15 July 2019


Judgments

High Court of Bombay

Ramesh Khatanmal Lulla Vs. Mohammad Yusuf Abdul Gaffar

MANU/MH/0422/2018

09.03.2018

Intellectual Property Rights

Likelihood of loss follows when Plaintiff can show a strong prima facie case of infringement of its registered trade mark, no evidence of actual loss is required

By instant appeal, the original Defendant has challenged order passed by the Court below, whereby an application for temporary injunction filed by the Respondent-original Plaintiff has been allowed and the Appellant has been temporarily restrained from manufacturing, trading, offering or dealing in the product "Fafda Powder" under the name of "New Gai Chhap", which is found to be deceptively similar to the registered trade mark "Gai Chhap" of the Respondent pertaining to the same product, till the decision of the main suit. The question that arises for consideration in the present appeal is, as to whether the order of temporary injunction granted by the Court below was justified and whether the parameters for grant of temporary injunction, in cases where infringement of registered trade mark was alleged by the Plaintiff, were satisfied in the present case.

When the Plaintiff alleges infringement of registered trade mark and is able to show that, the defendant is using a mark that is identical or similar to the registered trade mark and that it is a colourable use, irreparable loss can be presumed to have taken place and it would be enough to show the loss or injury that the plaintiff is likely to suffer. Apart from this, the Plaintiff has to establish comparative strength of its case in order to successfully claim an order of grant of temporary injunction. In order to reach a finding, the Court also has to examine whether the mark of the Defendant is identical to that of the registered trade mark or it can be said to be deceptively similar as defined by Section 2(h) of the Trade Marks Act, 1999 and in arriving at a finding on the same, the Court has to see whether a customer of average intelligence and imperfect recollection would be misled by the mark of the Defendant and confuse it with the registered trade mark of the plaintiff due to overall similarity in the essential features with the registered trade mark.

The registered trade mark of the Respondent shows that, there is a picture of cow and words "Gai Chhap, Akola", written above the picture of the cow and the words "Fafda Powder" are written below the picture of the cow. Thereafter, below the words "Fafda Powder", details about the packing, net weight and price etc. of the product is given and at the bottom is the name of the manufacturer. The mark of the Appellant shows that, a picture of the cow and the positioning of the words "New Gai Chhap", "Fafda Powder" and other details as also the name of the manufacturer are in the same position as that of the registered trade mark of the respondent. Only the word "Akola" is on the right hand side of the picture of cow while in the registered trade mark of the respondent, the said word is in the middle, just above the picture of cow. The colour of the pattern on the picture of cow in the mark of the appellant is identical to that of the respondent. The word "new" is written in smaller font on the left side of the words "Gai Chhap" in the mark of the Appellant. Comparing the two marks as a whole, prima facie, the impression gathered is that, essential features of the registered trade mark of the Respondent have been identically shown in the mark of the appellant and that there seems to be over all similarity in the two. It is likely to create confusion and prima facie appears to be deceptive in its similarity.

Once the Court prima facie comes to the conclusion that, the Respondent-Plaintiff has been able to show over all similarity and copying of essential features of the registered trade mark, the irreparable loss or injury in the absence of an order of temporary injunction has to be presumed. It has been held in the case of Balsara Hygiene Products Ltd. that, no evidence of actual loss is required in such cases. In fact, the likelihood of loss follows when the plaintiff is able to show a strong prima facie case of infringement of its registered trade mark by the Defendant. The balance of convenience clearly lies in favour of the Respondent-Plaintiff in the facts and circumstances of the present case.

In the present case, the Respondent-Plaintiff has placed on record material to show that, it has been using its mark since the year 1995 and that the Registrar of Trade Marks has granted certificate of registration on 16th February, 2015. Another significant aspect of present case is that the mark of the Respondent is registered in respect of the product of "Fafda Powder" and that the Appellant is selling the same product by using its mark. This shows that, the comparative strength of the case of the Respondent is much higher than that of the Appellant in the context of grant of an order of temporary injunction.

The findings rendered by the Court below cannot be said to be perverse and it cannot be said that, the discretion exercised was arbitrary, capricious or perverse. The scope of interference in the discretion exercised by the Court below is very limited. The Appellant has not been able to make out a case for exercise of such jurisdiction by this Court in his favour. The Appellant has failed to make out any ground for interference with the impugned order passed by the Court below. Accordingly, this appeal is dismissed.

Relevant

Balsara Hygiene Products Ltd. vs. Brighto Chemical Industrial MANU/MH/0074/1996

Tags : Injunction Grant Validity

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