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 dangerous consequence.
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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