A person using a trademark for long cannot be upstaged by an impostor even if such mark is not registered.
In Guru Kripa Manufacturing Private Ltd V. M/s. Duro Pipe Industries Private Ltd and Another, the Allahabad High Court juxtaposed the two trademarks and observed that on a careful scrutiny of the two marks, there was no escaping the conclusion that if the trade make of the plaintiff is placed along side that of the defendant, the persons possessing common intelligence, namely, masons and contractors the user of the product are likely to be deceived.
The product in question was the same - PVC pipe. The Court gave primacy to the doctrine of prior use and observed that the act of the defendant in copying the same mark amounted to passing off, an offence that needs to be stopped even when the mark is not registered. The accounts of the plaintiff showed declining sales largely due to the predatory tactic adopted by the defendant in copying. Curiously, the defendant showed his reluctance to show his own accounts to the court which gave rise to the adverse presumption that it was prospering at the expense of the plaintiff by adopting the dubious tactic.
(The author is a New Delhi-based chartered accountant)