After considering the case, the bench noted that such warnings are not unique to the Google Chrome browser but several others also display similar warning when users download third-part APK files and therefore prima facie, it appears to be an industry practice.
The judge rejected the argument for trademark infringement holding that an examination of the warning would show that the reference to the name of the APK file/application ‘WinZO’ is only for identifying the file being downloaded for the purpose of the warning.
“Hence, it does not constitute ‘use of the trademark in the course of trade’ within the meaning of Section 29(4). Further, since the defendant no.1 is not advertising goods/services by using the plaintiff’s marks in any manner, there is no case made out for infringement under Section 29(8) of the Trade Marks Act, 1999,” the Court said.
The bench said there is no disparagement either since there is no comparison between the products/services of the defendants with that of the goods/services of the plaintiff.
There is also no advertising for any goods or services, it was held.
“Therefore, there is no competing interest of the products/services of the defendants involved and in my prima facie view, no case of disparagement is made out.”
Source: Barandbench
