It is evident, Plaintiff has a registered trade mark – ‘NO TURN’. Plaintiff has been in continuous use of this trade mark since 15.01.2008. Defendant is the prior user of the mark since 2007. The use of the mark by Defendant is intermittent and not voluminous so as to establish the defence under Section 34 of The Trade Marks Act, 1999.

Plaintiff would still not be entitled to the relief of injunction for ‘NO TURN’ is a descriptive mark.

– Hon’ble Justice Mukta Gupta of Hon’ble High Court of Delhi, Peps Industries Private Limited v. Kurlon Limited, [CS(COMM)174/2019] decided on 16.03.2020.

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‘NO TURN’ has been used in relation to mattresses, which can be called to be communicating a peculiar quality or feature of a mattress. Even if a mark is descriptive in nature, it can acquire distinctiveness by virtue of being in use for a long period of time [Godfrey Philips India Ltd. v. Girnar Food & Beverages (P) Ltd., (2004) 5 SCC OnLine 257]. We refrain from expressing any view on whether the mark ‘NO TURN’ is descriptive.  

No issue of the mark not being descriptive was raised. Learned Single Judge was not correct in giving a finding on an issue which was never raised by KURLON. KURLON is restrained from using the mark ‘NO TURN’ or any other trademark deceptively similar thereto, till disposal of the suit. 

– Hon’ble Justice Vibhu Bakhru and Hon’ble Justice Amit Mahajan of Hon’ble High Court of Delhi, Peps Industries Private Limited v. Kurlon Limited, [FAO(OS) (COMM) 94/2020] decided on 07.10.2022.