Delhi High Court
Columbia Pictures Industries, Inc vs Registrar Of Trade Marks & Anr on 6 July, 2026
Author: Jyoti Singh
Bench: Jyoti Singh
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: 6th July, 2026
+ C.A.(COMM.IPD-TM) 44/2025
COLUMBIA PICTURES INDUSTRIES, INC .....Appellant
Through: Mr. Satvik Varma, Senior Advocate
with Ms. Sugandha Bhatia, Mr. Parth Agrawal,
Mr. Shantanu Parmar and Mr. Balram, Advocates.
versus
REGISTRAR OF TRADE MARKS & ANR. .....Respondents
Through: Ms. Nidhi Raman, CGSC with Mr.
Om Ram and Ms. Nikita Singh, Advocates for
R-1.
CORAM:
HON'BLE MS. JUSTICE JYOTI SINGH
JUDGEMENT
JYOTI SINGH, J.
1. This appeal is filed on behalf of the Appellant under Section 91 of the
Trade Marks Act, 1999 (‘1999 Act’) read with Rule 156 of the Trade Marks
Rules, 2017 (‘2017 Rules’) challenging order dated 16.04.2025 passed by
Respondent No.1/Registrar of Trade Marks, whereby opposition of the
Appellant filed vide Notice of Opposition bearing No.1159167 on
18.04.2022 against the mark GHOST BUSTER sought to be registered
under application No.4763668 in Class 05 in respect of goods
“Pharmaceutical, veterinary and sanitary preparations; dietetic substances
adapted for medical use, food for babies; plasters, materials for dressings;
materials for stopping teeth, dental wax; disinfectants; preparation for
destroying vermin; fungicides, herbicides”, was rejected.
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2. To the extent relevant and as pleaded, case of the Appellant is that the
Appellant is a Delaware Corporation and is an American Film Studio and
Production Company established in 1924 as part of Sony Pictures
Entertainment conglomerate and is one of the ‘Big Five’ major American
Film Studios responsible for distributing/producing several renowned
movies including but not limited to GHOSTBUSTERS, Spider-Man, Men
in Black, Jumanji and Karate Kid, to name a few. One of the most famous
and successful movie series of the Appellant is Ghostbusters, which was
released in 1984. It was a blockbuster movie and became extremely popular
as one of the most successful supernatural comedy films of 1980s and in
2015, U.S. Library of Congress selected the film for preservation in the U.S.
National Film Registry. Film’s theme song ‘Ghostbusters’ by Ray Parker Jr.
was a great hit and stayed in the number one spot on Billboard hot for some
three weeks in 1984.
3. It is stated in the appeal that directed by the acclaimed Ivan Reitman
and based on an original concept created by actors-writers Dan Aykroyd and
Harold Ramis, Ghostbusters is a fictional story of three para-psychologist
dismissed from Columbia University professorship, who set up a ghost
removal business in New York. In 1984, the movie crossed revenues of
more than USD 229 million for its theatrical release, making it the second
highest grossing film of 1984 in US and Canada and was also one of the
only four films to cross more than $100 million that year. The film was re-
released theatrically several times thereafter in the years 1985, 2014, 2019
and 2021. Appellant produced animated television series called ‘THE REAL
GHOSTBUSTERS’ in 1986, followed by a sequel and spin-off known as
‘EXTREME GHOSTBUSTERS’ in 1997. In 2022, an animated streaming
television Netflix series of the same was also announced and recently in
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2024, Appellant released yet another GHOSTBUSTERS film titled
GHOSTBUSTERS: FROZEN EMPIRE. In India, GHOSTBUSTERS
movies have been released as follows:-
4. It is stated that GHOSTBUSTERS movies are also available for
viewing on various platforms in India including Sony Liv, Apple TV,
Amazon Prime, Netflix and Google Play. Appellant also sells several
merchandise products with the trademark GHOSTBUSTERS including but
not limited to toys, apparel, mugs, keychains, phone covers, blankets,
books, costumes, face masks etc., which are readily available on
GHOSTBUSTERS’ official website https://shop.ghostbusters.com/. The
products are also sold in India on Amazon India, a third-party ecommerce
website. Appellant has extensively advertised and promoted the mark
GHOSTBUSTERS since its adoption in 1984. Thousands of articles have
been published in newspapers, periodical and journals in India pertaining to
the GHOSTBUSTERS movie series. These publications include India
Today, Times of India, Hindustan Times, Indian Express, Economic Times,
Outlook India, to name a few. Appellant is the registered proprietor of the
trademark GHOSTBUSTERS in India in different classes as follows:-
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5. The registrations are valid and subsisting and in addition, Appellant
has also secured registrations in several other countries such as Canada,
Germany, Japan, UK, USA etc. Owing to the success of the movies
Ghostbusters as well as extensive promotion and use of the trademark
GHOSTBUSTERS, coupled with high quality of goods/services rendered by
the Appellant thereunder, Appellant has garnered enviable goodwill and
reputation and the members of public and trade associate the mark only with
the Appellant. Appellant enjoys not only statutory rights in the mark by
virtue of registrations but also common law rights therein. In fact, the mark
GHOSTBUSTERS fulfils all parameters and qualifies for being granted the
status of well-known mark under Section 2(1)(zg) of 1999 Act.
6. It is stated that the genesis of the present appeal is the illegal and
dishonest adoption of the mark GHOST BUSTER by Respondent No.2,
which is identical to Appellant’s GHOSTBUSTERS, save and except, the
letter ‘S’ at the end and the words GHOST AND BUSTER being apart from
one another. Appellant became aware of the impugned mark in India, when
the same was advertised in the Trade Marks Journal No.2031 on 20.12.2021
at page 780. Appellant filed Notice of Opposition against the application
under Rule 42 of 2017 Rules, to which Respondent No.2 filed counter
statement under Rule 44 albeit without serving copy of the same on the
Appellant, a fact brought to the notice of Respondent No.1. However,
without waiting for service of the counter statement, Appellant proceeded to
file evidence under Rule 45 on 10.01.2024 and Respondent No.2 filed its
evidence under Rule 46. Hearing was scheduled on 01.04.2025, wherein
both parties were heard and later both filed their written submissions.
However, the opposition was rejected by Respondent No.1 vide impugned
order dated 16.04.2025.
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7. Laying a challenge to the impugned order, learned Senior Counsel for
the Appellant submitted that Respondent No.1 failed to consider the bad
faith adoption of the impugned mark by Respondent No.2 as per provisions
of Section 11(10)(ii) of 1999 Act. Appellant’s GHOSTBUSTERS mark was
adopted in 1984 and has been extensively used since then and a simple
Google search of the words GHOST BUSTER shows results only of the
Appellant’s mark GHOSTBUSTERS and considering the blockbuster
success of the movie Ghostbusters, followed by its sequels and immense
popularity of the movie and the mark, it is unbelievable that Respondent
No.2 had no prior knowledge of Appellant’s mark. In fact, the prior
knowledge of Respondent No.2 is certified by the fact that Appellant had
earlier opposed an application filed in U.S. by sister concern of Respondent
No.2 and on opposition being filed the application was abandoned knowing
that there was no defence and the Trademark Trial and Appeal Board of U.S.
Patent and Trademark Office (‘USPTO’) passed a judgment on 07.01.2020
in favour of the Appellant. Respondent No.2’s application in India is riddled
with falsities and misstatements, which also shows bad faith adoption.
Respondent No.2 has stated in the application that it adopted the mark after
conducting profound and extensive research and search of the Trade Marks
Register and only after ensuring that no other prior, similar or identical
trademark exists for any goods or services related to or identical therewith.
This statement is in teeth of the previous opposition proceedings between
the Appellant and the sister concern before USPTO and on this ground
alone, which was brought forth before Respondent No.1, the application
ought to have been rejected. Moreover, the application was filed under Class
05 which includes pharmaceutical products, however, the adoption was
sought to be justified by relying on use of ‘High Performance Liquid
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Chromatography’ (‘HPLC’) analysis. It is pertinent that ‘Chromatography
Columns’ fall under Class 09 (for lab use) and Class 11 (for industrial use).
Therefore, the explanation provided for adoption of the mark has no
nexus with goods falling under Class 05. Even assuming, Respondent No.2
accepts that it only manufactures chromatography consumables including
HPLC columns, notably, Appellant has registration in Classes 09 and 41 in
India with user since 29.11.1985. Unable to defend this case also,
Respondent No.2 has consciously chosen to stay away from these
proceedings despite service and was proceeded ex parte vide order dated
21.01.2026. This shows a pattern in the conduct of the sister concerns in
abandoning proceedings once they realise that no plausible defence is
forthcoming.
8. It was further argued that Respondent No.2 has failed to showcase any
plausible reason before Respondent No.1 as to why it adopted the mark
GHOST BUSTER out of several permutations and combinations that may
be available. Respondent No.1 has seriously erred in accepting the
explanation offered that ‘BUSTER’ is used since the product efficiently
absorbs or removes impurities. It is not understood why the word BUSTER
was chosen, when the mark GHOSTBUSTERS was coined by the Appellant
and is arbitrary and fanciful, enjoying the highest degree of protection under
McCarthy spectrum of distinctiveness. Going by the explanation offered,
Respondent No.2 could have adopted the marks such as GHOST
ABSORBER, GHOST REMOVER etc. and adoption of BUSTER only
shows the mala fide intent to come close to the Appellant and encash on its
formidable goodwill and reputation. [Ref.: Somany Ceramics Limited v.
Shri Ganesh Electric Co. and Others, 2022 SCC OnLine Del 3270]. Law
on bad faith adoption is fairly well settled. In BPI Sports LLC v. Saurabh
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Gulati and Another, 2023 SCC OnLine Del 2424, this Court in the context
of Section 11(10)(ii) held that bad faith can be understood either as unfair
practice involving lack of good faith on the part of the applicant at the time
of filing an application for registration or unfair practice based on acts
infringing third person’s rights. There is bad faith not only in cases where
applicant intentionally submits wrong or misleading information but also
where he intends, through registration, to lay his hands on the trademark of
the third party. This decision has been relied by this Court in several
judgments on the aspect of bad faith and dishonest adoption, including the
decision in Kia Wang v. Registrar of Trademarks and Another, 2023 SCC
OnLine Del 5844.
9. It was argued that Respondent No.1 did not appreciate that
registration and use of the impugned mark will be detrimental to the
distinctive character and repute of Appellant’s mark GHOSTBUSTERS as
also to public interest inasmuch as members of public with average
intelligence and imperfect recollection will in all likelihood associate the
impugned mark with the Appellant and registration is therefore also contrary
to provisions of Section 11(2) of 1999 Act. Section 11(2) provides that a
trademark which is identical with or similar to an earlier trademark and is to
be registered for goods/services which are not similar to those for which the
earlier trademark is registered in the name of a different proprietor, shall not
be registered, if or to the extent the earlier trademark is a well-known
trademark in India and use of the later mark without due cause would take
unfair advantage of or be detrimental to the distinctive character or repute of
the earlier trademark. Explanation (b) to Section 11 defines ‘earlier
trademark’ as a trademark, which on the date of the application for
registration of the trademark in question, was entitled to protection as a well-
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known trademark. Section 2(1)(zg) defines “well-known trademark”, in
relation to any goods or services, means a mark which has become so to the
substantial segment of the public which uses such goods or receives such
services that the use of such mark in relation to other goods or services
would be likely to be taken as indicating a connection in the course of trade
or rendering of services between those goods or services and a person using
the mark in relation to the first-mentioned goods or services. Section 11(5)
provides that a trademark shall not be refused registration on the grounds
specified under sub-Sections (2) and (3), unless objection on any one or
more of those grounds is raised in opposition proceedings by the proprietor
of the earlier trademark. It is urged that concept of well-known mark has
been derived owing to international obligations of India being a signatory of
Trade Related Aspects of Intellectual Property Rights (TRIPs) Agreement,
which was signed by India on 15.04.1994. In order to bring the law in
conformity with TRIPs, the 1958 Act was amended with 1999 Act with
addition of Sections 2(1)(zg) and 11(2)-(9), in accordance with Article 16(3)
of TRIPs and this finds mentioned in the judgment of this Court in ITC
Limited v. Central Park Estates Private Limited, 2022 SCC OnLine Del
4132.
10. It was strenuously urged that protection of Section 11(2) is not only
available to marks which are declared or determined as well-known marks
and it is clear that the phrase ‘earlier trademark’ in Section 11(2) is a mark,
which is entitled to protection as a well-known trademark, as defined in
Explanation (b) to Section 11. The word ‘entitle’ is defined in Black’s Law
Dictionary to mean “to grant a legal right to or qualify for”. On a plain
reading of the provision and applying the golden rule of interpretation and
taking into account the definitions, it is abundantly clear that legislature did
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not stipulate that for protection under Section 11(2), it was necessary for the
trademark to be declared as well-known. Had that been the case, legislature
would not have used the word ‘was entitled to protection as a well-known
trademark’ in the Explanation. This position is fortified by Section 11(5),
where also the words used are ‘the proprietor of the earlier trademark’ and
not ‘proprietor of declared well-known mark’. It is further provided that
proprietor of the earlier trademark can raise objection taking shelter of
Section 11(2) and (3) in the opposition proceedings and therefore, in the
opposition proceedings, the Registrar is empowered to decide on the well-
known nature of the earlier trademark, independent of an application filed
under Rule 124, which was introduced in 2017 Rules. Surely, there had to be
and existed a mechanism and process between 1999 to 2017, as there could
be no legal vacuum.
11. It was also urged that this position is fortified by reading of Rule 43 of
the 2017 Rules, which in respect of Notice of Opposition or on an earlier
right on which the opposition is based, provides in sub-Rule (1)(b)(iii) that
“where the opposition is based on an earlier trademark, which is alleged to
be a well-known trademark within the meaning of sub-Section (2) of
Section 11…”. Here also it is the proprietor of the earlier trademark, which
has the right to oppose and which necessarily does not depend on the mark
being declared/determined as a well-known mark. Conjoint reading of all
these provisions and particularly the use of the words “was entitled to
protection” can leave no doubt that Section 11(2) comes in picture only
where determination/declaration of the mark as well-known has not taken
place, inasmuch as if the mark has been declared as a well-known mark,
then the legislature would have simply used the words “determined to be
well-known” as has been used in Section 11(8). Pertinently, even Section
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2(1)(zg) does not use the word ‘declared’ while defining a well-known
trademark. In fact, Rule 124 of 2017 Rules is a result of delegated
legislation and by this provision, Registrar of Trade Marks has been
assigned the powers to determine the well-known status of a mark as an
alternate to a non-adversarial mechanism as held in Tata SIA Airlines
Limited v. Union of India, 2023 SCC OnLine Del 3446. It was
further emphasized that provisions of Section 11(2) include the words
“well-known trademark in India” when registration is opposed in India but
in contrast, when an independent request is made for determination,
Registrar is required to follow provision of Section 11(9), where legislature
has carefully used the words “well-known trademark” but omitted the words
in India.
12. It was argued that all these submissions were extensively put forth
before Respondent No.1 along with supporting evidence to show that the
mark GHOSTBUSTERS has built formidable reputation of a threshold
required for being entitled to protection as a well-known mark envisaged
under Section 11(6) and thus even if the goods of Respondent No.2 were
dissimilar, it’s almost identical mark could not be registered. However
regrettably, impugned order does not deal with this aspect of the matter at
all. In Godfrey Philips India Limited v. Khoday India Limited and
Another, 2023 SCC OnLine Mad 7201, the Madras High Court while
dealing with an appeal against rejection of opposition by the Registrar
observed that once the Appellant pleaded that its mark was well-known and
adduced evidence in support thereof, Registrar should have examined the
same and determine if the mark was well-known for deciding objections
under Section 11(2). In Sharp Kabushiki Kaisha, Japan v. Sharp
Industries, Sharp Nagar, Kalappatti, Coimbatore and Another, 2023 SCC
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OnLine Mad 8415, the Madras High Court observed that Section 11(2)
applies when the marks in question are identical/similar and goods/
services are not similar and the provision becomes applicable only if
objector’s mark is well-known in India and to decide this issue it is
necessary to focus not only on the definition in Section 2(1)(zg) but also
other conditions specified in Section 11(2). In Lego Juris A/S v. Gurumukh
Singh and Another, 2024 SCC OnLine Mad 4858, it was held that the
Explanation to Section 11 clarifies the legal position that an earlier
trademark would also include a trademark which was entitled to protection
as a well-known mark, even when not declared so and thus any
identical/similar mark will be ineligible for registration even in respect of
dissimilar goods.
13. Learned Senior Counsel also referred to and relied on the judgment of
this Court in Bolt Technology OU v. Ujoy Technology Private Limited and
Another, 2023 SCC OnLine Del 7565, where it was observed that reasons
for protecting a well-known mark is to ensure that the applicant seeking to
register a similar/identical mark does not take unfair advantage of a mark of
repute so as to be detrimental to its distinctive character. In Indofil
Industries Limited v. Sun Pharmaceutical Industries Limited, MANU/TM/
0017/2022, the Registrar in fact examined the documents submitted by the
opponent to decide whether the mark fulfilled the parameters of a well-
known mark and was entitled to protection. Appellant placed on record
ample material which evidenced that Appellant’s mark GHOSTBUSTERS
is entitled to be declared a well-known mark under Section 11(6) of 1999
Act, however, none of this material has been considered and this crucial
point has been completely glossed over by the Registrar. The details placed
before the Registrar can be captured as follows:-
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Factors under 11(6) Evidence
The knowledge or recognition of i. First Ghostbusters film was
that trade mark in the relevant released in India in 1985;
section of the public including ii. Other sequels have also been
knowledge in India obtained as a released in India;
result of promotion of the trade
mark iii. Globally, the revenue
generated only from the first
film was around USD 229
million in 1984. Revenue
generated from re-releases are
also substantial;
iv. Various merchandise and other
products, viz., apparel, toys,
mugs, keychains, books,
pens, phone covers, games,
costumers, etc., bearing the
mark of the Appellant, are sold
in India;
v. Various OTT platforms in
India stream movies under the
mark of the Appellant.
the duration, extent and i. Since at least 1985, the mark
geographical area of any use of has been in continuous use in
that trade mark India as the first film was
released in 1985;
ii. The film(s) of the Appellant
bearing the mark were released
worldwide and streamed on
various OTT platforms across
the world.
The duration, extent and i. Ever since its adoption in
geographical area of any 1984, the Appellant has
promotion of the trade mark, extensively advertised and
including advertising or publicity promoted the mark worldwide;
and presentation, at fairs or ii. Various documents showing
exhibition of the goods or services strong presence on social
to which the trade mark applies media, online channels were
also put forth before the
Registrar;
iii. Various articles have been
published in the Indian media
of the Appellant's mark.
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The duration and geographical i. Indian registrations of
area of any registration of or any GHOSTBUSTERS:
application for registration of that a. Reg. No. 2379995 in
trade mark under this Act to the Class 9 and 41; User:
extent that they reflect the use or 29.11.1985;
recognition of the trade mark;
b. Reg. No. 4331300 in Class
25 and 28 dated 25.10.2019.
ii. The mark has been registered
in over 50 countries.
The record of successful i. Opposition No. 91251581
enforcement of the rights in that before the USPTO where
trade mark, in particular the extent identical mark applied by
to which the trade mark has been Welch Materials, Inc., sister
recognized as a well-known trade concern of Respondent No.2
mark by any court or Registrar was refused.
under that record. ii. In 2015, US Library of
Congress selected the film of
the Appellant for preservation
in the US National Film
Registry.
iii. The Appellant also maintains
vigilance teams in order to find
out third-party infringers.
14. It was submitted that in light of the plethora of documents, as above,
which have also been placed before this Court, it is wholly wrong for
counsel for Respondent No.1 to contend that Appellant did not provide
enough evidence in support of its claim of having achieved reputation
required to seek protection as a well-known mark and thus reliance on the
judgments in N. Ranga Rao & Sons v. Shree Balaji Associates and Others,
2018 SCC OnLine Mad 13537 and Apollo Hospitals Enterprises Ltd., Rep.
by its authorized signatory S.M. Mohan Kumar- Manager Legal v. Dr.
Dheeraj Saurabh, 2023 SCC OnLine Mad 7521, is completely misplaced.
In fact, the glaring fallacy in the impugned order is lack of exercise to
determine the nature of Appellant’s mark in light of the evidence led in the
opposition proceedings, which if carried out would have led to an inevitable
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conclusion that the mark GHOSTBUSTERS is entitled to protection as a
well-known mark and hence, impugned mark was disqualified from
registration. Respondent No.1’s reliance on the judgment of the Supreme
Court in Nandhini Deluxe v. Karnataka Cooperative Milk Producers
Federation Limited, (2018) 9 SCC 183, is also misplaced inasmuch as
‘Nandhini’ was not a coined or arbitrary word and is a generic word.
Moreover, Respondent No.1 failed to consider the degree of similarity
between Appellant’s mark GHOSTBUSTERS and impugned mark GHOST
BUSTER, the immense reputation and goodwill of Appellant’s mark, which
completely distinguishes its case from the judgment in M/s Nandhini
Deluxe (supra). [Ref.: Pepsico, Inc. and Another v. Jagpin Breweries
Limited and Another, 2023 SCC OnLine Del 2542].
15. Appearing on behalf of Respondent No.1, Ms. Nidhi Raman, CGSC
defended the impugned order and argued that the opposition filed by the
Appellant has been rightly rejected. The impugned order is a well-reasoned
and speaking order based on correct appreciation of facts and law and
suffers from no legal infirmity, warranting interference in the present
appeal. It was argued that the goods of the rival parties are entirely
different and unrelated. Appellant cannot claim monopoly on the word
GHOSTBUSTERS for all goods and services, specially, for those for which
it has no registration or commercial use. The difference in the rival goods
can be seen as follows:-
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16. It was emphasised that owing to difference in the nature of goods
involved, the respective trade channels as also the class of consumers are
also completely different and distinct, inasmuch as Appellant’s consumers
are movie-goers and consumers of popular merchandise while Respondent
No.2’s consumers are highly specialized and educated professionals in
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scientific and pharmaceutical fields, who use HPLC analysis. Therefore,
there is no overlap and much less in the market of Hollywood film franchise
and market for a technical product used to purify mobile phases in scientific
analysis. Resultantly, an average consumer, let alone a scientifically
qualified professional, is not likely to be confused or draw a connection
between a pharmaceutical preparation and a motion picture making entity.
17. It was further argued that Appellant has no registration for the mark
GHOSTBUSTERS in Class 05 and its goods are for general public in
entertainment sector, whereas Respondent No.2’s goods are highly
specialized products intended for use in pharmaceutical and scientific
research industry. It is a settled law that a proprietor of a trademark in a
particular class/classes of goods (Classes 09, 25, 28 and 21 of Appellant),
cannot claim monopoly over goods in distinct class of goods (Class 05 of
Respondent No.2), when it holds no registration in the other class/classes.
There is no material on record, which shows use of the mark
GHOSTBUSTERS by the Appellant for goods falling under Class 05 and
therefore, the opposition against registration of the impugned mark in Class
05 was misconceived. Respondent No.1 has correctly accepted the
explanation of Respondent No.2 for adoption of the impugned mark in
Class 05 i.e. the impugned mark GHOST BUSTER was derived from the
specific function of the product in HPLC analysis. GHOST refers to ‘Ghost
Peaks’ which are unexpected peaks that appear in a chromatogram and
BUSTER refers to the product’s function, which is to eliminate or bust these
impurities causing the Ghost Peaks. Respondent No.1 found the explanation
to be completely logical, credible and in consonance with the function of the
product and therefore, the impugned mark has an independent origin and
there is no dishonest adoption or bad faith, as alleged by the Appellant.
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18. It was urged that Respondent No.1 has exercised its power judiciously
and within the four corners of Section 11(2). Rule 124 of 2017 Rules
provides a dedicated and exhaustive mechanism for determining/declaring
well-known trademarks and Appellant cannot bypass the procedural
requirement of filing an application in form TM-M, paying the prescribed
fee and submitting a comprehensive statement of case under Rule 124(1) to
seek the special status and come through back door of a Notice of
Opposition, to be declared as a well-known mark. An opposition under
Section 21 of 1999 Act is an in personam dispute, whereas declaration of a
trademark as a ‘well-known’ mark establishes an in rem right, granting a
cross-class monopoly, enforceable against the world and Registrar cannot be
faulted for refusing to circumvent the explicit legislative mandate. Assuming
for the sake of argument that Registrar could entertain such a prayer, the
impugned order constructively and conclusively operates as a refusal to
grant well-known status to the mark GHOSTBUSTERS. Appellant’s
assertion that the Registrar failed to adjudicate on the well-known status of
the mark is incorrect. Once the Registrar has categorically held that
Appellant cannot claim a monopoly over the entire Class 05, it amounts to a
statutory determination under Section 11(2) of 1999 Act. In any event,
Appellant had not placed on record sufficient evidence which would have
enabled the Registrar to come to a conclusion that all parameters under
Section 2(1)(zg) read with Section 11(6) and (7) have been fulfilled. The
following table will illustratively demonstrate that the evidence on record
was in fact insufficient. While the documents successfully establish a
popular footprint within the global entertainment and media industry, they
completely fail to satisfy the rigorous market specific statutory thresholds of
Section 11(6) and (7). Appellant has not produced any evidence to show
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commercial use, brand recognition or cross-class spill over reputation with
the highly specialized pharmaceutical industry relevant to Respondent
No.2’s Class 05. General internet searches, box office releases, consumer
toys and territorially restricted foreign registrations cannot bridge the gap
between the general movie-going consumers and those purchasing
pharmaceutical products. The relevant table is as follows:-
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19. In light of the aforesaid submissions, it was submitted that the
impugned order is legally justified and calls for no interference in the
appeal.
20. Heard learned Senior Counsel for the Appellant and learned CGSC
for Respondent No.1.
21. Before proceeding to examine the rival contentions of the parties, it
will be useful to refer to the impugned order rejecting the opposition of the
Appellant and allowing the application of Respondent No.2 for registration
of the mark GHOST BUSTER in Class 05. The reason that has weighed
with Respondent No.1 for rejection of the opposition is that Appellant is a
registered proprietor of the mark GHOSTBUSTERS in Classes 09, 41, 25
and 28 and does not have registration for goods falling in Class 05 and has
failed to provide any document to substantiate its claim of prior use of the
mark specifically for goods in Class 05 and hence, merely on the basis of its
registrations, it cannot claim proprietorship of the mark for goods in
Class 05. Reliance is placed on the judgment of the Supreme Court in M/s
Nandhini Deluxe (supra), where the Supreme Court held that the proprietor
of the trademark cannot enjoy monopoly over the entire class of goods,
particularly, when he is not using the trademark in respect of certain goods
in the said class. Therefore, essentially the rejection is owing to the
dissimilarity of goods and distinction of classes in question. The other
ground of rejection is that Respondent No.2 has adopted the mark honestly
and for this Respondent No.1 has accepted the version of Respondent No.2
that the word GHOST is derived from the function of the product in HPLC
analysis, especially in gradient elution, where some unexpected peaks called
ghost peaks may appear in a chromatogram owing to many reasons such as
residue in injection valve, water pollution impurities and unknown
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components in samples. BUSTER originates from the capacity of the
product to efficiently adsorb and remove the impurities from mobile phase
to eliminate the interference of the target peaks, installed between the
gradient mixer and the sample.
22. There is no dispute inter se the parties that Appellant’s mark
GHOSTBUSTERS was registered in India in Classes 09 and 41 on
14.08.2012 claiming use since 29.11.1985 and in Classes 25 and 28 on
25.10.2019. Respondent No.2 filed its application for the mark GHOST
BUSTER on 01.12.2020 on a ‘proposed to be used’ basis, whereafter it was
advertised in the Trade Marks Journal No.2031 under Class 05 on
20.12.2021. Appellant filed Notice of Opposition on 18.04.2022 to which
Respondent No.2 filed counter statement on 20.07.2022. Appellant filed
evidence under Rule 45 on 10.01.2024 followed by evidence of Respondent
No.2 under Rule 46 on 08.03.2024 and Appellant’s evidence under Rule 47
on 11.04.2024. By the impugned order dated 16.04.2025, Respondent No.1
dismissed the opposition and proceeded to register the mark of Respondent
No.2, after hearing the parties on 01.04.2025 and taking on record their
written submissions.
23. The first and foremost argument raised by learned Senior Counsel for
the Appellant is that Respondent No.1 has misdirected itself in rejecting the
opposition on the ground that Appellant has registrations only in Classes 09,
25, 28 and 41 and the mark is used for goods and services related to the
fields of entertainment and media and allied goods/services while the mark
of Respondent No.2 sought to be registered is for pharmaceutical products in
the healthcare industry in Class 05, which is a separate class, without
looking into or determining the well-known status of Appellant’s mark
GHOSTBUSTERS under Section 11(2) of 1999 Act and consequently,
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determining whether an identical mark GHOST BUSTER of Respondent
No.2 has been adopted dishonestly and its use without due cause will be
detrimental to the distinctive character and repute of Appellant’s
GHOSTBUSTERS. Had Respondent No.1 entered into this exercise, the
question of dissimilarity of goods and distinction of classes would have been
meaningless and Respondent No.1 would have arrived at the correct
conclusion. Ms. Nidhi Raman, on the other hand, contested that in order to
seek protection and succeed in opposing the registration of identical/similar
mark for dissimilar goods under Section 11(2), Appellant should have first
sought declaration/determination of its mark GHOSTBUSTERS as a well-
known mark, either from the Court or by following the path of Rule 124
before the Registrar and in absence of such declaration, the opposition was
legally untenable. Without prejudice, Ms. Raman sought to defend the order
by urging that there is an implied rejection of this contention by Respondent
No.1 since it has been held that Appellant cannot claim monopoly over
dissimilar goods in a different class to oppose registration of the mark
GHOST BUSTER in Class 05 and lack of express reasoning with respect to
Section 11(2) cannot be fatal to the impugned order.
24. Plain reading of the impugned order shows that some of the crucial
contentions raised by the Appellant in the opposition notice read with the
evidence under Rule 47 of 2017 Rules and written submissions have not
even been considered. There is absolutely no adjudication on the submission
that Appellant’s mark GHOSTBUSTERS is an earlier well-known trade
mark under Section 11(2) and thus a nearly identical mark GHOST
BUSTER cannot be registered as that would be detrimental to the character
and repute of the mark GHOSTBUSTERS and the factum that rival goods
were pharmaceutical products in Class 05 was irrelevant. In my view, non-
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consideration of this submission is a glaring error in the order and the
defence that there is implied rejection of this ground is completely
fallacious. Section 11(2) provides that a mark which is identical or similar to
an earlier mark and is sought to be registered for goods or services which are
dissimilar to those for which the earlier trade mark is registered in the name
of a different proprietor, shall not be registered if or to the extent the “earlier
trade mark” is a well-known trade mark in India and the use of the later
mark without due cause would take unfair advantage of or be detrimental to
the distinctive character or repute of the earlier trade mark. Therefore, once
an opposition was filed by the Appellant claiming its mark to be an ‘earlier
mark’ under Section 11(2), entitled to protection across classes, Registrar
was obliged to consider the said ground of opposition as per law and take a
view one way or the other. The impugned order shows that Respondent No.1
has not even referred to this ground, leave alone dealing with it, despite the
Appellant taking this ground in the Notice of Opposition and the detailed
written submissions and also filing overwhelming evidence to support the
same and no plausible explanation is forthcoming even before this Court for
this glaring omission, save and except, callously brushing aside the non-
consideration of this ground of opposition by stating that there is implied
rejection. Respondent No.1 was under a mandate to consider this issue as it
had a significant bearing on determination of a crucial question whether the
mark GHOST BUSTER could be registered for dissimilar goods in a
different Class 05, for which Appellant does not have registration albeit
being nearly identical to the registered mark GHOSTBUSTERS of the
Appellant. Examination of the matter under Section 11(2) would have
shifted the focus from the dissimilarity of goods, which is the sole ground in
the impugned order to reject the opposition.
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25. Ms. Raman is also not correct in her argument that for seeking benefit
of Section 11(2) and opposing registration as a proprietor of an earlier mark,
formal declaration of the mark as a well-known trademark is a pre-condition
and hence, before filing the opposition, Appellant ought to have followed
the required procedure of seeking declaration either from the Court or for
inclusion of mark in the list of well-known trademarks from the Registrar.
For ready reference, relevant sub-Sections of Section 11 are as follows:-
“11. Relative grounds for refusal of registration.–(1) Save as provided
in section 12, a trade mark shall not be registered if, because of–
(a) its identity with an earlier trade mark and similarity of goods or
services covered by the trade mark; or
(b) its similarity to an earlier trade mark and the identity or similarity
of the goods or services covered by the trade mark,
there exists a likelihood of confusion on the part of the public,
which includes the likelihood of association with the earlier trade
mark.
(2) A trade mark which–
(a) is identical with or similar to an earlier trade mark; and
(b) is to be registered for goods or services which are not similar to
those for which the earlier trade mark is registered in the name of a
different proprietor,
shall not be registered if or to the extent the earlier trade mark is a well-
known trade mark in India and the use of the later mark without due cause
would take unfair advantage of or be detrimental to the distinctive
character or repute of the earlier trade mark.
xxx xxx xxx
(4) Nothing in this section shall prevent the registration of a trade mark
where the proprietor of the earlier trade mark or other earlier right
consents to the registration, and in such case the Registrar may register
the mark under special circumstances under section 12.
Explanation.–For the purposes of this section, earlier trade mark
means–
(a) a registered trade mark or an application under section 18
bearing an earlier date of filing or an international registration
referred to in section 36E or convention application referred to in
section 154 which has a date of application earlier than that of the
trade mark in question, taking account, where appropriate, of the
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priorities claimed in respect of the trade marks;
(b) a trade mark which, on the date of the application for registration
of the trade mark in question, or where appropriate, of the priority
claimed in respect of the application, was entitled to protection as a
well-known trade mark.
(5) A trade mark shall not be refused registration on the grounds specified
in sub-sections (2) and (3), unless objection on any one or more of those
grounds is raised in opposition proceedings by the proprietor of the
earlier trade mark.”
26. Close look and analysis of the language of Section 11(2), leaves no
doubt that the provision does not require or envisage the ‘earlier trademark’
to be a formally declared well-known mark. Sub-Sections 11(6) and (7)
provide factors which are required to be considered for determining whether
that trade mark is a well-known mark. Explanation (b) to Section 11 defines
an ‘earlier trademark’ as a mark registered on the date of the application for
registration of the trademark in question and ‘entitled to protection as a well-
known trademark’. Clearly, the phrase in Section 11(2) is ‘mark is a well-
known trade mark in India’ and not ‘the mark is a declared well-known
mark and/or included in the list of well-known marks by the Registrar’. This
only means and connotes that the earlier mark qualifies the threshold
requirement of Section 2(1)(zg) i.e., it has become well known to the
substantial segment of the public which uses the goods or receives services
in relation to which the mark is used and is likely to be taken as indicating a
connection in the course of trade and is well known in India. The words
“entitled to protection” in Explanation (b) are not without significance
inasmuch as ‘entitle’ as defined in Black’s Law Dictionary means ‘to grant a
legal right to or qualify for’ and cannot be construed to mean ‘declared’.
Therefore, the enquiry under Section 11(2) is whether opponent’s mark is
substantially well known amongst the relevant segment and enjoys immense
and extensive reputation in India and to test this, factors delineated in
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Section 11(6) and (7) are to be considered and the enquiry is not whether
there is a prior formal declaration as a well-known mark. Had the legislature
intended the earlier mark under Section 11(2) to be a declared well-known
mark, the provision would have so stated expressly and in the absence of an
express exposition to this effect, it is not open to the Court to substitute
words in statutory provisions beyond what has been legislated.
27. The central theme of Section 11(2) is the well known status and
repute of the earlier registered mark and its protection so that the Register of
Trade Marks does not include a later mark, which owing to its
similarity/identity, takes unfair advantage of or is detrimental to the
distinctive character or repute of the earlier mark. The right to oppose
registration under 11(2) thus arises from the well-known nature of the earlier
mark and is not dependant on its formal declaration as a well-known mark,
in my considered view. The legislative intent is clear from the common
thread that runs in sub-Section (5), which provides that a trademark shall not
be refused registration on the grounds specified in sub-Sections (2) and (3),
unless objection on any one or more of those grounds is raised in opposition
proceedings by the proprietor of the ‘earlier trademark’ and does not require
that the opponent should be a proprietor of a ‘declared’ well-known mark.
28. I am fortified in my view by the judgment of the Madras High Court
in Lego Juris (supra), where the Court was dealing with rectification
petitions under Section 57 of 1999 Act and the Petitioner who was the
registered proprietor of the mark LEGO sought removal of the mark LEGO
adopted by Respondent No.1 for its confectionery products from the
Register of Trade Marks. Be it noted that Petitioner’s mark was declared as
well-known trademark in foreign jurisdictions and Section 11(2) was
invoked for cancellation of the registration. Respondent No.1 contended that
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its adoption of LEGO was bona fide and that its registration was in a class
different from the class for which Petitioner’s LEGO mark was registered
and hence, the goods were wholly dissimilar. Objection was also taken that
Petitioner’s mark was not a declared well-known mark as contemplated
under Section 11(6) read with Section 2(1)(zg) of 1999 Act, besides
disputing the similarity in the rival marks. Madras High Court took the view
that Explanation (b) to Section 11(4) clarifies that an earlier trademark
would also include a trademark which was entitled to protection as
well-known mark on the date of the application for registration by the rival
party de hors the nature of goods and/or trade channels, meaning thereby
that it is not mandatory to have a prior declaration under Section 11(2) for
opposing registration of an identical or similar mark. Madras High Court
observes that even though Petitioner’s declaration was pending and as and
when granted will be prospective but construing the provisions of Section
11(2), the LEGO mark of the Petitioner will be entitled to be protected
against the identical mark of Respondent No.1, even though the goods were
way different. This judgment, therefore, highlights that to seek protection
under Section 11(2) and oppose the registration of an identical/similar mark,
the earlier trademark must only satisfy the requirement of being a mark
‘entitled’ to protection as a well-known mark as provided under Section
2(1)(zg).
29. The above position also finds support from Rule 43 of the 2017 Rules,
which in respect of a Notice of Opposition or on an earlier right on which
the opposition is based and provides that “where the opposition is based on
an earlier trade mark which is alleged to be a well-known trade mark within
the meaning of sub-section 2 of section 11[…]”. The language of this Rule
is also a pointer to and furthers the interpretation that opposition under
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Section 11(2) is not conditioned by declaration of a mark as a well-known
and the registered proprietor of the earlier mark has only to satisfy through
evidence that it fulfills all parameters under Sections 11(6) and (7) read
2(1)(zg) and is entitled to protection as a well-known mark. Any other
interpretation would render the Explanation (b) and Section 11(5) as also the
corresponding Rule, otiose. As rightly urged on behalf of the Appellant,
legislature in its wisdom deliberately chose not to use the term “declared”
since before the amendment to the Trade Marks Rules in 2017, whereby
Rule 124 was introduced, the only way to seek a declaration of well-known
trade mark was perhaps to engage in adversarial proceedings, such as law
suits for infringement, passing off, cancellation, opposition, etc.
Additionally, even in the definition of well-known trademark, legislature has
consciously used the words “a mark which has become so to the substantial
segment of the public”, which only means a substantial segment of the
public that patronizes the product/service associated with the earlier
trademark. The whole objective of the protection extended to a well-known
mark is to ensure that a mark, which is similar/identical, does not dilute its
reputation and the character. Furthermore, legislature has consciously used
two distinct terms, i.e. “well-known” trademark in Section 11 (2) and
“determined to be well known” in Section 11 (8). The golden rule of
interpretation stipulates that words and phrases in a statute must be given
their ordinary meaning. Therefore, the contention of Respondent No.1 that
in the absence of a formal declaration of the mark GHOSTBUSTERS,
opposition by the Appellant was misconceived, is rejected and it is held that
there is no statutory prescription under Section 11(2) that the proprietor of
an earlier mark must first obtain a declaration of ‘well-known trademark’
status before invoking the provision in opposition proceedings. Section
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11(2) merely requires that the earlier mark is well-known in India and the
Registrar is empowered to determine whether the mark is well-known by
considering factors under 11(6) and (7), including duration and extent of
use, extent of promotion, recognition among relevant public, registrations
and record of enforcement etc. by looking into evidence led by the
opponent.
30. It needs no gainsaying that if Appellant is able to satisfy that its mark
GHOSTBUSTERS meets the required threshold under Section 2(1)(zg) read
with sub-Sections (6) and (7) of Section 11 it shall be entitled to oppose
registration of nearly identical mark GHOST BUSTER under Section 11(2)
despite the dissimilarity of rival goods and difference in the classes.
However, be it noted at the cost of repetition that the Respondent No.1 did
not even delve into this aspect of the matter and focussed its attention only
on the dissimilarity of goods and classes and thus having travelled on the
wrong path, reached the wrong destination. Learned Senior Counsel for the
Appellant took pains to demonstrate that Appellant made extensive and
specific averments and also filed plethora of documents in support thereof to
show that the mark GHOSTBUSTERS is a well-known mark within the
meaning of Section 2(1)(zg) as it fulfills the criteria laid down in Section
11(6), but regrettably, the impugned order is silent on this aspect. Hence,
Ms. Raman’s reliance on the judgements in N. Ranga Rao (supra) and
Apollo Hospitals (supra), to contend that no evidence was led under Section
11(6), is also misplaced.
31. Appellant also urged before Respondent No.1 that the adoption of the
mark GHOST BUSTER by Respondent No.2 was in bad faith for two
reasons. Firstly, the reputation of the mark GHOSTBUSTERS was so well
known that the adoption was only to take unfair advantage of Appellant’s
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GHOSTBUSTERS as there could be no other reason to adopt unique name
coined by the Appellant. Secondly, Respondent No.2 was well aware of
Appellant’s rights in the mark inasmuch as its sister concern Welch
Materials Inc. (Welch) filed an application on 04.06.2019 before the USPTO
bearing No.88458465 for registration of the mark GHOST BUSTER, which
was opposed by the Appellant. On 14.10.2019, Notice of Opposition was
served on the attorney of Welch and soon thereafter the application was
abandoned. Owing to the no contest by Welch, Appellant filed notice of
motion for default judgment on 02.12.2019 and on 07.01.2020, USPTO
passed an order refusing the application filed by Welch. Despite this
significant proceeding and order, Respondent No.2 filed the application in
question in India on 01.12.2020 on ‘proposed to be used’ basis. However,
even to this extent there is not a whisper in the impugned order. Appellant is
also right in its submission that Respondent No.2 does not contest and/or
abandons prosecution when it finds it has no defence as even in the present
proceedings, there was no representation despite service and Respondent
No.2 was set ex parte. Learned Senior Counsel rightly placed reliance on the
judgments of this Court in BPI Sports (supra) and Kia Wang (supra) to
urge that bad faith is an unfair practice involving lack of good faith at the
time of filing applications and includes not only cases where an applicant
intentionally submits wrong or misleading or insufficient information to the
Trade Marks Office but also where it intends to lay his hands on the mark of
a third-party, through registration, with which it has had earlier relations.
The term ‘bad faith’ is a shade milder than malice.
32. On perusal of the impugned order and the detailed Notice of
Opposition, evidence and written submissions of the Appellant filed
before Respondent No.1 and for all the aforesaid reasons, I am of the view,
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that this is a fit case for remand before Respondent No.1 for fresh
consideration. The Registrar shall look into all relevant contentions raised by
the Appellant and the supporting documents as also the rival contentions of
Respondent No.2. More particularly, Respondent No.1 shall consider and
adjudicate Appellant’s contentions relating to alleged bad faith and its claim
that the mark GHOSTBUSTERS is entitled to protection as a well-known
trademark on the touchstone of Sections 2(1)(zg) and 11(6) and (7) of 1999
Act under the provisions of Section 11(2). The decision will be taken within
three months from today, after giving an opportunity of hearing to the
Appellant and Respondent No.2.
33. Accordingly, the impugned order dated 16.04.2025 cannot be
sustained and is quashed and set aside. Respondent No.1 shall decide the
case on its own merits in accordance with law and it is made clear that this
Court has not expressed any opinion on the merits of the case.
34. Appeal stands disposed of in the aforesaid terms.
JYOTI SINGH, J.
JULY 06 , 2026/YA
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