Om Logistics Ltd (Om) approached the Delhi High Court seeking an ex parte injunction to restrain Mr. Mahendra Pandey (Mahendra) from providing services under the name ‘OM EXPRESS LOGISTICS’ or using the said name or any other deceptively similar name in any manner whatsoever.
Om also claimed that it had adopted the mark in the year 1990. Om claimed to be the registered proprietor of the logo containing the words Om Logistics Ltd.
Om claimed that it came to know that Mahendra was using a deceptively similar mark and hence was committing infringement and passing off. Therefore it sent a legal notice to Mahendra which was replied to by Mahendra stating that Om’s trade mark had been wrongly registered. Hence om filed a suit against Mahendra.
Initially the Court granted an exparte injunction in favour of Om. Mahendra filed an application for vacating the exparte injunction submitting that Om had made misleading and false claims and had also suppressed and concealed relevant facts/documents to obtain the ex parte ad interim injunction order. Mahendra claimed that Om had misrepresented/concealed the following facts
i. It falsely claimed the mark “OM LOGISTICS LTD‟ to be a “well-known trademark‟
ii. It did not disclose to the Court that the registration obtained in respect of one of the Trademark Application is a device mark and in respect of other Trademark Application is a composite label mark and not a word mark.
iii. In its response to the examination reports of the Registry, Om submitted that its mark is a device mark and hence not similar to other pre-registered Om Marks .
iv. it has deliberately did not file the annexures that were a part of Mr. Mahendra’s reply to the cease and desist notice sent on behalf of Mahendra to Om . In addition to these, Mahendra also submitted that he is using the trade name/trading style “OM EXPRESS LOGISTICS” out of which the word OM is publici juris, a religious symbol/word, incapable of being monopolized, the word “EXPRESS‟ is a common dictionary word and lastly the word “LOGISTICS‟ is a descriptive word.
The Court held that there was merit in Mahendra’s submission and that at various places, Om has made false and misleading claims like “OM LOGISTICS LTD‟ being a well-known trade mark”. The Court also agreed that Om had not disclosed complete details of its Trademark Applications.
Mahendra’s reply to the Cease and Desist notice sent by Om Logistics was also not placed on record wherein he had filed details of a number of entities operating in the field of logistics and courier services, who had been using the word “OM” as a part of their trading style.
In light of the above facts, the Court held that Om was guilty of suppression and concealment and vacated the ex parte ad interim injunction. The Court stated, “A party that approaches the Court for a grant of discretionary relief has to come with clean hands and disclose all material facts which would have a bearing on the merits of the case”.
The Court, inter alia made the following observation Religious symbols like Om and names of deities cannot be monopolized. In India, it is a common practice that names of gods and goddesses and religious symbols are used as parts of names of individuals as well as business entities. No person can claim exclusivity with regard to names of deities as well as religious symbols.
