1. Court’s decision
The Delhi High Court (Division Bench) largely upheld an interim injunction in a pending trademark infringement suit over footwear branding where the registered proprietor of the mark “POWER” alleged infringement by the use of “POWER FLEX” on footwear. The Court refused to interfere with the restraint against using “POWER” (including “POWER FLEX”) as a trademark for footwear and allied goods, holding that no statutory impediment barred injunction and that the impugned mark could not claim descriptive-use protection. However, it also refused to injunct the advertising tagline “THE POWER OF REAL LEATHER”, finding it unlikely to cause confusion or association. The Court dismissed both cross-appeals, except it set aside a direction deleting a retailer from the array of defendants.
2. Facts
A commercial suit is pending before the Intellectual Property Division of the Delhi High Court where the registered proprietor of the footwear mark “POWER” alleged that another footwear seller/manufacturer used “POWER FLEX” for footwear, thereby infringing its registered mark. The plaintiff sought permanent injunction and filed an interlocutory application for interim restraint, which initially led to an ex parte ad interim order restraining use of “POWER” in relation to footwear, either alone or in combination.
During interim proceedings, the alleged infringer sought permission to sell existing stock, stating a stock statement showing 38,415 pairs. The Single Judge permitted disposal of pre-injunction stock subject to monthly disposal statements, an affidavit of value, and a bar on fresh manufacturing with the impugned marks. Subsequently, by a detailed order, the Single Judge (a) restrained use of “POWER” (including “POWER FLEX”) for footwear and related products, (b) permitted the tagline “THE POWER OF REAL LEATHER” with no undue prominence to “POWER”, and (c) allowed sale of existing stock with reporting conditions. Both sides appealed.
3. Issues
The core issue was whether continued use of “POWER FLEX” on footwear, during pendency of the suit, amounted to trademark infringement warranting interim injunction—especially considering arguments that “POWER” is a dictionary/laudatory word and that “POWER FLEX” is allegedly descriptive or honest concurrent use.
A connected issue was whether delay, alleged acquiescence, and asserted market presence of the defendant’s “POWER FLEX” footwear should defeat interim restraint. Another major issue—raised by the plaintiff in its appeal—was whether the Single Judge was right to permit (i) continued use of the tagline “THE POWER OF REAL LEATHER”, and (ii) exhaustion of existing stock without further safeguards.
4. Petitioner’s arguments
The alleged infringer argued that “POWER” is laudatory and a common dictionary word, not capable of monopoly for footwear, and that it had used “POWER FLEX” since 2010–2011 with celebrity endorsements and wide distribution, making the 2019 suit belated. It asserted it used “POWER FLEX” only alongside its house brand in a composite way, reducing confusion, and claimed market realities differentiated the products by category and price. It also invoked prosecution-history estoppel based on the plaintiff’s earlier trademark-prosecution position that different “POWER”-formative marks were conceptually and structurally different, and contended that delay and acquiescence should bar interim injunction.
5. Respondent’s arguments
The registered proprietor countered that its “POWER” mark (word and device) was registered for footwear and related goods, backed by long and extensive use and goodwill, and that the defendant’s claim of composite-only use was incorrect because “POWER FLEX” appeared independently on footwear. It argued the suit was not belated because knowledge of the impugned use arose when evidence was filed in trademark opposition proceedings, and insisted that by applying to register “POWER FLEX,” the defendant could not simultaneously argue that “POWER” is purely descriptive/laudatory or incapable of exclusivity. It challenged the evidentiary basis of the defendant’s claimed turnover and publicity for “POWER FLEX,” and sought to restrain both the tagline and the stock-disposal liberty as overly permissive.
6. Analysis of the law
The Division Bench located the infringement inquiry squarely within Section 29 of the Trade Marks Act, focusing on deceptive similarity and likelihood of confusion/association for identical or similar goods. It emphasised that infringement is a statutory tort, and interim relief remains governed by classic injunction principles but must be anchored in the statute’s framework of “use in the course of trade” and consumer confusion.
The Court also analysed the statutory boundaries of exclusivity in composite marks (Section 17) and the exception for descriptive indication of characteristics (Section 30(2)(a)), while separately discussing the defence frequently raised as “descriptive use” under Section 35 in the context of distinctiveness. It held that the word “POWER” was distinctive for footwear in this factual setting and that “POWER FLEX” was not descriptive of footwear characteristics in a way that would block injunction.
7. Precedent analysis
The Court referenced Supreme Court authority on “reasonable expansion” of product lines and allied/cognate goods while assessing confusion risk between sports footwear and leather footwear. It also drew from trademark jurisprudence on how courts evaluate deceptive similarity and consumer perception, reiterating that the test is tied to the average consumer and imperfect recollection rather than hyper-technical comparison.
On delay and acquiescence, the Bench addressed the legal premise that mere passage of time does not automatically defeat trademark enforcement, especially where the defendant fails to establish robust goodwill in the impugned mark and where statutory acquiescence standards are not satisfied. It agreed with the Single Judge that the defendant’s evidence of goodwill in the impugned mark itself was “sketchy” and therefore could not underwrite a strong delay/acquiescence defence at the interim stage.
8. Court’s reasoning
On merits, the Bench held that the registered proprietor had demonstrated a protectable right in the “POWER” mark for footwear, and that the defendant’s “POWER FLEX” could not claim safety as either a merely descriptive expression or as a protected descriptive use. The Court reasoned that “POWER FLEX” does not naturally “bring to mind” footwear and, at best, might suggest a feature, which is insufficient to treat it as descriptive in a manner that defeats injunction. Consequently, it found “no statutory impediment” to restraining use of the impugned mark on footwear pending trial.
At the same time, the Court refused to injunct the tagline “THE POWER OF REAL LEATHER”, holding that in the form used, the word “POWER” was not emphasised and an average consumer would understand and recall the tagline as highlighting leather content, not as indicating trade origin linked to the “POWER” footwear brand. Therefore, the tagline posed no real likelihood of confusion or association. The Court also upheld the Single Judge’s discretion in permitting exhaustion of existing stock subject to reporting, leaving any allegation of misuse of that liberty to be raised before the Single Judge by separate applications.
9. Conclusion
The Division Bench dismissed both cross-appeals challenging the interim order—thereby sustaining (i) the restraint on using “POWER” (including “POWER FLEX”) as a trademark for footwear and allied goods, (ii) the permission to use the tagline “THE POWER OF REAL LEATHER” without undue prominence to “POWER”, and (iii) the liberty to clear pre-injunction stock with reporting conditions. The sole modification was procedural-party related: the Court set aside the deletion of the retailer from the array of defendants, holding that such deletion was not justified at that stage and without the appropriate procedural footing. There was no order as to costs.
10. Implications
For trademark infringement litigation in the footwear market, the ruling reinforces that a registered footwear mark can secure strong interim protection even against “dictionary word” objections when the mark is shown to function distinctively in trade and the rival mark is used as a badge of origin on the goods. It also clarifies that courts may draw a line between trademark use (which can be restrained) and ordinary-language tagline use (which may be allowed if it does not create confusion or association).
Practically, the judgment is a reminder that defendants relying on delay/acquiescence must demonstrate credible, mark-specific goodwill and not merely brand-level presence. It also shows appellate restraint in interfering with Single Judge discretion on stock-clearance mechanisms, while leaving room for the plaintiff to seek tighter controls if evidence emerges that the “existing stock” liberty is being abused. Finally, by restoring the retailer as a defendant, the Court signalled that sellers and stockists may remain exposed in infringement actions because “use” in the course of trade can include offering goods for sale.
Case law references
- Laxmikant V. Patel v. Chetan Bhai Shah
Holding (as used): Courts should consider reasonable scope of a brand’s expansion when assessing confusion and allied goods.
Application: Used to reject a narrow segmentation argument that one party’s footwear category would never overlap with the other’s product space. - T.V. Venugopal v. Ushodaya Enterprises
Holding (as used): Distinctiveness and protectability principles distinguish descriptive from suggestive marks.
Application: Supported the view that a mark that is not directly descriptive can still be protectable and injunctable. - Pankaj Goel v. Dabur India Ltd (Delhi High Court, Division Bench)
Holding (as referenced in the record): Addresses how acquiescence may operate in trademark disputes.
Application: Discussed in the Single Judge’s approach and weighed at the appellate stage while examining delay/acquiescence arguments. - Micolube India Ltd v. Maggon Auto Centre (Delhi High Court)
Holding (as discussed): Criticised the practice of arraying a dealer first to avoid notice to the main alleged infringer.
Application: The Division Bench clarified that the procedural sequencing of defendants is not a standalone ground to deny injunction and restored the retailer as a proper party. - Ramnik Lal Bhutta v. State of Maharashtra; Raunaq International Ltd v. I.V.R. Construction Ltd
Holding (as cited): Add public interest as a consideration alongside the traditional interim injunction triad.
Application: Cited while explaining the injunction framework and what can (and cannot) influence interim relief. - Amritdhara Pharmacy v. Satyadeo Gupta
Holding (as referenced): Comparison is from the perspective of an average consumer with imperfect recollection.
Application: Anchored the consumer-confusion lens in evaluating deceptive similarity and association.
FAQs
1) Can a footwear brand stop another seller from using “Power” as part of a shoe trademark like “Power Flex”?
Yes, the Delhi High Court upheld an interim injunction restraining use of “Power” (including “Power Flex”) as a trademark for footwear and allied goods, holding that the statutory framework did not bar injunction and the impugned mark could not claim descriptive-use protection.
2) Is using “Power” in an advertising tagline automatically trademark infringement?
Not always. The Court allowed the tagline “THE POWER OF REAL LEATHER” because the word “Power” was not emphasised and the tagline was unlikely to cause confusion or association with the “Power” footwear trademark.
3) Does delay or long market presence defeat an interim trademark injunction?
Not by itself. The Court rejected the delay/acquiescence defence at this stage, noting the defendant’s evidence of goodwill specifically in the impugned mark was insufficient to neutralise the registered proprietor’s interim protection claim.