THE CASE OF boAt vs BOULT
FACTS: The complainant - Selling Pvt Imagine. Ltd. is a registered corporation incorporated in the year 2013 under the Companies Act. In many classes of the trade mark, including Class-9, 11 and 35, the applicant is the registered proprietor of the 'boAt' trade mark. The corporation of the appellant is well known for making and distributing accessories for electronics. As the complainant entered into contracts with many celebrities to advertise their goods, the plaintiff invested a huge amount in advertising their goods. Now, as the company's annual turnover has increased from 5 crores to 330 crores in just five years, the plaintiff's company has become popular in the field of electronic gadgets.
The plaintiff lodged a lawsuit for trademark infringement, copyright infringement and requests an order of permanent injunction prohibiting the appellant, his agents, subsidiaries, officers from selling, importing, exporting, offering for sale, distributing, advertisement or in some way dealing with products and/or services under the mark 'BOULT' or any other mark which is disappointingly close to that of 'BOULT'
ARGUMENTS OF PLAINTIFF:
- In the year 2014, the trade mark boAt was coined and embraced.
- It is the registered owner of boAt, the logo, the exclusive A and NIRVANAA trademarks in Classes 9, 11 and 35.
- It is also the owner of the copyright inside the letter A in the boat mark/logo boAt.
- Complaints about the sub-standard nature of Defendant's goods have obtained from different consumers and dealers, mistaking them as Plaintiff's products.
- Defendant sells low-quality and inexpensive goods under the name BOULT on the same site online.
- The defendant dishonestly introduced the BOULT brand, which is phonetically and disappointingly similar to the same opening and dosing syllables to its BOAT mark and covers equivalent goods.
- The logo/mark for the alphabet A has also been adopted by Defendant, deceptively identical to its registered logo/mark A.
- Defendant's product is also seen as its product is tapped on e-commerce sites, adding to more uncertainty in the minds of Defendant.
- The defendant has embraced the "UNPLUG YOURSELF" tagline, which is deceptively close to its "PLUG INTO NIRVANA" tagline.
- In comparison, the defendant has borrowed the product names, e.g., their product called "Boult BassBuds" is deceptively similar to the product "boAt BassHeads."
ARGUMENTS OF THE DEFENDANT:
- It cloned and adopted the BOULT, BOULT AUDIO trademarks in 2017 and is the licenced owner in Class 9 of the trademark/logo.
- It has also developed and created its logo with a reference to its trade name 'BOULT AUDIO, which is currently awaiting registration with the Trade Marks Registrar.
- Its goods rank in the top 10 audio gadgets with a very good ranking from over 1,00,000 customers on different e-commerce sites.
- It has also spent a large amount of cash on ads and marketing of its BOULT name.
- There is no resemblance between the BOAT and BOULT signs.
- Plaintiff does not use A as a standalone logo and is used only as part of its boAt trademark. The trademark of the Appellant, if any, was used, which is entirely distinct from the brand of Defendant.
- Plaintiff and Defendant's taglines are also not identical, with 'PLUG' being the only generic term that is common to trade.
On the basis of the following key observations, the Single Judge, after considering the pleadings and oral representations of all sides, ordered an interim injunction in favour of the Appellant until the disposition of the suit:
- The plaintiff is a former owner of the BOAT patent for the same type of products with identical descriptions.
- It is not important to adjudicate the resemblance between the two marks by means of accuracy, but by the way in which the senses interpret truth and maintain it in memory.
- Because the first two and the last alphabet of the two words being the same, BOAT and BOULT are very phonetically identical, a customer does not have a right and full reflection when he goes to purchase the product if the product is from BOAT or BOULT.
- In addition, in the shape of a triangle, the logos of the two brands are identical as well. In both, the tagline also uses the term 'PLUG' to cause a lie.
- The defendant also uses a deceptively close name for his offering, i.e. "Boult BassBuds," which has also introduced a corresponding get-up and colour scheme for its products and packaging.
- Once the Court concludes that the adoption of the defendant is dishonest, simply because it has been using its mark since 2017 or has invested enormous amounts in promotion and advertising, it will not tilt the balance of convenience in its favour.
HELD: An order in favour of the plaintiff and against the defendant was passed by Hon'ble Justice Mukta Gupta, of the Delhi High Court. The Court has issued an interim injunction order restricting the defendants from selling, using, exporting, importing, manufacturing, offering for sale, or in any way dealing with goods and/or services under the name 'BOULT' and the word 'UNPLUG YOURSELF' until the disposal of the present suit. The Court considered that the defendant's mark 'BOULT' is phonetically similar to that of the plaintiff's mark 'BOAT/boAt' and, because of the first two and the last alphabets in the mark, it would create confusion in the minds of consumers when buying from the same platforms.
What is Trademark? Why Trademarks Are Important to Your Business? Watch this -
BY - ADITI GOEL