Plaintiff’s grievance, pithily placed, is, Defendant has in a brazen and blatant manner copied Plaintiff’s registered trademark: ‘FLY HIGH’. Plaintiff has no exclusive right to use the word ‘HIGH’ which, as brought out by Defendant, is a fact concealed by Plaintiff. Defendant is right in stating, ‘FLY HIGHER’ is only used in conjunction with its well-known mark ‘VISTARA’. ‘FLY HIGHER’ cannot be termed as a ‘trade mark’ as defined. Defendant can escape Section 29 of The Trade Marks Act, 1999. In fact, Section 30(2)(a) is available.
The manner in which ‘FLY HIGHER’ is being used does not appear to be with an intent to deceive, misrepresent or confuse.
It is brought out, various Airlines, such as Air India, Emirates, Spice Jet, Lufthansa et cetera have been using and continue to use the phrase ‘FLY HIGH’ or a variation thereof as part of their social media posts, advertising campaigns or even as a part of their Frequent Flyer Programmes and on account of this usage, common to trade, Defendant has never sought registration of the phrase ‘FLY HIGHER’. On a perusal of documents, Court finds prima facie merit in Defendant’s submission.
Even assuming for sake of argument – Defendant uses ‘FLY HIGHER’ as a trademark – no right of Plaintiff is infringed. Plaintiff’s registration for the mark ‘FLY HIGH’ in different classes cannot restrain Defendant in classes for which Plaintiff has no registration, unless services are similar or allied and cognate. Plaintiff cannot succeed in arguing, services offered by Defendant are allied and cognate on all parameters. Defendant’s customers comprise well-informed discerning people, who would not choose to travel in Vistara Airlines based on Plaintiff’s repute. Defendant does not need to encash on Plaintiff’s reputation, as rightly contended.
It is made clear, observations are only prima facie and shall not impact final adjudication.
– Hon’ble Justice Jyoti Singh of Hon’ble High Court of Delhi, Frankfinn Aviation Services Pvt. Ltd. v. Tata SIA Airlines, [CS(COMM) 54/2022] decided on 28.10.2022.