Dumplings of Delight: Famous ‘Dolma’ Aunty wins trade mark battle over her iconic momos’ joint name

Registration of a Trade Mark: Importance and Effects

In India, trademarks and its registrations are governed by the Trade Marks Act, 1999 (hereinafter “Trade Marks Act”). The Trade Marks Act guarantees protection for trademarks registered with the Controller General of Patents, Designs, and Trade Marks (CGPDTM), also known as the Trade Marks Registry.

A trademark is a symbol, design, word, or phrase capable of identifying the goods or services of one business from those of others. When a trademark is registered, the owner to the trademark gains “exclusive rights” to its usage.

According to Section 25 of the Trade Marks Act, a trademark remains valid for a period of 10 years after it is registered and the owner may renew the trademark periodically.

It is considered a violation or infringement of trademark to use someone else’s registered trademark without their permission Additionally, using a substantially similar mark for similar goods or services without consent is also deemed as trademark infringement.

In India, trademarks play a pivotal role in the food and beverage industry, contributing significantly to its growth and evolution. A registered trademark stands as a cornerstone for any food company or business within this sector. Registering a trademark enables a food product to carve out its unique identity amidst similar offerings, thereby enhancing its reputation and competitiveness.

Critical Analysis of the Judgement

In a recent landmark judgment in the case of Dolma Tsering v. Mohd. Akram Khan and Another, the Delhi High Court has made a significant ruling in favour of preserving the legacy of ‘Dolma Aunty’ Momos. The court has taken a firm stance by cancelling and removing an individual’s adoption of the registered trademark ‘DOLMA AUNTY MOMOS’. This decision follows a rectification petition filed by the renowned ‘Dolma Aunty’ Momos herself on 24^th September 2018, i.e. in the rectification proceedings titled ‘Dolma Tsering v. Mohd. Akram Khan and Anr.’ The objective of the petition was to challenge and invalidate the ‘Dolma’ mark obtained by Mohd. Akram Khan.

The judgement revolves around Dolma Tsering, the proprietor of Dolma Aunty Momos, who initiated a legal action against Mohd. Akram Khan. She encountered unauthorized use of her trade name by individuals selling identical products. The matter was initially brought before the Intellectual Property Appellate Board (“IPAB”) in 2021. However, with the dissolution of the IPAB on April 4 2021, as per the Tribunal Reforms Act, 2021, the jurisdiction was transferred to the High Courts, leading to the case being heard by the Delhi High Court.

Dolma Tsering had established her business, Dolma Aunty Momos, in Delhi’s Lajpat Nagar in 1994, specializing in Tibetan delicacies, particularly momos, and other products. By 2021, her business had expanded to operate five outlets across Delhi-NCR, earning a solid reputation for quality offerings and services. She successfully obtained the trademark “Dolma Aunty Momos” in 2022, which was officially granted registration on November 17 2023. She argued that Mr. Khan not only adopted a trademark identical to hers but also utilized a name resembling hers. Tsering’s Rectification Petition filed against the Respondent’s adoption of the “Dolma” mark claimed that it was a blatant imitation of her long-established trademark. She filed a case under Sections 11(1), 11(2), 11(3)(a), and 47 of the Trade Marks Act.

Based on the evidence and arguments presented before the Court and despite being served notice, the Respondent had failed to appear, resulting in the case proceeding ex-parte. On March 6 2024, the Delhi High Court ordered the cancellation and removal of respondent’s trademark “Dolma Aunty Momos” from the Trade Marks Register.

The bench of Justice Anish Dayal held, “After considering the aforementioned facts and circumstances, reviewing the documents submitted, and hearing arguments from the Petitioner’s counsel, this court finds merit in the petitioner’s case. Therefore, the trademark held by Respondent No. 1 is to be cancelled and removed from the Trade Marks Register, and accordingly, rectified”.

The court has observed that Dolma Tsering had amassed a significant reputation due to the widespread popularity of momos as a type of street food. Additionally, Tsering received numerous accolades for the exceptional quality of her goods and services. The High Court also asserted that Tsering set up a small momo shop in 1994 and was the “first retailer” of the Tibetan delicacy, which had since become popular across Delhi-NCR. Since the Respondent failed to appear before the court, the allegations of non-use by Tsering remained unchallenged and therefore had to be acknowledged as valid.

Conclusion

This case emphasizes the significance of protecting established trademarks and the legal redress accessible to trademark owners in addressing infringements by entities operating within the same industry. Although this decision is interim, it highlights the potential consequences of trademark infringement, particularly in cases involving confusion and deception.

The present article is written by our Associate, Ms. Neha Singh. The views and opinions expressed in this article are those of the authors and do not necessarily reflect the official policy or position of any agency of the Indian government. Examples of analysis performed within this article are only examples. They should not be utilized in real-world analytic products as they are based only on very limited and dated open source information. Assumptions made within the analysis are not reflective of the position of any Indian government State.