footwear brand. The decision further weighed more in favour of the defendants due to unrebutted claims of the plaintiff in light of the fact that the predecessor of the plaintiff dealt primarily in the soles of shoes and did not operate as a shoe brand.
The plaintiff is an Indian company incorporated in February 2020, and its origin can be traced back to a proprietorship run by Anil Sharma known as M/s Narmada Polymers. Anil Sharma officially assigned the rights to the ‘ABROS’ trademark to the plaintiff on January 15, 2021, by a deed of assignment. Subsequently, the plaintiff had been actively engaged in producing and commercialising footwear, providing a diverse range of products such as athletic shoes, sandals, and slippers for individuals of both genders. Their online operations are functional through the website www.abrosshoes.com, created in June 2020.
The plaintiff’s brand ‘ABROS’ was supported by a conceptual narrative, in which the letter ‘A’ represents Anil Sharma’s name, and ‘BROS’ represents ‘brothers’, symbolising family involvement in the business. The lawsuit claimed substantial sales figures and spending in advertising and marketing, which was evidence of its well-established brand in the market. The defendants, specifically Ashish Bansal and Shyam Ji Sharma, marketed footwear under the brand name ‘NEBROS’, which the plaintiff contested and challenged for being deceptively similar to its registered mark ‘ABROS’ and led the plaintiff to pursue legal actions.
On the other hand, the Defendants claimed the term ‘NEBROS’ to be a coined term derived from the name of the defendant and his paternal uncle, who was running his business in the name of ‘Nice Footwear’ and was one of the biggest distributors of footwear in Ahmadabad. Since the paternal uncle had also mentored the defendants, they adopted the letters ‘N’ and ‘E’, and since they were brothers, they coined the word ‘NEBROS’. To add to its stance, the defendants proved the user by showing invoices for September 2020 issued by Nice Footwear, carrying their mark ‘NEBROS’, prior to the proof of use rendered by the plaintiff. The balance of convenience and principles of trademark law operated in favour of the defendant, and overall, the Court found no confusion and visible difference in the analysis of the two marks and their usage on the products, which is also depicted herein below:
Contentions of the Parties
The plaintiff asserted that the defendant’s use of the mark “NEBROS” constituted an infringement upon their registered trademark “ABROS”. The plaintiff substantiated their claim by highlighting the phonetic resemblance between the two marks and arguing its previous utilisation in the market. In addition, they emphasised their much higher net sales revenue generated in 2020 and 2021 than the defendant mark, which indicated a more substantial influence on the market and acknowledgement under the brand name “ABROS”.
The plaintiff relied on various legal precedents such as Kaviraj Pandit Durga Dutt Sharma v. Navaratna Pharmaceutical Laboratories, AIR 1965 SC 980, Amritdhara Pharmacy v. Satya Deo Gupta, 1962 SCC OnLine SC 13, which dealt with a test of a man of average intelligence and imperfect recollection while analysing disputed trademarks. Emphasis was drawn to the point that the marks ‘ABROS’ and ‘NEBROS’ were phonetically similar and that there existed every likelihood of confusion between the two marks.
However, the defendant rejected these allegations by providing an explanation for the genesis of their trademark “NEBROS”. They indicated that the mark “NEBROS” was formed from personal and family business associations, demonstrating that there was no intention to violate or cause misunderstanding. They highlighted that their mark ‘NEBROS’ obtained no opposition to their registration, suggesting that the trademark authorities acknowledged the uniqueness of its mark.
They also drew attention to the fact that the predecessor of the plaintiff was a leading manufacturer of soles of shoes and not shoes, and the use of the brand ‘ABROS’ on shoes started much later, which made the fact the defendant honestly adopted the mark ‘NEBROS’ undoubtedly clear. They also highlighted disparities in the visible and phonetic characteristics of the two disputed marks “ABROS” and “NEBROS”. The argument from the counsel of both parties gave rise to the necessity of meticulous legal analysis of trademark rights, determination of pre-existing usage, and the probability of customer misunderstanding.
Court Analysis
The Court determined that the marks ‘ABROS’ and ‘NEBROS’ did not possess considerable similarities in terms of sound, appearance or structure. The defendants have used the mark since September 2020, before the plaintiff’s verified use in 2021. Furthermore, the plaintiff’s assertion of past use of the mark by its predecessor-in-interest M/s. Narmada Polymers remained unproved and further lessened by the defendant’s challenge on the scope of Narmada Polymers’ operations merely carried on as a manufacturer of soles of shoes. The balance of convenience was found to be in favour of the defendants, with facts that no opposition was raised by the plaintiff to the defendant’s registration of the mark ‘NEBROS’, nor was the plaintiff’s mark reflected in the trademark examination report.
The Court relied on the exposition in Swiss Bike Vertriebs GMBH Subsidiary of Accell Group v. Reliance Brands Ltd. (RBL) 2024: DHC:1884. In the realm of subjective analysis of Section 29, the Court briefly touched on the concepts of “deceptively similar”, “likely to cause confusion”, and “likely to have an association”, stating they are not exclusive to each other but rather be inextricably intertwined principles and concepts. The Court found no visual, structural or phonetic similarity between the two disputed marks “ABROS” and “NEBROS” and opined that the commonality of the word ‘BROS’ did not have the capacity to trigger confusion even in a person of average intelligence and imperfect recollection.
Conclusion
The Court’s decision to reject the plaintiff’s application for an interim injunction against the defendant’s use of the mark ‘NEBROS’ was based on the defendant’s proven “prior use”, lack of similarity between the disputing marks and use of distinct device/logo by the disputing parties. The Court concluded that restricting the defendant from using their registered mark ‘NEBROS’ would cause unjust damage to their business after considering their prior use and no scope of confusion even to a person of average intelligence and imperfect recollection. The Court resonated with the global appreciation test laid down in AMPM Fashions (P) Ltd. v. Akash Anil Mehta 2021 SCC OnLine Del 4945 and concluded at a prima facie stage that the marks ‘ABROS’ and ‘NEBROS’ are phonetically, visually distinct from each other, giving doors to defendants to continue using mark ‘NEBROS’ without restriction until a contrary final decision in the matter.
