Maintaining the "purity" of the trademark register is one of the primary concerns of trademark practice in India. To enable this, the law provides for a procedure to apply for a rectification to be made in the Register. Provided under Chapter VII of the Trade Marks Act, 1999, it accords the power to cancel or vary registration and rectify the register (Section 57), correction of the register (Section 58), alteration of a registered trademark (Section 59) and adaptation of entries in the register to amended or substituted classification of goods or services. Societe des Produits Nestle S.A. v. Super Star Confectionery Co. (P) Ltd is one such case of rectification that appeared before the Intellectual Property Appellate Board.
Nestle, leading manufacturers of a range of products, from chocolates to cheese, biscuits to ice creams, and the first to produce infant formula, made an application for rectification of the trademark 'COFFEE TIME'. The mark 'COFFEE TIME' was stated to be a laudatory epithet, incapable of being distinguished and in contravention of Sections 9 (1)(a),(b) and (c) and Sections 57(1) and (2) of the Trade Marks Act, 1999.
The counsel for Nestle contended that the impugned trademark was descriptive and devoid of distinctive character. The Intellectual Property Appellate Board's attention was drawn towards the journal containing the advertisement, and the fact that the user claimed also being of that very year, the counsel contended that the mark could not have acquired distinctiveness in such a short period of use. The counsel also submitted that the registered mark was in contravention with Section 9 of the Act.
Examining if the applicant is aggrieved or not, Section 21 was deliberated upon. The main object of allowing rectification of an application was stated to be maintaining purity of the Register, which is for public purpose, and that the interest of the public was to be kept in mind while determining the rights of an applicant. The Board stated that the applicant is a person aggrieved under Section 57 , since the locus standi being determined liberally, it would not only be against the interest of others engaged in the same line of trade, but also against that of the public. On account of the mark being too descriptive, the court rendered Nestle to be rightfully aggrieved.
The qualification of the mark for registration in respect of Section 9 was also considered. The Board opined that a word used to describe the character of goods, could be used only to describe and not to distinguish it from the others. They stated that the mark being applied for and having been put to use for the first time, in the same year, could not distinguish itself in such a short span. They also found the word to be descriptive, falling squarely under section 9 of the Act, and thus ordered its removal from the register.
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