Trademark Victory of Dolma Aunty - The Case of Dolma Tsering Versus Mohd. Akram Khan and Another

Trademark Victory of Dolma Aunty - The Case of Dolma Tsering Versus Mohd. Akram Khan and Another. We all love momos, right? 
If you love momos, you must have heard the name of "Dolma Aunty Momos". 
This beloved South Delhi food stall has been serving up Tibetan delicacies, particularly its signature momos, since 1994. Founded by Dolma Tsering, a Tibetan refugee who found her way to Delhi, Dolma Aunty Momos quickly became a household name in the bustling streets of Lajpat Nagar. With its humble beginnings and dedication to quality and tradition, Dolma Aunty Momos garnered a loyal following over the years, drawing locals and visitors alike to savour its mouthwatering offerings. However, the legacy of Dolma Aunty Momos faced a challenge when an unauthorised individual, Mohd Akram Khan, attempted to capitalise on the brand's success by registering a similar trademark without authorization. This started a legal trademark case between Dolma Tsering and Mohd Akram Khan, in a landmark trademark victory for Dolma Aunty Momos in the Delhi High Court. This case highlights the importance of protecting small businesses and individual entrepreneurs against trademark infringement, reaffirming the legal right of prior use and established brand identities in the Indian trademark law.
Dolma Aunty Case Background 
Dolma Aunty Momos, a beloved momo stall in South Delhi, owned by Dolma Tsering, faced a trademark dispute with an individual named Mohd Akram Khan. Dolma Aunty Momos had been operating since 1994 and had gained significant popularity for its delicious Tibetan delicacies, particularly momos.
The dispute arose when Dolma Tsering discovered that Mohd Akram Khan had registered a similar trademark, "Dolma," without authorization. Although Dolma Tsering had not officially registered her trademark, she had been using the name extensively, and it had become strongly associated with her stall.
To protect her business and its reputation, Dolma Tsering filed a legal plea under the Indian Trade Marks Act, 1999, seeking the cancellation of Khan's trademark. She argued that she had been using the name "Dolma" first and had established a strong connection between the name and her business.
The case was initially filed before the Intellectual Property Appellate Board (IPAB) in 2021. However, following the IPAD's dissolution, it was transferred to the Delhi High Court.
During the court proceedings, Mohd Akram Khan did not appear to defend his trademark, leading to ex-parte proceedings. The court found no rebuttal to Dolma Tsering's claims of non-use by Khan, strengthening her case.
Ultimately, the Delhi High Court ruled in favour of Dolma Tsering, ordering the cancellation and removal of Mohd Akram Khan's trademark from the Trade Marks Register. This victory reaffirmed Dolma Tsering's rights over the name "Dolma" and upheld the legacy of Dolma Aunty Momos in the face of trademark infringement.
The case highlighted the importance of protecting established brand identities and the principle of prior use in trademark law, particularly for small businesses and individual entrepreneurs like Dolma Aunty Momos.
Legal Grounds for Dolma Aunty Momos Judgement 
The Delhi High Court's judgement in favour of Dolma Aunty Momos was based on several legal grounds:

Prior and Continuous Use: Dolma Tsering, the proprietor of Dolma Aunty Momos, established that she had been using the name "Dolma Aunty Momos" extensively since 1994. Despite not having formal trademark registration, Dolma Tsering demonstrated prior and continuous use of the name in connection with her momo stall. This prior and continuous use played a crucial role in establishing her rights over the trademark.

Trademark Infringement: The court recognized that Mohd Akram Khan's registration of the trademark "Dolma" without authorization constituted trademark infringement. By registering a similar trademark that closely resembled Dolma Aunty Momos' established brand identity, Khan had attempted to capitalise on the goodwill and reputation associated with Dolma Tsering's business.

Absence of Rebuttal: During the legal proceedings, Mohd Akram Khan, the respondent in the case, did not appear to defend his trademark. This absence of rebuttal allowed the court to consider Dolma Tsering's claims uncontested, strengthening her case for the trademark cancellation of Mohd Akram Khan.

Legal Principles: The judgement reaffirmed important legal principles under the Indian Trade Marks Act, 1999. It emphasised the significance of prior use and established brand identities in trademark law, highlighting the trademark protection afforded to businesses like Dolma Aunty Momos, even in the absence of formal registration.

Can you protect your mark without Trademark Registration in India? 
In India, it is possible to protect a trademark without formal registration through the principle of "prior use," as recognized under trademark law. The principle of prior use establishes that the party who first uses a trademark in commerce generally has superior rights to the mark over subsequent users, regardless of formal trademark  registration.
This principle was affirmed in the case of Cadila Health Care Ltd. v. Cadila Pharmaceuticals Ltd. (2001), where the Supreme Court of India held that prior use of a trademark can establish ownership rights, even without registration. The Court emphasised the importance of actual use in the marketplace as a fundamental aspect of trademark rights.
Additionally, Section 27 of the Trade Marks Act, 1999, recognizes trademark rights by stating that the registration of trademark shall not confer any better rights than those which existed before the registration. This provision underscores the significance of prior use in establishing trademark rights.
Therefore, while formal registration of a trademark provides statutory rights and enhanced legal protection, trademark rights derived from prior use can also offer significant protection against infringement and unauthorised use by others. Establishing prior use through evidence of actual use in commerce can serve as a strong basis for asserting trademark rights and preventing others from using similar marks.
However, it's important to note that trademark rights are generally limited to the geographical area where the mark has been used and may not offer the same level of protection as registered trademarks. Therefore, obtaining trademark registration in India is advisable to strengthen your legal position and enjoy exclusive and complete protection under the law.
What is Section 27 of the Trade Marks Act, 1999? 
Section 27 of the Trade Marks Act, 1999, outlines the rights granted upon trademark registration and preserves pre-existing rights. According to this section, registering a trademark provides the trademark owner with exclusive rights to use it for specific goods or services. This ensures legal protection and sole usage rights for the trademark holder. However, importantly, Section 27 also respects rights that existed before registration. It explicitly states that registration does not diminish any prior rights associated with the trademark. This safeguards individuals or businesses who established rights through prior use of the trademark. Essentially, Section 27 maintains a balance, allowing registered trademark owners and prior users to coexist. It highlights the importance of prior use in trademark rights and establishes a framework for fair ownership and usage of trademarks. 
How To Protect Your Mark if it is not Registered? 
Are you wondering what to do if your mark isn't registered? Maybe you're asking yourself, "Can I file a case if my mark is not registered?" or "What should I do if someone is using my mark without permission?" Don't worry, there are steps you can take to protect your mark even without registration.
Firstly, establish your prior use of the mark. This means showing that you've been using the mark in business before others. Keep records of when and how you've used the mark, like dates of first use and any advertising materials.
Next, maintain evidence of your use. Save copies of advertisements, packaging, and invoices that feature your mark. This documentation will be crucial if you ever need to prove your rights to the mark.
Stay alert for any unauthorised use of your mark by competitors or others. Regularly search for similar marks being used in the marketplace, both online and offline. If you find any similar trademark, take action to address them with the help of a trademark attorney. Remember, trademark law can also protect your unregistered mark based on prior use. Asserting these rights can stop others from using or registering similar marks and establish your rights in legal disputes.
While registration isn't mandatory, it does provide additional legal benefits. If your mark is important to your business, consider applying for trademark registration in India with the trademark registry. 
HOW CAN COMPLIANCE CALENDAR HELP? 
Looking to secure your brand's identity? Look no further than Compliance Calendar! We're your one-stop solution for all trademark needs. Whether you're seeking to register a new trademark or stuck in a complex trademark procedure, our dedicated team is here to assist you every step of the way.
With Compliance Calendar, you'll not only get expert guidance on registering your trademark but also comprehensive protection throughout the entire process. Our experienced professionals will ensure that your mark is not only registered but also safeguarded against potential infringements at all stages of trademark registration.
Why choose Compliance Calendar? We offer personalised and attentive service, tailored to your specific needs and goals. Our commitment to client satisfaction means you can trust us to handle your trademark matters with efficiency, accuracy, and professionalism.
Ready to take the next step in protecting your brand? Connect with us today at 9988424211 or email us at info@ccoffice.in. Let Compliance Calendar be your trusted partner in trademark registration and protection. 
FREQUENTLY ASKED QUESTIONS:
Can I protect my brand without trademark registration?

Yes, you can protect your brand through common law rights based on prior use. Establishing prior use and maintaining evidence of it can help protect your mark even without formal registration.

What should I do if someone is using my trademark without permission?

If someone is using your trademark without authorization, you can take legal action against them for trademark infringement. You may send them a cease-and-desist letter or pursue legal remedies to protect your rights.

Is it necessary to register my trademark to protect it?

While registration provides additional legal benefits and protections, it's not mandatory to protect your trademark. Prior use and common law rights can also offer significant protection against infringement.

How can I prove prior use of my trademark?

You can prove prior use through evidence such as sales records, advertising materials, packaging, and any other documentation that shows your trademark being used in commerce before others.

What are the benefits of trademark registration?

Trademark registration provides exclusive rights to use the mark in connection with specific goods or services, legal presumption of ownership and validity, and the ability to enforce rights in court.

Can I register a trademark that is similar to an existing one?

It's generally advisable to avoid registering a trademark that is confusingly similar to an existing one, as it may lead to legal disputes. Conducting a thorough trademark search before registration can help identify potential conflicts.

How long does trademark registration last?

Trademark registration is typically valid for ten years, after which it can be renewed indefinitely as long as the mark continues to be used in commerce.

What happens if my trademark registration is refused?

If your trademark registration is refused, you have the option to appeal the decision or amend the application to address any objections raised by the trademark office.

We all love momos, right?

If you love momos, you must have heard the name of "Dolma Aunty Momos".

This beloved South Delhi food stall has been serving up Tibetan delicacies, particularly its signature momos, since 1994. Founded by Dolma Tsering, a Tibetan refugee who found her way to Delhi, Dolma Aunty Momos quickly became a household name in the bustling streets of Lajpat Nagar. With its humble beginnings and dedication to quality and tradition, Dolma Aunty Momos garnered a loyal following over the years, drawing locals and visitors alike to savour its mouthwatering offerings. However, the legacy of Dolma Aunty Momos faced a challenge when an unauthorised individual, Mohd Akram Khan, attempted to capitalise on the brand's success by registering a similar trademark without authorization. This started a legal trademark case between Dolma Tsering and Mohd Akram Khan, in a landmark trademark victory for Dolma Aunty Momos in the Delhi High Court. This case highlights the importance of protecting small businesses and individual entrepreneurs against trademark infringement, reaffirming the legal right of prior use and established brand identities in the Indian trademark law.

Dolma Aunty Case Background

Dolma Aunty Momos, a beloved momo stall in South Delhi, owned by Dolma Tsering, faced a trademark dispute with an individual named Mohd Akram Khan. Dolma Aunty Momos had been operating since 1994 and had gained significant popularity for its delicious Tibetan delicacies, particularly momos.

The dispute arose when Dolma Tsering discovered that Mohd Akram Khan had registered a similar trademark, "Dolma," without authorization. Although Dolma Tsering had not officially registered her trademark, she had been using the name extensively, and it had become strongly associated with her stall.

To protect her business and its reputation, Dolma Tsering filed a legal plea under the Indian Trade Marks Act, 1999, seeking the cancellation of Khan's trademark. She argued that she had been using the name "Dolma" first and had established a strong connection between the name and her business.

The case was initially filed before the Intellectual Property Appellate Board (IPAB) in 2021. However, following the IPAD's dissolution, it was transferred to the Delhi High Court.

During the court proceedings, Mohd Akram Khan did not appear to defend his trademark, leading to ex-parte proceedings. The court found no rebuttal to Dolma Tsering's claims of non-use by Khan, strengthening her case.

Ultimately, the Delhi High Court ruled in favour of Dolma Tsering, ordering the cancellation and removal of Mohd Akram Khan's trademark from the Trade Marks Register. This victory reaffirmed Dolma Tsering's rights over the name "Dolma" and upheld the legacy of Dolma Aunty Momos in the face of trademark infringement.

The case highlighted the importance of protecting established brand identities and the principle of prior use in trademark law, particularly for small businesses and individual entrepreneurs like Dolma Aunty Momos.

Legal Grounds for Dolma Aunty Momos Judgement

The Delhi High Court's judgement in favour of Dolma Aunty Momos was based on several legal grounds:

Prior and Continuous Use: Dolma Tsering, the proprietor of Dolma Aunty Momos, established that she had been using the name "Dolma Aunty Momos" extensively since 1994. Despite not having formal trademark registration, Dolma Tsering demonstrated prior and continuous use of the name in connection with her momo stall. This prior and continuous use played a crucial role in establishing her rights over the trademark.
Trademark Infringement: The court recognized that Mohd Akram Khan's registration of the trademark "Dolma" without authorization constituted trademark infringement. By registering a similar trademark that closely resembled Dolma Aunty Momos' established brand identity, Khan had attempted to capitalise on the goodwill and reputation associated with Dolma Tsering's business.
Absence of Rebuttal: During the legal proceedings, Mohd Akram Khan, the respondent in the case, did not appear to defend his trademark. This absence of rebuttal allowed the court to consider Dolma Tsering's claims uncontested, strengthening her case for the trademark cancellation of Mohd Akram Khan.
Legal Principles: The judgement reaffirmed important legal principles under the Indian Trade Marks Act, 1999. It emphasised the significance of prior use and established brand identities in trademark law, highlighting the trademark protection afforded to businesses like Dolma Aunty Momos, even in the absence of formal registration.

Can you protect your mark without Trademark Registration in India?

In India, it is possible to protect a trademark without formal registration through the principle of "prior use," as recognized under trademark law. The principle of prior use establishes that the party who first uses a trademark in commerce generally has superior rights to the mark over subsequent users, regardless of formal trademark registration.

This principle was affirmed in the case of Cadila Health Care Ltd. v. Cadila Pharmaceuticals Ltd. (2001), where the Supreme Court of India held that prior use of a trademark can establish ownership rights, even without registration. The Court emphasised the importance of actual use in the marketplace as a fundamental aspect of trademark rights.

Additionally, Section 27 of the Trade Marks Act, 1999, recognizes trademark rights by stating that the registration of trademark shall not confer any better rights than those which existed before the registration. This provision underscores the significance of prior use in establishing trademark rights.

Therefore, while formal registration of a trademark provides statutory rights and enhanced legal protection, trademark rights derived from prior use can also offer significant protection against infringement and unauthorised use by others. Establishing prior use through evidence of actual use in commerce can serve as a strong basis for asserting trademark rights and preventing others from using similar marks.

However, it's important to note that trademark rights are generally limited to the geographical area where the mark has been used and may not offer the same level of protection as registered trademarks. Therefore, obtaining trademark registration in India is advisable to strengthen your legal position and enjoy exclusive and complete protection under the law.

What is Section 27 of the Trade Marks Act, 1999?

Section 27 of the Trade Marks Act, 1999, outlines the rights granted upon trademark registration and preserves pre-existing rights. According to this section, registering a trademark provides the trademark owner with exclusive rights to use it for specific goods or services. This ensures legal protection and sole usage rights for the trademark holder. However, importantly, Section 27 also respects rights that existed before registration. It explicitly states that registration does not diminish any prior rights associated with the trademark. This safeguards individuals or businesses who established rights through prior use of the trademark. Essentially, Section 27 maintains a balance, allowing registered trademark owners and prior users to coexist. It highlights the importance of prior use in trademark rights and establishes a framework for fair ownership and usage of trademarks.

How To Protect Your Mark if it is not Registered?

Are you wondering what to do if your mark isn't registered? Maybe you're asking yourself, "Can I file a case if my mark is not registered?" or "What should I do if someone is using my mark without permission?" Don't worry, there are steps you can take to protect your mark even without registration.

Firstly, establish your prior use of the mark. This means showing that you've been using the mark in business before others. Keep records of when and how you've used the mark, like dates of first use and any advertising materials.

Next, maintain evidence of your use. Save copies of advertisements, packaging, and invoices that feature your mark. This documentation will be crucial if you ever need to prove your rights to the mark.

Stay alert for any unauthorised use of your mark by competitors or others. Regularly search for similar marks being used in the marketplace, both online and offline. If you find any similar trademark, take action to address them with the help of a trademark attorney. Remember, trademark law can also protect your unregistered mark based on prior use. Asserting these rights can stop others from using or registering similar marks and establish your rights in legal disputes.

While registration isn't mandatory, it does provide additional legal benefits. If your mark is important to your business, consider applying for trademark registration in India with the trademark registry.

HOW CAN COMPLIANCE CALENDAR HELP?

Looking to secure your brand's identity? Look no further than Compliance Calendar! We're your one-stop solution for all trademark needs. Whether you're seeking to register a new trademark or stuck in a complex trademark procedure, our dedicated team is here to assist you every step of the way.

With Compliance Calendar, you'll not only get expert guidance on registering your trademark but also comprehensive protection throughout the entire process. Our experienced professionals will ensure that your mark is not only registered but also safeguarded against potential infringements at all stages of trademark registration.

Why choose Compliance Calendar? We offer personalised and attentive service, tailored to your specific needs and goals. Our commitment to client satisfaction means you can trust us to handle your trademark matters with efficiency, accuracy, and professionalism.

Ready to take the next step in protecting your brand? Connect with us today at 9988424211 or email us at info@ccoffice.in. Let Compliance Calendar be your trusted partner in trademark registration and protection.

FREQUENTLY ASKED QUESTIONS:

Can I protect my brand without trademark registration?

Yes, you can protect your brand through common law rights based on prior use. Establishing prior use and maintaining evidence of it can help protect your mark even without formal registration.