A person is said to infringe a registered Trade Mark when he uses such registered Trade Mark as his trade name or part of his trade name or name of his business concern or part of the name of his business concern dealing in goods or services in respect of which the mark is registered. It is well settled principle of law that use of part of registered trade or phonetic similarity constitute infringement of trademark. This is once again observed by the Madras High Court in Devi Pesticides Private Ltd. v. Shiv Agro Chemicals Industries (2006 (32) PTC 434 (Mad.)(DB)) wherein appeal was filed against the decision of single judge who dismissed the injunction applications of the applicants opining that there could not be any confusion in the minds of the purchasers with regard to trademark/design or appearance as both the marks were totally different.
The appellants in the instant case were manufacturers of fertilizers and flowering since 1985 but started trading under the trademark BOOM PLUS since 1987, which then was registered and was renewed periodically along with 4 other associated marks. M/s Devi Pesticides, the original proprietor by deed of assignment assigned the said proprietorship of the registered trademark BOOM PLUS to the plaintiff who had also the other trademark BOOM FLOWER-n for which registration was pending with the registering authority. The respondent/defendant’s trademark SUPER BOOM was an unregistered mark and they used the mark for the product of flowering agent. Both of the parties were manufacturing and selling the same product and the respondent failed to prove their being the prior user. The applicant filed suit for perpetual injunctions for restraining the defendant from infringing as well as passing off his goods as well as filed two applications for interim injunctions for both. The Single Judge of the High Court dismissed the suit on the ground that the petitioner’s trademark was not visually similar to the respondent’s trademark against which appeal was filed to the Double Bench of this court. The Double Bench held that it is well settled principle of law that any action for infringement and pass off where the similarity between the plaintiff and the defendant’s trademark is so close either visually, phonetically or otherwise and the Court reaches the conclusion that there is imitation, no further evidence is required to establish that the plaintiffs rights are violated.
The court further held that the applicant had prima facie case in their favour. This case showed the clear infringement of the trademark and an act of passing off the goods of the applicant by using their trademark which was deceptively similar and identical to the their trademark. It also held that the learned single judge’s conclusion to be erroneous who failed to consider the similarities in the marks. The court thus granted injunction till the disposal of the suit.
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