25 March 2020TrademarksRory O'Neill

BMW secures injunction against rickshaw maker at Delhi court

The Delhi High Court has granted  BMW an injunction against ‘ DMW’, a local electronic rickshaw manufacturer.

The Indian company, Om Balajee Automobile, are now barred from manufacturing or selling goods under the ‘DMW’ mark.

The ruling, issued on Monday, March 23, comes after BMW filed a complaint in 2017 for trademark infringement and passing off.

BMW argued that, since it began trading in India in 1987, its marks had become well known and highly distinctive in the country.

The German carmaker first sent a cease-and-desist notice to the ‘DMW’ manufacturer  in 2016, citing infringement of its Indian trademark registrations.

Om Balajee rejected BMW’s argument that its brand was ‘deceptively similar’ to the German automaker’s, on the grounds that BMW was not in the business of making electronic rickshaws.

The Indian company also argued that BMW’s suit was barred by the statute of limitations, as it had been making rickshaws under the ‘DMW’ brand since 2013.

But according to the High Court, Om Bajalee was “obviously seeking to encash upon the brand quality and goodwill which the mark BMW enjoys in the market”.

The court also accepted that BMW had first learned of the infringement shortly before it sent the cease-and-desist letter in 2016, and that even if there was a delay in filing the complaint, it would not detract from the need to issue an injunction.

“The grant of injunction also becomes necessary if it prima facie appears that the adoption of the mark was itself dishonest,” the judgment read, citing Indian Supreme Court precedent.

The Delhi court found that Om Balajee’s use of ‘DMW’ was, in these circumstances, a “dishonest act with an intention of trying to take advantage of the reputation and goodwill of the brand of the plaintiff”, and one that was “likely to mislead an average man of ordinary intelligence” into thinking BMW was associated with the service.

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