US Giant 'Burger King' Loses Trademark Infringement Suit Against Pune's Iconic 'Burger King'
The District Court, Pune has dismissed the trademark infringement suit filed by US food giant 'Burger King Corporation' against Pune's iconic eatery Burger King.
"The plaintiff miserably failed to prove that defendants had infringed its trademark Burger King while running their restaurant at Pune," District Judge Sunil G. Vedpathak observed in the judgment delivered recently.
The US company, stating that it started selling burgers under 'Burger King' name in 1954 and is presently the second largest fast food hamburger company in the world employing 30,300 people across 100 countries, filed the suit in 2011 seeking a permanent prohibitory injunction against the use of the trademark 'Burger King' by the proprietors of the Pune eatery and also damages of Rupees 20 lakhs.
Upon applying for trademark registration in India in 2009, the US company discovered that the Pune eatery was already operating under the name "Burger King."
However, the defendants, Anahita Irani and Shapoor Irani, proprietors of the Pune eatery, argued that they had been using the trade name since 1992. They also contended that the the plaintiff has not used the trade mark in India for nearly 30 years since registration.
Finding no merit in the suit, the District Court observed that the defendants are prior users of the trademark in question in India :
"..admittedly the plaintiff(US company) has started to provide services through restaurant under its trademark Burger King in India particularly in the year 2014 whereas since 1991-92 defendants are using the trademark Burger King to provide restaurant services. Even the plaintiff has not placed on record the registration certificate about registration of its trademark in India under class 42 prior to 1991-92. Admittedly plaintiff has registered its trade mark Burger King under class 42 pertaining to restaurant services is of 06.10.2006. So, considering the fact that defendants are prior user of trademark in question, I am of the opinion that the plaintiff has no cause of action to seek relief of perpetual injunction. Thus, in absence of cogent evidence, I find that the plaintiff is not entitled for damages, rendition of accounts and the relief of perpetual injunction."
The Court also found fault with the evidence of affidavit filed by the plaintiff as it was not in accordance with Order 19 Rule 3 (1) of CPC. Because the power of attorney holder who deposed on behalf of the US Company did not have personal knowledge about the averments in the affidavit. The person who filed the affidavit was neither an employee of the US company nor its Indian subsidiary. The Court also found that the person was not duly authorised to depose on behalf of the company.
Although the suit was filed in 2011, this person came in association with the organization only in 2018.
"It is apparent that the witness has no personal knowledge about any events, facts, cause of action or averments made in the evidence affidavit of examination-in-chief. His entire evidence is of hearsay nature and further as per legal requirement, he ought to have disclosed the source of his information which he referred / deposed in affidavit. Therefore, whatever mentioned in the evidence affidavit of PW-1 could not be proved and, therefore, evidence affidavit of PW-1 is required to be treated as no evidence," the Court observed.
Appearances :
Shri. S. P. Pathak for Plaintiff.
Shri. A. D. Sarwate a/w Adv. Srushti Angane, Adv. Rahul Pardeshi for Defendants.