Trademark infringement suit | Tata has a stellar reputation: HC allows ‘Fly Higher’ in Vistara ads

A single judge bench of Justice Jyoti Singh was hearing an application seeking vacation of the ‘ex-parte ad interim injunction’ order passed on January 21 by the HC restraining Vistara from using the words ‘Fly High’, which is a trademark of Frankfinn Aviation Services Limited.

Frankfinn had also filed a suit “permanently restraining” Tata’s Vistara from using its trademark ‘Fly High’.

The HC noted that there is a clear distinction in the Trade Marks Act between marks and trademark. “Trademarks are intangible assets of the proprietors, which serve as ‘source identifiers’, instantly connecting the goods/ services with the proprietor thereof,” the court stated.

In the order dated October 28, Justice Singh said there was prima facie merit in Tata’s submission that the term ‘Fly High’ “is demonstrably common to the aviation sector”.

“On a perusal of the documents, this Court finds prima facie merit in the submission of the Defendant (Tata) that the term FLY HIGH is demonstrably common to Aviation sector and this is fortified by the Master Data of over 20 registered companies, incorporating the phrase FLY HIGH/HIGH FLYER/HIGH FLYERS, which continue to be active and have not been struck off from the Register of Companies. Defendant has also placed on record copies of extracts of online records of the Trade Marks Registry showing registrations/pending applications for the mark FLY HIGH/HIGH FLYER,” the HC held.

Tata SIA Airlines Limited had used the term ‘Fly Higher’ in addition to its tagline ‘Fly the new feeling’ as part of its new marketing campaign in 2018.

Aviation training institute Franfinn moved HC alleging the airline had in a “brazen and blatant manner copied” its registered trademark ‘Fly High’ and was using it in allied services.

The main matter is listed for January 13, 2023 before the joint registrar.

While seeking removal of the interim restrictions, Tata had argued that the words ‘Fly Higher’ are used as a descriptor for its well-known trademark ‘Vistara’ and solely for marketing and promotion of its airline business.

Tata argued that ‘Fly Higher’ does not serve as a source identifier to distinguish its goods and services from its competitors, and cannot be termed as a trademark, as defined under the Act.

After perusing screenshots of Tata’s social media posts as well as its advertisements, online and in print media, the HC agreed with Tata’s contentions that it was not using the phrase ‘Fly Higher’ as a trademark.

The court also agreed with Tata’s argument that Tata and Frankfinn operate in entirely different industries.

The HC further noted that Frankfinn did not place on record to show that it has the goodwill or reputation in the services offered by the airline. The HC observed that Frankfinn’s target audience are people seeking soft skills training in the travel, tourism, hotel management and the aviation sector while Tata’s customers comprise travellers who choose to fly with Vistara Airlines.

The HC held that it is difficult to believe that someone intending to travel with the airline would do so keeping in mind the “alleged popularity of the FLY HIGH mark” of the Frankfinn.

It said Tata had a “stellar reputation” and did not “need to encash” on the aviation institute’s reputation to operate its airlines.

“Defendant’s (Tata) customers, as rightly pointed out, comprise well-informed discerning people, who would not choose to travel in Vistara airlines, based on plaintiff’s repute in the training Institute,” the HC held.