ALPHAVECTOR INDIA Vs. SACH INDUSTRIES:
The registrability of numerical trademarks
On 1 st February 2023, the Delhi HC passed a judgment in the case of Alphavector India vs.
Sach Industries, protecting the plaintiff’s trademark, being the numerical ‘91’, against the
defendant’s trademark, which was the numerical ‘99’. As can be seen, the unique factor about
this case is the nature of the trademarks themselves; the trademarks in question aren’t words
or logos, but mere numericals. We analyse this particular case to gauge the principles applied
by the court in arriving at a decision in this case.
The registrability of Numerical trademarks
The Trademark Act, 2017 simply defines trademarks as marks which are capable of being
represented graphically. The term ‘mark’ is further defined as “….a device, brand, heading,
label, ticket, name, signature, word, letter, numeral (emphasis added), shape of goods,
packaging or combination of colours…”. The Trademark regime in India can be seen to
explicitly allow numbers as possible trademarks.
And yet, registrations of numericals as trademarks have been few and far between. The main
reason being that numerical-only trademarks generally fail to pass the test of distinctiveness.
Numbers rarely ever involve any type of stylization which would make them distinctive with
respect to other marks. Allowing trademark protection for marks consisting only numbers
alone could very well create a dangerous monopoly, leading to mischievous litigation over
the use of numericals, even in instances where there has been non-commercial use of
common numbers.
We cite here the case of Mona Aggarwal & Anr. V. Glossy Colour & Paints Pvt. Ltd. and
Anr. [FAO(OS) 572/2015 & CM 23119/2015], which had dealt with marks exclusively
consisting of numbers. The Respondent was the holder of registration in mark ‘1001’, and
had alleged that the appellant’s mark ‘6004’ was deceptively similar to its own mark. Both
the Appellant and Respondents dealt in paints, distemper, varnish, etc. The Court ruled in the
favour of the respondent, holding that the colour scheme, get-up, layout, and arrangement of
features were exactly the same, hence the purchasers are very much likely to be confused.
Apart from the above, the Court also observed that the use of a certain numeral as a
trademark by an entity would in no way make the use of a different set of numerals as
inherently non-distinctive. In any form of comparison, other elements like get-up and use of
colour would definitely be relevant, and the marks have to be seen in whole.
Background of Case
In Alphavector India vs. Sach Industries, the plaintiff had applied for registration for the word
and device marks for ‘91’. The defendants had applied for the word and device marks for
‘99’. Both of these marks were in the process of registration, but the plaintiff would file a suit
against the defendants anyway with a claim to prior use. The marks in question were applied
for registration for similar goods i.e. bicycles and accessories to bicycles. It is to be noted that
both parties hold registrations for marks wherein the numbers form part of alpha-numeric
trademarks.
The Court would rule in favour of the Plaintiff. The Ld. Judge agreed with the plaintiff’s
argument that the number ‘9’ is a preeminent part of both the marks and that as a prior user,
the defendants are to be restrained. In form of proof, the plaintiff would only submit their
sales figures. The defendant’s only line of argument was the mark being inherently dissimilar
since different sets of numbers have been used.
Conclusion
It could be observed that due to greater evidence being provided by the plaintiff, the court
would have no choice but to rule against the defendants. Yet, questions remain on whether
the principles of law have been applied properly or not.
For example, it is to be noted that as per the submissions from both the parties less than a
year separates the defendant's use of the 99 mark from the plaintiffs' use of 91. Since neither
of the marks are registered, the plaintiff had to establish goodwill. As proof, the plaintiff
would submit only sales figures and nothing more. Similarly, the court would never go into
the distinctiveness of the mark itself. Considering the nature of the trademark, the standard of
distinctiveness should be much higher, with a greater and varied degree of real-life evidence
to support arguments.
