Trade Marks Act, 1999

Section 2(1)(zb)

Trademark 'TUFF' and 'TUFF LABEL'.
HELD Definition of 'trade mark' under the Act means a mark "which is capable of distinguishing the goods or services of one person from those of others Use of a mark that is not capable of distinguishing the goods of such proprietor of the trade mark would not qualify for the protection under the Act the Defendant has been unable to show that its goods bearing the mark TUFF were at any point of time since 1991 and prior to 1996 available in the market. There is absolutely no evidence placed on record by the Defendant to show that it has actually sold its goods using the mark 'TUFF' or 'TUFF & TUFF' even thereafter. For proving prior user, the Defendant repeatedly referred to the two newspaper advertisements inserted by it in 1993, the six trade enquiries between 1994 and 1995 emanating from these advertisements. Between 1993 and 1995, there were seven indents of John and John Traders and one indent of Bolt House. There is also a letter from John and John Traders asking the Defendant to send goods from outside. Then we have the grant by the Postal Department of the telegraphic address 'TUFF' to the Defendant.
Even the The partnership deeds themselves are unregistered. The deeds do not mention the impugned trade mark 'TUFF'. As set out by defendants

Interim injunction granted