Recognition of Prior Use Against Trademark Registration

India, being a common law country, recognises the superior trademark rights through prior use against the statutory rights obtained through Registration. Relying on this, the Delhi High court has recently confirmed the preliminary injunction against Lupin in a suit for infringement and passing off filed by Sun Pharma. The Plaintiff claiming to be proprietor and user of the trademark TRIVOLIB since 2011, filed a suit seeking injunction against the use of the mark TRI-VOBIT along with other remedies. Earlier, the court passed an interim injunction restraining the defendant from dealing in medicinal preparations under the trade mark TRI-VOBIT which has been challenged by the Defendant in the vacation application. The primary arguments taken by Defendant were its trademark registration for the mark TRI-VOBIT and its prior use of the mark VOBIT since 2008. As the Defendant was also the registered proprietor of the mark, the court could not decide the preliminary injunction