The court, while granting time to Indian firm HM Megabrands Pvt Ltd and its proprietors to stop use of the mark and commence its business under an alternative mark, said the order of interim injunction should be made operative with effect from July 9.
The court passed the order on a plea by H & M Hennes & Mauritz AB, Sweden and its Indian subsidiary H & M Hennes & Mauritz Retail Pvt Ltd, New Delhi, seeking an injunction restraining HM Megabrands Pvt Ltd and its proprietors Arif Merchant, Hamza Arif Merchant and Hashim Arif Merchant from infringement of trade mark of the foreign company.
“I am therefore of the opinion that the plaintiffs (foreign firm) have a prima facie case,” Justice Rajiv Sahai Endlaw said.
The court said that thought the proprietors of the Indian firm have commenced their business in 2011, if permitted to continue their trade during the pendency of the suit, they are likely to develop further goodwill under the impugned mark.
Once a prima facie case is found in favour of the foreign firm, it is not deemed appropriate to allow the Indian firm to gather further goodwill and business in the mark.
“The injury and loss to the foreign firm, if the Indian firm during the pendency of the suit are permitted to continue using the mark, is implicit and no order of keeping an account can compensate the foreign firm sufficiently,” it said.
The foreign firm submitted that it had adopted the trade mark or name ‘H&M’ in early 1970 and secured registration for the mark in 1985 in the United Kingdom.
The plea said said the firm and its Indian subsidiary form part of the H&M Group of companies which are designers/marketers/sellers of wide and varied fashionable clothing collection and ancillary products/services for women, men, teenagers and children.
It claimed that to come close to the foreign entity’s business, the Indian firm is representing the alphabets ‘H’ and ‘M’ in an informal and asymmetrical italicised manner similar to that of the plaintiffs’ artwork and is also using the same colour combination of red and white.
The Indian firm said they chose the trademark HM as alphabets of the proprietor’s name — Hashim Merchant and that in 2011, H&M had no recognition in India.
It said it adopted the trade marks ‘HM MEGABRANDS’ to carry on business to manufacture, distribute and trade in various kinds of footwears, leather bags, designer bags, belt, clutches, readymade garments, imitation jewellery and other accessories.