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2011 DIGILAW 958 (DEL)

Amir Chand Om Parkash v. Rajni Industries

2011-11-07

VALMIKI J.MEHTA

body2011
Valmiki J. Mehta, J. FAO No. 48/2011 and C.M. Nos. 2360/2011, 2361/2011 and 2364/2011 1. The challenge by means of this first appeal is to the impugned order dated 11.1.2011 passed by the trial Court dismissing the injunction application of the appellant/plaintiff filed in a suit for injunction against violation of a registered trademark device. 2. The facts of the case are that the appellant/plaintiff claims to be the registered proprietor of the device which includes the picture of Lord Hanuman and also uses the word “MAHABIR”. The suit was filed in the infringement of the registered trademark as also for passing off. The appellant/plaintiff is in the business of selling Dhoopbatti, Agarbatti and Hawan Samagri. The respondent/defendant was using its unregistered trademark “SHRI PANCH MUKHI HUNUMAN”. The defendant/respondent even before filing of the suit had stopped using the picture of Lord Hanuman and was, in fact, using the picture of a mace. 3. The trial Court has dismissed the injunction application by making the following observations:- "The trademark "MAHABIR" as used by the plaintiff and the trademark "SHRI PANCHMUKHI HANUMAN" as used by the defendant are not phonetically similar. Moreover, the comparison of plaintiff's carton/label and defendant's carton/label shows that the trademark "MAHABIR" along with the device of "LORD HANUMANJI" and of "SHRI PANCHMUKHI HANUMAN" along with the device of "GADDA" does not likely to cause deception or confusion in the minds of the public as to pass off the goods of the defendant as that of the goods of the plaintiff. Accordingly, I am of the opinion that plaintiff has no prima facie case so as to restrain the defendant from using the trademark "SHRI PANCHMUKHI HANUMAN" along with device of "GADDA". However, as the defendant has contended that they are not using the device "LORD HANUMANJI" on their products prior to the institution of the suit. The defendant is restrained from using the device of "LORD HANUMANJI" in their products namely Dhoopbatti, Agarbatti and Hawan Samagri till the disposal of the suit. Accordingly, the application U/O 39 Rule 1 and 2 CPC is disposed of. Nothing expressed herein shall tantamount to an opinion on the merits of the case." 4. The defendant is restrained from using the device of "LORD HANUMANJI" in their products namely Dhoopbatti, Agarbatti and Hawan Samagri till the disposal of the suit. Accordingly, the application U/O 39 Rule 1 and 2 CPC is disposed of. Nothing expressed herein shall tantamount to an opinion on the merits of the case." 4. Learned counsel for the appellant very heavily relies upon a decision of a Single Judge of this Court in the case reported as Amir Chand Om Parkash v. Monga Perfumery & Floor Mills, 1995 PTC (16) 385 wherein the defendant was restrained from using the trademark `JAI BAJRANG BALI' and a similar label. It is contended on behalf of the appellant that the judgment in the case of Amir Chand Om Parkash (supra) clearly applies in the present case also and therefore the trial Court has committed an error in dismissing the injunction application. In my opinion, the reliance placed upon by the counsel for the appellant in the case of Amir Chand Om Parkash is misconceived because in the facts of the said case, the Court came to a conclusion that it prima facie appeared taking both the device marks together that the impugned labels and marks of the defendant were colourable imitation and substantially similar so as to cause confusion in the minds of the purchasers(see para 4 of the citation). In the present case, I do not find any deceptive similarity between the device mark having the picture of Lord Hanuman alongwith the word `MAHABIR' and the trademark of defendant which is `SHRI PANCHMUKHI HANUMAN'. There is neither phonetic nor visual similarity so that any deceptive similarity can be asserted. Before the plaintiff/appellant is entitled to injunction, it is necessary that there should be deceptive similarity between marks. Further, the mark of the appellant/plaintiff is a device mark and not a word mark and therefore normally the device will have to be taken as a whole. No doubt, a prominent part of the device mark also cannot be used by the respondent, however, I do not find any such issue or deceptive similarity between the word mark `MAHABIR' and `BHAKTI SAGAR SHRI PANCHMUKHI HANUMAN'. Besides using the expression "BHAKTI SAGAR SHRI PANCHMUKHI HANUMAN", the respondent is also prominently displaying its other trademark viz "T-series" alongwith the expression "BHAKTI SAGAR SHRI PANCHMUKHI HANUMAN" to remove any alleged confusion. Besides using the expression "BHAKTI SAGAR SHRI PANCHMUKHI HANUMAN", the respondent is also prominently displaying its other trademark viz "T-series" alongwith the expression "BHAKTI SAGAR SHRI PANCHMUKHI HANUMAN" to remove any alleged confusion. The facts of the present case do not prima facie show any scope of the public being deceived. 5. In view of the above, I do not find any illegality or perversity in the impugned judgment which calls for interference by the Court in an appeal. The appeal is accordingly dismissed. Nothing contained in the impugned order will amount to expression on merits of the case. Trial Court record be sent back.