Justice Jyoti Singh held that the phrase ‘Fly High’ is widely used, both in airline sector as well as with respect to coaching institutes in aviation sector including travel and tourism, and Vistara is neither the only one nor the first user of the phrase ‘Fly Higher’.
Further, Vistara has earned a reputation and goodwill in the aviation sector and does not need to encash on plaintiff’s reputation to operate its airlines.
“The manner in which the phrase FLY HIGHER is being used by the defendant does not appear to be with an intent to deceive, misrepresent or confuse members of the public. Prominent use of the well-known trademark in conjunction with the phrase FLY HIGHER further defies any intent of the defendant to misrepresent, contrary to the stand of the plaintiff. Hence, plaintiff has failed to establish a prima facie case of passing off against the defendant,” the Court said.
The Court, therefore, vacated an interim injunction that was earlier passed in Frankfinn’s favour on January 21.
The Court was hearing a suit by Frankfinn claiming that Vistara had brazenly copied its registered trademark over ‘Fly High’ and was using it for allied and cognate services.
“It cannot be claimed by Plaintiff that the trademark is capable of being exclusively associated with the Plaintiff as the trademark ‘FLY HIGH’ has a dictionary meaning, which connotes ambition/pursuit of higher success/a level up and is merely laudatory in nature“, the judge held.
Source: Barandbench
