Long Use Of Trademark Must Be Supported By Evidence To Claim Passing Off: J&K&L High Court

A company claiming long-standing use of a trademark must support its assertions of prior use and market reputation with material on record. Mere claims in a plaint cannot establish a prima facie case for passing off, the Jammu and Kashmir and Ladakh High Court has held.

A Division Bench of Justice Sindhu Sharma and Justice Sanjay Dhar observed that a business must establish an appreciable customer base or trade connection associated with its mark, logo or trade dress.

“It is a settled law that in an action for passing off the plaintiff has to show that its goods or services have acquired a distinctiveness or public reputation in the market. There must be an appreciable customer base or trade connection associated with the name, mark, logo or trade dress. Thus, the proof of prior user and local recognition is essential.”

The court further observed:

“Once the plaintiff is able to show the aforesaid essentials, it has also to satisfy the Court that the defendants have made a false representation intentionally or otherwise in the course of trade to believe that the defendants' goods/services are those of the plaintiff or are connected/associated with the plaintiff. The plaintiff has also to show that misrepresentation of the defendants has caused or is likely to cause economic or reputational injury which can manifest in the shape of loss of sales or diversion of customers, brand dilution or damage to reputation through association with an inferior product or service.”

The bench made these observations while dismissing an appeal filed by Bardana Super Hi-Tech Agro Tonic Pvt. Ltd. It found that the company had not produced invoices, balance sheets or other business records to substantiate its claim that it had used the disputed marks on its products since 2011.

Bardana claimed that it had been engaged in the research, development and commercialisation of agro-tonic and organic manure products since 2001. It maintained that its products had been marketed under “HI-TECH AGRO TONIC” and “SUPER HI-TECH AGRO TONIC” from around 2011, before the company was incorporated in 2017.

It also claimed goodwill arising from distinctive packaging featuring a red-and-yellow colour scheme, apple imagery, a crown-like logo, a central brand panel and a distinctive border.

The company alleged that Amcons IPL (Agro Industrial Expansion) Pvt. Ltd. had started marketing fertiliser and manure products under “SUPER AGRO-TECH”, using deceptively similar packaging and trade dress.

The respondents disputed the allegations, arguing that expressions such as “SUPER”, “HI-TECH”, “AGRO” and “AGRO TONIC” were descriptive and commonly used in the agricultural products market.

The Commercial Division had initially granted an ex parte injunction on March 25, 2026. Following a preliminary objection, it transferred the suit to the Commercial Court, Pulwama, on April 24, 2026. The Supreme Court dismissed Bardana's challenge to the transfer on May 26, 2026. The Commercial Court subsequently refused interim relief and vacated the earlier restraint through its order dated July 11, 2026.

The High Court found that Bardana had produced no documents establishing business activity before its incorporation in 2017 or use of the disputed marks since 2011.

The Bench also rejected its trademark infringement claim. It held that the Class 35 registrations, covering advertising and business-related services, did not amount to registration of the marks for fertiliser products. It therefore held that an infringement action based on unregistered product marks was barred under Section 27(1) of the Trade Marks Act, 1999.

The judgment, however, records Bardana's reliance on Trade Mark Registration No. 4151497 in Class 1 for fertilisers and allied goods. It does not explain this while concluding that the relevant product marks were unregistered and the application stood objected to.

Bardana had also sought to produce invoices for 2017 and 2018 at the appellate stage. The court found that documents covering only two years could not establish sufficiently long use or acquired reputation.

“Usage of the mark for a couple of years only would not mature into the acquisition of distinctiveness or public reputation in the market,” it observed.

Finding no perversity or illegality in the Commercial Court's order, the Bench declined to interfere and dismissed the appeal.