Shalini Phansalkar Joshi JUDGMENT
Dr. Shalini Phansalkar Joshi, J.
1. Heard Mr. Shah, learned counsel for the Appellant, and Mr. Poojari, learned counsel for the Respondent.
2. This Appeal is directed against the order dated 9th January, 2017, passed by the District Judge-19, Pune on the application for temporary injunction filed at 'Exhibit-5' in Civil Suit No. 14 of 2014.
3. The said application was preferred by the Respondent herein, restraining the Appellant, during the pendency of the Suit, from using the trade name "Spring Orchid", which is similar to the name of the Respondent-School "The Orchid School". The Trial Court has allowed the said application and by its impugned order, restrained the Appellant from passing off identical services of "Spring Orchid School" as those of the Respondent, by adopting and/or using the service mark "Spring Orchid" or by adopting and/or using the word "Orchid" to form any other deceptively similar or identical mark to the service mark "The Orchid School" of the Respondent in respect of the identical services relating to education and training.
4. Brief facts of the Appeal are to the effect that, Respondent is a Trust running the Educational Institution called "The Orchid School" at Baner, Pune. The said school is affiliated to Central Board of Secondary Education. It is an English medium, co-educational and inclusive school, currently operating from Junior K.G. to Standard XI, with 35 students per class; each class is having three 'Divisions' maximum per level. The number of the students is, thus, around 1, 200, with total staff of 144. The school has acquired its own reputation since it is established in the year 2004. The school has registered its service mark as "The Orchid School" by filing an application dated 5th June 2006, containing the 'user details' of the said mark as from 11th November 2004. The said application is falling in 'Class-5', pertaining to "education and training".
5. The grievance of the Respondent-School is that, the Appellant herein has made application on 7th October 2008, giving the 'user detail' as from 27th November 2007 for registration of its mark in the name of "Spring Orchid". It is the contention of the Respondent that, the word "Orchid" is the key and predominant word of the Respondent's earlier and prior used service mark, which has been adopted by the Appellant in its subsequently adopted service mark of "Spring Orchid". According to Respondent, the word "Orchid" is phonetically, visually and structurally similar in both the marks and, therefore, it is definitely likely to cause and is causing confusion in the minds of the common consumers, who are the minor students and their parents.
6. It is the case of the Respondent that, in the adoption of the subsequent service mark, the Appellant has committed an intentional misrepresentation to the Trade Mark Authorities upon the goodwill acquired by the Respondent's service mark. As a result thereof, the students and their parents are likely to fall into an error that the identical services adopted by the Appellant, are those of the Respondent. The service mark adopted by the Appellant is similar or deceptively similar or resembling service mark in relation to the services imparted by both the schools, that of training and education. The consumers for both the services are common, namely, the students and their parents. Hence, the students and their parents are availing the Appellant's identical services under the mistaken belief that such services are being provided by the Respondent.
7. It is submitted that, adoption and use of the deceptively similar mark by the Appellant is malafide, without justification, unfair and solely motivated to mislead the students and their parents. Hence, under the 'Classical Trinity Rule', that of goodwill, misrepresentation and d........