Delhi High Court allows Vistara Airlines to use ‘Fly Higher’
The words’ Fly Higher’ by Vistara Airlines, a JV company formed by Singapore Airlines and Tata Sons Private Limited trading as Tata Sia Airlines Ltd (Tata), is objected to by Frankfinn Aviation Services Private Limited (Frankfinn). Frankfinn alleges trademark infringement, passing off, unfair competition, etc,. and seeks to restrain Tata from using the words ‘Fly Higher’ concerning their business claiming prior rights in the mark ‘Fly High’ Tata challenged the ex-parte ad-interim injunction granted in favour of Frankfinn. This note discusses the contentions raised by the parties and the order setting aside the injunction.
Frankfinn, in the suit, stated:
- They are the original adopter and users of the trademark ‘FLY HIGH’ adopted in 2004. The mark is continuously and extensively used for imparting training in hospitality, aviation, travel management, and customer services.
- They are the registered proprietor of the trademark ‘FLY HIGH’ in India in different forms in various classes.
- They filed the suit on seeing Tata, which operates its full-service airline under the trademark VISTARA, launch an advertisement campaign on various online platforms and social media websites to promote its services under the mark ‘FLY HIGHER’.
- Tata has copied Frankfinn’s registered trademark ‘FLY HIGH’ and is using the same for allied and cognate services. Confusion among the trade and public is inevitable as the parties are dealing in the same sector, i.e., aviation.
Tata sought to set aside the ad- interim injunction on the following among other grounds:
- Frankfinn and Tata operate in different fields, i.e., educational training and the airline industry. Tata operates a full-service airline under the name/mark VISTARA and the phrase ‘FLY HIGHER’ describes the airline’s services.
- Tata is using ‘FLY HIGHER’ in conjunction with its well-known trademark ‘VISTARA’ for marketing and promotion of its airline business and no goods/services are sold/provided under the said phrase.
- Frankfinn does not have registration in the relevant classes pertaining to airline industry, and their activities are restricted to educational services through its training academy. In contrast, Tata uses the phrase ‘FLY HIGHER’ as part of an advertising campaign to describe and promote the services offered.
- ‘FLY HIGH’ is a dictionary term and connotes ‘the level up’ or ‘the pursuit of higher success.’ The phrase ‘FLY HIGH’ and its variations ‘FLY HIGHER’/HIGH FLY’ etc., are commonly used in the airline sector. ‘FLY HIGHER’, being a laudatory phrase used in conjunction with its trademark does not infringe Frankfinn’s rights in the ‘FLY HIGH’ trademark. Tata, in the advertisement campaign prominently uses the well-known and registered trademark VISTARA and its logo which itself defies any intent to misrepresent, thus, no passing off is made out.
- Frankfinn has obtained registration in class 41 with a condition that it shall give no right to exclusive use of the word ‘HIGH’ which has been supressed in the plaint. There is delay in filing the suit as Tata started its advertising campaign in the year 2018.
- The primary question that arises for consideration is whether Frankfinn’s registration for the ‘FLY HIGH’ mark entitles them to prevent Tata from using the mark ‘FLY HIGHER’ in relation to their business. This assumes significance considering the specific defence set up by Tata that it is not using ‘FLY HIGHER’ as a trademark and the services dealt with by the parties differ.
- Admittedly, Tata is using the phrase ‘FLY HIGHER’ in conjunction with its well-known trademark VISTARA and logo . It is judicially settled that when a party adopts a descriptive and laudatory expression it must be prepared to tolerate some degree of confusion owing to widespread use of such trademark by fellow competitors which is inevitable. In the instant case Tata is using the phrase ‘FLY HIGHER’ in conjunction with its well-known mark for advertising and promoting its scheduled airline operations and is not used as a trademark.
- Documents on record evidence that the phrase ‘Fly High’ and its variants, such as ‘Fly Higher/High Fly’ etc., are commonly used to describe the success of players in the airlines industry. The term ‘Fly High’ is demonstrably common to aviation sector which is exemplified by the Master Data of over 20 registered companies incorporating the phrase ‘Fly High/High Flyer/High Flyers’. In this regard it is to be noted that Frankfinn’s mark ‘FLY HIGH’ proceeded to registration in class 41 with the condition that the proprietor shall have no exclusive right to use the word ‘HIGH’, which has not been disclosed in the plaint. Tata does not use the term ‘Fly Higher’ as a trademark, so the argument regarding trademark infringement will not succeed.
- There is also force in the argument that the parties deal in different fields. Tata operates a full-service airline under its well-known trademark VISTARA, while Frankfinn runs a training Institute under the FRANKFINN mark. Though there is an element of training that Tata imparts, however, it is confined to technical training to the cabin crew personnel. Thus, Frankfinn cannot succeed in its argument that the services offered by Tata are allied and cognate on all the parameters laid down, i.e., user, nature of services, trade channels, etc,.
- Tata has filed documents which evidence that ‘FLY HIGH’ is widely used, both in the airline sector and concerning coaching institutes about the aviation sector, including travel and tourism. This in turn supports the argument that Tata’s intended use is descriptive of its services and for the purpose of promotion and advertisement.
- Considering Tata’s reputation and goodwill, they do not need to encash on Frankfinn’s to operate its airlines. Moreover, the manner in which the phrase ‘FLY HIGHER’ is being used by Tata does not appear to be with an intent to misrepresent or confuse members of the public. Prominent use of the well-known trademark ‘VISTARA’ in conjunction with the phrase ‘FLY HIGHER’ further defies any fraudulent intent. Hence, no passing off claim is also made out.
In light of the above findings, the Court set aside the ex-parte injunction granted against Tata.