Philips loses appeal against use of trademark by Kay Kay

The order was in favour of a decision of Trade Mark Registry in dismissing opposition of Philips Electronics

Electronics goods manufacturer Philips Electronics NV has lost a trademark case against Delhi-based company Kay Kay Home Appliances Private Ltd, as the Intellectual Property Appellate Board (IPAB) has upheld an order of the patent office allowing trademark ‘Phillips’ for the latter’s hurricane lantern.

The order came in an appeal by the Netherlands-based Koninklijke Philips Electronics NV against an order issued by the deputy registrar of trademarks, New Delhi, on June 14, 2002, dismissing its opposition and allowing the registration of Kay Kay Home Appliances Pvt Ltd in the Class 11 category.

According to the registry, the application for trademark ‘Phillips’ was filed on September 13, 1989 claiming use since October 1, 1985 and currently the registration is valid up to September 13, 2019. The Class 11 of the trademark classification deals with apparatus for lighting, heating, steam generating, cooking, refrigerating, drying ventilating, water supply and sanitary purposes.

An order issued by IPAB Chairman Justice K N Basha and technical member (trademark) Sanjeev Kumar Chaswal, in July, 2015,said, “....we have concurred with a view of the deputy registrar to the effect that the goods manufactured by the first respondent (Kay Kay Home Appliances) to be used with kerosene is totally different from the electronic goods manufactured by the appellant (Philips Electronics) are to be used by electrical energy.”

The order says efforts to send notice to the first respondent failed and even though advertisements were published, the company has neither appeared in person nor through any advocate. IPAB has, therefore, proceeded with the matter on the basis of merit.

“We are constrained to state at this stage that as in the modern age, the use of hurricane lantern by the public is very negligible. There is absolutely no question of the first respondent by their manufacture of the hurricane lantern to compete with the appellant’s products, which are exclusively electrically operated products for the purpose of lighting, etc.,” it stated. It also opined that the similarity should not only be in the mark, but also the goods produced under the same.

IPAB also observed that the consumers for both the products are different and that Philips Electronics also agreed that they are not manufacturing similar goods manufactured by the other company. The appellant has failed to point out any infirmity or illegality in the impugned order warranting IPAB’s interference, it added.

“In view of the aforesaid reasons, we are of the view that no ground was made out warranting our interference in the impugned order. Accordingly, the appeal is dismissed,” said the order.

An e-mail sent to Philips Electronics did not elicit a response.

However, Deb Jyoti Ghosh, Philips Electronics’ counsel, argued that the deputy registrar’s order is liable to be set aside, as the official has ignored the substantial contentions raised by the company and also overlooked the evidence adduced by them. The company argued that Kay Kay Home Appliances manufacture lighting apparatus, which would cause confusion among consumers. The trademark under challenge is deceptively similar to that of his client’s trademark, he added.