India Today Group’s interim injunction against the TV channel Nation Today over the use of its trademark ‘Today’ was rejected prima facie by the Delhi High Court, reports SpicyIP.

The court ruled that India Today Group cannot claim an injunction against the use of the name Nation Today despite it running the news channel Headlines Today under a license agreement. What hurt India Today’s defense was a case it fought against Punjab Today, where India Today group argued that the mere use of the word ‘Today’ does not make the competing mark similar to its mark. While replying to the Examination Report issued by the Trademark Registry, it had stated that the conflicting mark ‘Punjab Today’ is visually, structurally and phonetically dissimilar to their mark ‘India Today’. That being the case, the plaintiffs are barred by their own submissions from making such a claim against the mark ‘Nation Today’.

In the current case, the Nation today counsel alleged India Today Group of concealing facts as there are numerous third parties, apart from the defendants, who have adopted and are using the trade mark.

It was also noted that an individual cannot be permitted to monopolise use of the said word, even if the person has more than 50 marks registered under a single class, all of which contain a word as descriptive to a business as “Today” for news business. At any rate, there is no registration of mark ‘TODAY’ under class 38. Further, the ‘Today’ formative marks mentioned by the plaintiffs are combination marks and do not provide any exclusive rights to the use of the mark TODAY.

It was reiterated that the term ‘Today’ is descriptive in nature for news publications and news related products and hence cannot be claimed to be proprietary to one entity alone.

Other points noted by the court

The word ‘Today’, being a common English word, is free to be adopted and used by third persons in relation to their goods. It is reiterated that the mark TODAY is an oft used expression for a daily publication/news channel and the mark TODAY is descriptive and common to trade in respect of such goods/services. The word ‘TODAY’ is extensively used in India and across the globe in respect of daily publications/ news channels.

– This application is, liable to be dismissed not only for the relief claimed on the basis of alleged infringement of trade marks of the plaintiffs by Nation Today but also on the basis of alleged attempt of the defendants of passing off their yet to be launched TV news channel as that of ‘India Today Group’.

– ‘Headlines Today’ is not registered under the class 38 and the application for registration of the mark Headlines Today, is under objections before the Trade Marks Registry since 2011.

–  By the Plaintiffs’ own assertions the defendants have not launched their channel, therefore these allegations are based on mere conjectures and surmises and have no merit.

– Court said that ‘Today’ is not a brand owned by the plaintiffs. It also said that Today has not acquired the status of a well known trademark, that commands the highest level of protection irrespective of the class they have been applied for and used in. It was also denied that the India Today Group has been using the trademark ‘Today’ and its variants continuously since 1975 and have spent sufficient resources in terms of money, time and creativity to promote and publicise the said brands. The court also pointed out that India Today Group failed to file any document in support of the alleged use of its trademark ‘Today’ since 1975.

– There is no doubt that the plaintiff no.1’s trade mark ‘India Today’ is a registered trade mark but despite that registration the intended use of the mark ‘Nation Today’ for a new TV news channel by the defendants cannot amount to infringement of the India Today Group’s mark as defined under Section 29 of the Act of 1999.

– Prima facie, there is no likelihood of any viewer of TV news channel getting misled into believing that the news channel Nation Today is a part of India Today Group. The court notes that the word India in India Today’s mark is of a small font as compared to the word Today, while in the Nation Today’s mark, the word Today is of a smaller font as compared to the word Nation.

– Though the news published in India Today can be read through internet on mobile phones, iPads etc. it can be said that this mark is being used for telecommunications. However, having an access to the contents of the magazine through internet cannot be compared with viewing of news on a TV channel.