The common principle of similarity between two marks is tested on the basis of their visual, structural, phonetic and conceptual parameters. In the recent case of Shrinath Travel Agency & Anr. vs Infinity Infoway Pvt Ltd & Ors, the Court relied on the phonetical similarity between the leading and predominant features of the logo marks. It was also seen whether the class of consumers under the marks of the Plaintiffs and the Defendants were capable enough to judge the difference between the marks or whether there was a likelihood of confusion.
of the Delhi High Court decided on the issue of whether the
Plaintiffs had a prima facie case for seeking a permanent
injunction against the Defendants for using the marks
"Shrinath Tourist
Agency", "Shrinath
Nandu Travels", 
, 
, 
and 
. The factual matrix of this case was that the
Plaintiffs held valid and subsisting trademark registrations of the
mark 
in class 16 and
the marks "SHRINATH", 
, 
and 
in class 39 (hereinafter
collectively known as "Plaintiffs marks'
"). The Plaintiffs submitted that they had adopted the word
mark "SHRINATH" in the year
1978 and since then have been continuously using
the same on a pan-India basis. The Plaintiffs also submitted that
they were engaged in the business of tours and travels under the
aforementioned marks for which they submitted their sales turnover
from the year 2016-17 till 2022-23. It was noted that the sales for
the single year 2021-22 itself was INR 51,81,18,002 (USD 61,00,000
approx.). The Plaintiffs were also awarded with various awards and
accolades for their excellent services. Further, it was noted that
the Plaintiffs were granted an interim injunction by this
Hon'ble Court in Shrinath Travel Agency v. Maventech Labs
Pvt. Ltd. for violation of the aforementioned prior-registered
marks of the Plaintiffs by the Defendants in the case and for using
infringing domain names, namely www.shreenathtourandtravels.com, www.shrinathtravels.net and www.shreenathtravels.com. The Plaintiffs
alleged that Defendants 3 and 4 in the present case used their word
mark "SHRINATH" and identical logo
marks, which resulted in confusion amongst the general public.
Further, it was alleged that even though Defendant 5 was using the
infringing mark 
, the word
"SHRINATH" was not a part of its logo,
the defendant was, however, using the motif of the bus, with the
underline below the mark and the words "Travel and
Transport Agency" as well as the use of the colour
combination of red and blue similar to that of the plaintiff, which
was likely to confuse customer at least into believing an
association between the Defendants and the Plaintiffs within the
meaning of Section 29(2)(b) of the Trade Marks Act 1999. It was
further emphasized that the people who used the buses of the
Plaintiffs and the Defendants generally belonged to the
semi-literate or illiterate class, who would not be able to notice
the difference between the words SHRINATH and
HUMSAFAR and would be taken in by the overall
similar appearance by the two marks. Further, the plaintiff also
sought an injunction restraining the Defendants from using the
domain names www.ajayshreenathtravellers.com, www.shrinathnandutravels.com and www.humsafar.biz. The Defendants in the present
case neither appeared before the Court nor did they file any
response to this application seeking injunction. Thus, the Court
observed that the Plaintiffs had put forth a prima facie
case in their favour. The Court, by placing reliance on
K.R. Chinna Krishna Chettiar v. Shri Ambal &
Co., held that Defendants 3 and 4, by using the marks
, 
have infringed the plaintiff's prior-used
and prior-registered marks. This was because of the use of the
words "SHRINATH" and/or
"SHREENATH" by the Defendants, which was
identical, especially phonetically, to the plaintiff's
registered marks. This was principally in respect to the mark
"SHRINATH," for which the Plaintiffs
possessed a word mark registration, and because of which the aspect
of the likelihood of confusion stood exacerbated. Further, it was
also observed that since the Plaintiffs were continuously using
their prior registered marks, the continued use of the impugned
marks by the Defendants infringed and possibly diluted the
plaintiff's brand value. Thus, it was held that the balance of
convenience and irreparable loss lied in the favour of the
Plaintiffs for the grant of injunction. In this regard, the Court
directed the Defendants to remove the use of the impugned marks
from all their virtual and physical sites, including their social
media. However, as far as the mark 
of Defendant 5 was concerned, it was held that
the predominant and the leading feature of the mark was the word
"HUMSAFAR" and the same has no
similarity with the word "SHRINATH".
Further, the Court also held that the mere fact that both the marks
incorporated the figure of a bus and a line drawn below the name,
with "Travel and Transport Agency" printed below the line
in the case of Defendant 5 and "Travel Agency" printed
below the line in the case of the Plaintiffs, could not make out a
case of deceptive similarity as the same was not unique to either
of them. In view of the above, it was held that the mark of defendant 5 and the domain name www.humsafar.biz, did not infringe the
plaintiff's marks'. Thus, the Court awarded an injunction
in favour of the Plaintiff against Defendants 3 and 4 and directed
Defendants 6 and 7 to block the domain names www.shrinathnandutravels.com and www.ajayshreenathtravellers.com pending
disposal of the present suit.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
