Delhi High Court: In a case wherein an appeal was filed against the order of refusal for registration of the mark “CHICKEN ZINGER” by the Senior Examiner of Trade Marks, a Single Judge Bench of Sanjeev Narula, J. held that KFC did not have any exclusive right in the word “CHICKEN” but the Trade Mark Registry could proceed for advertisement of application for the mark “CHICKEN ZINGER” in Class 29.
The present appeal under Section 91 of the Trade Marks Act, 1999, (“Act”) was filed against impugned order dated 24-12-2018 read with Statement of Grounds of Decision dated 31-12-2018, both passed by Senior Examiner of Trademarks, whereby appellant’s application for the mark “CHICKEN ZINGER” in Class 29, had been refused. The reason for refusing the registration of the mark “CHICKEN ZINGER” under Section 9(1)(b) of the Act was that the mark “CHICKEN ZINGER” was descriptive of characteristics of the goods and services to which it was applied.
The Court noted that the subject mark comprised of two words, “CHICKEN” and “ZINGER” and the dictionary meaning of “ZINGER” was “a thing outstandingly good of its kind” or “a wisecrack; punch line” or “a surprise question; an unexpected turn of events”. The Court opined that use of the word “ZINGER” in conjunction with “CHICKEN” did not draw an instant connection with the kind of goods/services and may at best, be considered suggestive.
The Court further noted that the appellant had registration of the marks “ZINGER” and “PANEER ZINGER” in Class 29 itself and objection under Section 9(1)(b) of the Act seemed to be based on the use of the word “CHICKEN”, over which, the Court held that the appellant could not have any exclusivity.
The Court allowed and disposed of the appeal with the following directions:
1. Trade mark Registry was directed to proceed for advertisement of application for the mark “CHICKEN ZINGER” in Class 29.
2. The appellant shall not have any exclusive right in the word “CHICKEN”. Trade Mark Registry shall reflect this disclaimer at the time of advertisement of subject mark “CHICKEN ZINGER” and if subject mark proceeds for registration.
[Kentucky Fried Chicken International Holdings LLC v. The Registrar of Trade Marks, 2023 SCC OnLine Del 897, Order dated 7-2-2023]
Advocates who appeared in this case :
For the Appellant: Advocate Prithvi Singh;
Advocate Rohan Krishna Seth;
For the Respondent: CGSC Harish Vaidyanathan Shankar;
Advocate Srish Kumar Mishra;
Advocate Sagar Mehlawat;
Advocate Alexander Mathai Paaikaday.
*Judgment authored by: Justice Sanjeev Narula.
*Simranjeet Kaur, Editorial Assistant has reported this brief.
