Trademark infringement go well with | Tata has a stellar repute: HC permits ‘Fly Higher’ in Vistara advertisements

The Delhi High Court has allowed Tata Group’s Vistara airline to make use of the time period “fly higher” in its advertising campaigns, lifting the interim restrictions it ordered earlier this 12 months in a trademark infringement go well with filed by an aviation institute.

A single choose bench of Justice Jyoti Singh was listening to an utility searching for trip of the ‘ex-parte ad interim injunction’ order handed on January 21 by the HC restraining Vistara from utilizing the phrases ‘Fly High’, which is a trademark of Frankfinn Aviation Services Limited.

Frankfinn had additionally filed a go well with “permanently restraining” Tata’s Vistara from utilizing its trademark ‘Fly High’.

The HC famous that there’s a clear distinction within the Trade Marks Act between marks and trademark. “Trademarks are intangible assets of the proprietors, which serve as ‘source identifiers’, instantly connecting the goods/ services with the proprietor thereof,” the court docket said.

In the order dated October 28, Justice Singh stated there was prima facie advantage in Tata’s submission that the time period ‘Fly High’ “is demonstrably common to the aviation sector”.

“On a perusal of the documents, this Court finds prima facie merit in the submission of the Defendant (Tata) that the term FLY HIGH is demonstrably common to Aviation sector and this is fortified by the Master Data of over 20 registered companies, incorporating the phrase FLY HIGH/HIGH FLYER/HIGH FLYERS, which continue to be active and have not been struck off from the Register of Companies. Defendant has also placed on record copies of extracts of online records of the Trade Marks Registry showing registrations/pending applications for the mark FLY HIGH/HIGH FLYER,” the HC held.

Tata SIA Airlines Limited had used the time period ‘Fly Higher’ along with its tagline ‘Fly the new feeling’ as a part of its new advertising marketing campaign in 2018.

Aviation coaching institute Franfinn moved HC alleging the airline had in a “brazen and blatant manner copied” its registered trademark ‘Fly High’ and was utilizing it in allied providers.

The major matter is listed for January 13, 2023 earlier than the joint registrar.

While searching for removing of the interim restrictions, Tata had argued that the phrases ‘Fly Higher’ are used as a descriptor for its well-known trademark ‘Vistara’ and solely for advertising and promotion of its airline enterprise.

Tata argued that ‘Fly Higher’ doesn’t function a supply identifier to tell apart its items and providers from its rivals, and can’t be termed as a trademark, as outlined below the Act.

After perusing screenshots of Tata’s social media posts in addition to its ads, on-line and in print media, the HC agreed with Tata’s contentions that it was not utilizing the phrase ‘Fly Higher’ as a trademark.

The court docket additionally agreed with Tata’s argument that Tata and Frankfinn function in solely totally different industries.

The HC additional famous that Frankfinn didn’t place on file to indicate that it has the goodwill or repute within the providers provided by the airline. The HC noticed that Frankfinn’s target market are individuals searching for mushy abilities coaching within the journey, tourism, lodge administration and the aviation sector whereas Tata’s clients comprise travellers who select to fly with Vistara Airlines.

The HC held that it’s tough to imagine that somebody meaning to journey with the airline would achieve this retaining in thoughts the “alleged popularity of the FLY HIGH mark” of the Frankfinn.

It stated Tata had a “stellar reputation” and didn’t “need to encash” on the aviation institute’s repute to function its airways.

“Defendant’s (Tata) customers, as rightly pointed out, comprise well-informed discerning people, who would not choose to travel in Vistara airlines, based on plaintiff’s repute in the training Institute,” the HC held.