Court’s decision
The Delhi High Court, deciding cross-appeals in a long-running trademark dispute, upheld the grant of an interim injunction restraining use of the word “POWER” as a trademark or dominant mark for footwear by a rival manufacturer, while partly modifying the Single Judge’s directions. The Court held that “POWER” is not descriptive but a suggestive and inherently distinctive mark for footwear, backed by decades of use and substantial goodwill, and that its use as a trademark or dominant element by another footwear brand is likely to cause confusion. However, the Court clarified that descriptive use of the word “POWER” in an advertising tagline, without trademark prominence, and limited sale of existing stock under safeguards, could be permitted pending trial .
Facts
The dispute arose from a commercial suit filed before the Intellectual Property Division of the Delhi High Court alleging trademark infringement in the footwear segment. The plaintiff is a well-established footwear company claiming long-standing statutory and common law rights over the mark “POWER”, registered both as a word mark and device mark since the 1970s, and extensively used for footwear for over four decades.
The defendant, a footwear manufacturer marketing products under the brand “RED CHIEF”, adopted and used the mark “POWER FLEX” for footwear. The plaintiff alleged that use of “POWER FLEX” infringed its registered trademark “POWER” and diluted its goodwill. An ex parte ad-interim injunction was initially granted restraining use of “POWER” as a mark. Subsequently, the Single Judge confirmed the injunction, restrained use of “POWER FLEX” as a trademark, but permitted use of the tagline “THE POWER OF REAL LEATHER” without undue prominence and allowed sale of pre-existing stock subject to disclosures.
Both sides appealed: the defendant challenged the restraint on “POWER FLEX”, while the plaintiff challenged the permission to use the tagline and exhaust existing stock .
Issues
The Division Bench was called upon to decide whether use of the mark “POWER FLEX” infringed the registered trademark “POWER”, whether “POWER” was merely a descriptive or laudatory term incapable of exclusivity, whether the plaintiff had acquiesced due to delay, and whether descriptive use of “POWER” in a tagline and sale of existing stock could be permitted during pendency of the suit.
Petitioner’s arguments
The defendant argued that “POWER” is a common dictionary word and laudatory expression which cannot be monopolised. It was contended that “POWER FLEX” was always used along with the house mark “RED CHIEF”, that the products catered to a different market segment (leather footwear versus sports footwear), and that there was no likelihood of confusion given price differences and trade channels. The defendant relied heavily on alleged long user since 2010–2011, celebrity endorsements, newspaper advertisements, and delay by the plaintiff in approaching the Court, contending that acquiescence barred injunctive relief.
Respondent’s arguments
The plaintiff countered that it is the prior registered proprietor of the mark “POWER”, with registrations dating back to the early 1970s and voluminous evidence of continuous use, reputation, and sales running into hundreds of crores. It was argued that “POWER” is not descriptive of footwear but at best suggestive, that the defendant had itself applied for registration of “POWER FLEX” and was therefore estopped from denying distinctiveness, and that the evidence of defendant’s user was sketchy, inconsistent, and largely unsubstantiated. The plaintiff denied acquiescence and argued that knowledge of use arose only during trademark opposition proceedings.
Analysis of the law
The Court undertook an extensive analysis of Sections 28, 29, 30, 33 and 35 of the Trade Marks Act, 1999, reiterating that infringement hinges on deceptive similarity and likelihood of confusion, assessed from the perspective of the average consumer with imperfect recollection. It reaffirmed that suggestive marks are inherently distinctive and enjoy strong protection. The Court also clarified that honest concurrent use is not a defence to infringement, but a concept relevant primarily at the stage of registration.
Precedent analysis
The judgment relied on authoritative precedents including Laxmikant V. Patel v. Chetanbhai Shah on likelihood of expansion of business, Amritdhara Pharmacy v. Satya Deo Gupta on imperfect recollection, Pankaj Goel v. Dabur India Ltd. on acquiescence, and international principles on trademark distinctiveness drawn from McCarthy on Trademarks. The Court distinguished cases where delay defeats injunction, holding that delay alone cannot legitimise infringement in absence of honest adoption.
Court’s reasoning
The Court agreed with the Single Judge that “POWER” does not directly describe footwear and requires imagination to connect with the product, making it suggestive rather than descriptive. It held that the defendant’s use of “POWER FLEX” incorporated the plaintiff’s registered mark as a dominant and essential feature, creating a strong likelihood of confusion. Evidence showed that “POWER FLEX” was sometimes used independently, undermining claims of composite use with “RED CHIEF”.
At the same time, the Court recognised that use of the word “POWER” in ordinary English language as part of a descriptive tagline, without trademark emphasis, falls within permissible descriptive use. It also accepted that equity justified temporary permission to sell pre-existing stock, subject to strict conditions, so that interim relief did not operate oppressively.
Conclusion
The Delhi High Court upheld the core injunction restraining use of “POWER” or “POWER FLEX” as a trademark for footwear, confirmed that “POWER” is a protectable suggestive mark with strong goodwill, and rejected the defence of acquiescence. However, it allowed limited descriptive use of “POWER” in a tagline and regulated sale of existing stock, striking a balance between trademark protection and commercial fairness pending trial .
Implications
The judgment significantly strengthens protection for suggestive trademarks with long-standing reputation, clarifies that dictionary words are not automatically descriptive, and reiterates that delay does not cure infringement. It also provides guidance on balancing interim relief with equitable considerations like stock disposal and descriptive advertising use, making it a key precedent in Indian trademark injunction jurisprudence.
Case law references
- Laxmikant V. Patel v. Chetanbhai Shah – Expansion of business and likelihood of confusion.
- Amritdhara Pharmacy v. Satya Deo Gupta – Average consumer and imperfect recollection test.
- Pankaj Goel v. Dabur India Ltd. – Acquiescence in trademark law.
- Midas Hygiene Industries v. Sudhir Bhatia – Delay does not defeat injunction in infringement.
FAQs
1. Is “POWER” considered a descriptive trademark for footwear?
No. The Delhi High Court held it to be a suggestive and inherently distinctive mark.
2. Can a registered trademark owner stop use of a word in advertising taglines?
Not always. Descriptive use in ordinary language, without trademark prominence, may be permitted.
3. Does long delay automatically bar trademark injunctions?
No. Delay alone does not legalise infringement unless accompanied by clear acquiescence.
