A registered trademark does not stop others using the same words descriptively. When Vistara used “Fly Higher” in a campaign, the Delhi High Court held it wasn’t using it as a trademark — so there was no infringement of Frankfinn’s registered “Fly High.”
The dispute
Frankfinn Aviation Services — using “Fly High” since 2004 for aviation/hospitality training institutes (Classes 16, 41) — sued Tata SIA Airlines (Vistara) over “Fly Higher” in promotional campaigns, and obtained an ex-parte interim injunction (Jan 2022). On 28 October 2022, Justice Jyoti Singh vacated it.
The competing positions
- Frankfinn: original adopter, prior user and registered proprietor since 2004, with acquired goodwill; “Fly High” is not generic; the defendant used it for cognate aviation services, risking confusion (including hashtags).
- Vistara: different fields (training vs airline); “Fly Higher” is descriptive of airline services and used with Vistara branding, not as a standalone mark; different classes (12, 39); “Fly High” is laudatory/dictionary; and Frankfinn approached the court belatedly (campaign since 2018).
The court’s analysis
Mark vs trademark. The court stressed the statutory distinction: a trademark is a source identifier — “intangible assets… which serve as ‘source identifiers’, instantly connecting the goods/services with the proprietor” — whereas a mark used as a mere device or label that does not identify source is not a trademark use.
Descriptive-use doctrine. Following Cadila Healthcare v. Gujarat Co-operative Milk Marketing Federation, the court held that even a mark with secondary meaning does not let the owner stop others using the expression to describe the characteristics of their products — “where the Defendant uses the expression only in a descriptive sense and not as a trademark.”
Conclusion. Vistara was not using “Fly Higher” as a trademark — so no infringement. On passing off, Frankfinn failed to show its reputation was harmed; given Vistara’s own established reputation, it had no need to trade on Frankfinn’s goodwill. On confusion, the different services, channels and customers made the parties’ offerings “separate and distinct.” The injunction was vacated. (The court did not decide whether hashtag use can be trademark use.)
The takeaways
- Not every use of your words is trademark use. A competitor using the phrase descriptively, alongside its own brand, may not infringe.
- Laudatory/descriptive phrases are weak. “Fly High” is exactly the kind of aspirational phrase others can use descriptively.
- Different fields, channels and buyers cut against confusion — echoing target-customer reasoning.
- Don’t delay. Belated action (here, a campaign running since 2018) weakens an injunction request.
Frequently asked questions
Does a registered trademark stop others using the same words? Not where they use the words descriptively rather than as a source-identifying trademark — as with Vistara’s “Fly Higher.”
What is the mark-vs-trademark distinction? A trademark identifies the source of goods/services; a mark that is merely a descriptive device or label, not identifying source, is not trademark use.
What is the descriptive-use defence? Even a mark with secondary meaning cannot prevent others describing the characteristics of their own products with the expression, if used descriptively and not as a trademark.
Why did passing off also fail? Frankfinn did not show harm to its reputation, and Vistara — with its own strong reputation — had no need to exploit Frankfinn’s goodwill.
Legislation referred to
- The Trade Marks Act, 1999