In an infringement suit, Hermès asked the Delhi High Court to declare its “H” device a well-known trademark — and won. Here’s the evidence it marshalled across the statutory factors, and its sharp point about whose recognition counts.
The case
In Hermès International & Anr v. Crimzon Fashion Accessories Private Limited (2023/DHC/000961), one of Hermès’ prayers was a declaration that its mark is well-known within Section 2(1)(zg) of the Trade Marks Act, 1999.
The Section 11(6) factors
The law lists five factors for well-known status under Section 11(6):
- knowledge/recognition of the mark among the relevant public (including from promotion);
- the duration, extent and geographical area of any use;
- the duration, extent and geographical area of any promotion (advertising, publicity, fairs/exhibitions);
- the duration and geographical area of any registration/application (to the extent reflecting use/recognition); and
- the record of successful enforcement, especially recognition as well-known by any court/Registrar.
Hermès’ evidence
Hermès addressed each factor:
- products bearing the mark displayed at Mumbai and Delhi stores, generating revenue, with articles/reviews in Vogue, Harper’s Bazaar and other magazines;
- the mark coined in 1997, in continuous use since, with events in India showcasing the products and celebrity use;
- extensive promotion since 1997 — international magazines, websites, catalogues, in-store advertising;
- registration in India and over 93 countries (France, Canada, Switzerland, Singapore, Australia, UAE, etc.); and
- active enforcement — injunctions before German courts and undertakings from third parties.
The “relevant public” argument
Hermès made a notable submission: the “relevant section of the public” under Sections 11(6)(i) and 11(7) should be assessed against the public the goods target — here, the fashion industry — not the general public. That aligns well-known status with the mark’s actual market.
The ruling
The court was convinced the five factors and knowledge among the relevant public were satisfied, and accordingly declared the “H” device a well-known trademark under Section 2(1)(zg).
The takeaways
- Well-known status turns on the Section 11(6) factors — recognition, use, promotion, registration, enforcement.
- Build the evidence across all factors — Hermès documented each thoroughly.
- “Relevant public” can be the target market — assessed vis-à-vis the fashion industry here.
- Multi-country registration and enforcement help — 93+ countries plus active enforcement.
Frequently asked questions
How did Hermès get well-known status for its ‘H’ device? By satisfying the Section 11(6) factors with evidence of recognition, long use since 1997, extensive promotion, registration in 93+ countries, and active enforcement — leading the Delhi HC to declare the mark well-known.
What are the Section 11(6) factors? Knowledge/recognition among the relevant public, the extent and duration of use, the extent and duration of promotion, the registration record, and the record of successful enforcement.
Who is the “relevant section of the public”? Hermès argued — and the court accepted — it should be assessed against the target market for the goods, here the fashion industry, not the general public.
What does well-known status give a brand? Broader protection, including against identical or similar marks across dissimilar goods, protecting the brand’s goodwill.
Legislation referred to
- The Trade Marks Act, 1999