Asus Technology has been restrained by the Delhi High Court
from selling and advertising mobile phones and accessories under the trademark
Zen, ZenFone or any other identical trademark.
The
Justice Manmohan order came on a plea filed Telecare Network seeking to
restrain Asus from directly or indirectly selling, offering and
advertising for sale mobile phones, accessories or any other related products
or any other goods under the trademark Zen, ZenFone or identical
trademarks.
The court
ordered Asus not to sell any product which is identical or deceptively similar
to the trademark Zen and Zen Mobile.
Telecare
Network said that the marks Zen and ZenMobile come under the Trade Marks
Act, 1999, and has been continuously and extensively used by the company in
their feature phones, smartphones, tablets and accessories since 2008.
The court
said: "...the triple identity test is satisfied as the defendants (Asus)
have made use of a deceptively similar/identical trademark (ZenFone) in
relation to identical goods (mobile phones) having identical trade
channels."
"Consquently
the defendants (Asus) having adopted a deceptively similar mark wherein the
dominant part of the defendant's mark ZenFone is the plaintiff's (Telecare)
mark Zen, for the same product i.e. mobile phones, shows prima facie that there
is a likelihood of confusion and damage to the plaintiff's goodwill," it
said.
Telecare
Network has argued that Asus' mark was likely to cause confusion in the minds
of the public that two were somehow associated and Asus acted with mala fide
intent to ride upon its goodwill and reputation.
Countering
this submission, Asus said that that there was no scope of confusion or
deception in the minds of the consumers as the mark ZenFone was coupled with
its well-known registered house mark Asus, thereby identifying the source and
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