In Law, Deceptive similarity indicates confusion caused either
deliberately or inadvertently over two similar products enough to
mislead an ordinary prudent man that he is likely to choose the
deceptive product over the original product. The significance of
the decision in this case lies in the approach of the Court looking
at and interpreting the deceptive similarity and Section12 of
Trademarks Act. V.Pichandi Sole Proprietor, in a move against
G.Charapani Match Works [V.Pichandi Sole Proprietor & Ors
Versus G.Chakrapani Match Works & Ors,2010 (42)
PTC29(Bom)] alleged them for breach of trademark before the
Madras High Court. V.Pichandi Sole Proprietor, the plaintiff is
conducting business in the sale of safety matches under the
trademark PLUS2 particularly in the district of Beed, Aurangabad,
Ahmednagar. G.Chakrapani Match Works, Defendant No1 is manufacturer
of safety matches bearing offending trademark PLUS5. Both are
similar and chances for administration of PLUS5 by consumers in
place of PLUS2 is higher. The customers are purchasing safety
matches with trademark PLUS5 under the belief that they are
purchasing safety matches with trademark PLUS2 and this has put V.
Pichandi Sole Propritor into irreparable loss. It's not only a
case of trademark infringement but also passing off. Thus it was
asserted that a perpetual injunction be granted to avoid such
The G.Chakrapani Match Works, averred to be the registered
proprietors of trademark PLUS2. According to him a logo of his
personal photograph, distinguishes it from the trademark of
V.Pichandi Sole Proprietor and contended that the V.Pichandi Sole
Proprietor have been using different designs than the registered
trademark. Thus V.Pichandi Sole Proprietors were not entitled to
equitable relief and question regarding passing off and
infringement of trademark doesn't arise. It was submitted that
during the pendency of the case G.Chakrapani Match Works,
successfully registered the trademark PLUS5 with the registrar of
trademark. They further submitted that the Intellectual Property
Appellate Board and Trial Court had dismissed the suit before it on
the ground that no confusion or deception has been substantiated by
the grant of trademark to G.Chakrapani Match Works, of PLUS5 and
thus the writ petition by V.Pichandi Sole Proprietor is pending
before Madras high court.
Further Section 12 of the Act was observed while opining about
the judgement passed by the Appellate Board produced before the
Trial Court. Section 12 of Trademark Act 1999 defines honest
concurrent use of trademark. As per Section 12 in case of honest
concurrent use or of other special circumstances which, in the
opinion of the Registrar, make it proper so to do, he may permit
the registration by more than one proprietor of trade marks which
are identical or nearly resemble each other, whether any such trade
mark is already registered or not, in respect of the same goods or
description of goods, subject to such conditions and limitations,
if any, as the Registrar may think fit to impose.
The Trial Court had concluded on basis of Section 12 that there
was no evidence of infringement of trademark or passing of and this
was not a case to issue temporary injunction. The Trial Court
opinioned that granting temporary injunction in this appeal would
be upsetting since writ petition was pending before the Madras High
Court. So if any interim order has to be sought it should be sought
in writ petition pending before the Madras High Court.
On comparison of claims the Madras High Court held that, this
civil application pending doesn't survive. In this view the
Court disposed of the civil application and the parties were to
bear their own cost.
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