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2013 DIGILAW 449 (MAD)

Mohamed Aboobacker Chank v. V. Saraswathi

2013-01-21

VINOD K.SHARMA

body2013
Judgment : 1. O.A.No.404 of 2012:This application under Order XIV Rule 8 of O.S. Rules r/w Order XXXIX Rules 1 & 2 of the Code of Civil Procedure, has been filed for grant of interim injunction, restraining the respondent/defendant herself, her servants or agents or any one claiming through her from in any manner infringing the applicant’s/plaintiff’s registered trademarks as shown in the schedule to the plaint and the trademark label shown in Annexure “A” to the plaint by using the offending trademark label shown in Annexure “B” to the plaint or any other mark or marks which are in any way identical or colourable imitation of the plaintiff’s registered trademark labels pending disposal of the suit. O.A.No.405 of 2012:This application has been moved under Order XIV Rule 8 of O.S. Rules r/w Order XXXIX Rules 1 & 2 of the Code of Civil Procedure for grant of interim injunction, restraining the respondent/defendant by herself, her servants or agents or any one claiming through her from in any manner passing off her handloom textile goods, kerchief, lungies etc., bearing the offending trademark label as shown in Annexure “B” to the plaint as and for the applicant’s/plaintiff’s goods with the registered trademark label as shown in Annexure “A” either by manufacturing or selling or offering for sale or in any manner advertising the same pending disposal of the suit. O.A.No.406 of 2012:This application under Order XIV Rule 8 of O.S. Rules r/w Order XXXIX Rules 1 & 2 of the Code of Civil Procedure has been filed for grant of interim injunction, restraining the respondent/defendant by herself, her servants or agents or any one claiming through her from in any manner infringing the plaintiff’s copyright in the artistic work over trademark label “SANGU” as shown in Annexure “A” to the plaint by using the offending label or labels which are in any way deceptively similar to or a colourable imitation of the applicant’s plaintiff’s copyrighted label “SANGU” with the device of “CONCH” pending disposal of the suit. 2. It is pleaded case of the plaintiff/applicant, that plaintiff/applicant is a leading manufacturer of handloom, textile piece goods, kerchief, lungies, dhotis etc and is in business since long. The promoters of the plaintif’s company are descendants of late K.E. Mohamed Aboobacker, who commenced the business in handloom textiles, particularly lungies and kerchiefs in the year 1927. 2. It is pleaded case of the plaintiff/applicant, that plaintiff/applicant is a leading manufacturer of handloom, textile piece goods, kerchief, lungies, dhotis etc and is in business since long. The promoters of the plaintif’s company are descendants of late K.E. Mohamed Aboobacker, who commenced the business in handloom textiles, particularly lungies and kerchiefs in the year 1927. In the course of the business, plaintiff/applicant has honestly conceived and adopted the trademark “SANGU” with the device of “CONCH”. 3. That the plaintiff and predecessors have artistically created the Trademark label with Square Red Background on which artistic picture of CONCH is depicted with further frame like bordering over the square label. The square background and pictorial device of the CONCH forms essential features of the Trademark label of the plaintiff. Apart from this device of CONCH, it is known in Tamil as SANGU the plaintiff has always used “CHANK” as the Trademark in all its goods. The word mark “CHANK” is a kind of pronouncing SANGU which in Tamil means CONCH. The plaintiff also devised a composite trademark CHANK ECONOMY and SANGU ECONOMY and is using in respect of other merchandise economical to the general public, which has become extremely popular with the general public and trade. 4. It is submitted by the applicant/plaintiff, that it also applied for registration of the trademark ECONOMY DELUXE and ECONOMY SUPERFINE WORD per se which is pending registration in the trademark registry, Chennai. The applicant/plaintiff has obtained series of registration with regard to the trademarks SANGU, CHANK and the device of “CONCH” and the label used under the Trade Marks Act, 1999 in Class 24 and 25. 5. The details of the marks registered read as under: T.M. Number Mark (a) 224172 Device of Conch (b) 91228 Label of “SANGU” (c) 224215 SANGU (word in Tamil) (d) 224216 CHANK BRAND (Word) (e) 149449 SANGU with device of Conch (Tamil & Burmees) (f) 139556 Chank Brand Label (g) 187874 Chank Brand Label (h) 187875 Chank (Word mark) 6. It is submitted by the applicants/plaintiff, that by virtue of successive assignment/bequeaths K.A. Mohamed Abdul Kader, grand son of K.E. Mohamed Aboobacker has become the absolute proprietor of the Trademarks and that K.A. Mohamed Abdul Kader also registered the artistic work in the Trademark label with peculiar colour scheme and get-up under the Copyright Act vide A-Nos.52238/93, 52239/93 & 52397/93. 7. 7. It is further submitted, that the plaintiff/applicant has been using the trademark labels and has done extensive business under the said trademark label. Mr. K.A. Mohamed Abdul Kader by assignment deed dated 30.06.2000 assigned the trademarks in favour of the plaintiff and that the plaintiff/applicant has now entered as the subsequent proprietor of the trademarks. Mr. K.A. Mohamed Abdul Kader is one of the promoter Directors of the plaintiff company and the other promoter Directors namely K.M. Mohamed Yousuf and K.M. Umar Farook are sons of late K.E. Mohamed Aboobacker, the original proprietor of the Trademarks. 8. That the plaintiff and its predecessors spent huge amount towards advertisements and sales promotional efforts and the textile and hand loom goods are sold extensively throughout India and also exported to other countries and that there is an ever-increasing demand for the products under the trademarks. The sale turnover of the plaintiff/applicant since 1991 is as under: Year Turnover 1991-1992 2,01,30,997.40 1992-1993 2,83,40,704.25 1993-1994 3,54,65,423.46 1994-1995 3,88,27,822.70 1996-1997 4,71,92,361,05 1997-1998 4,50,65,855.66 1998-1999 4,60,22,297.00 1999-2000 2,43,65,789.10 2000-2001 6,44,58,500.00 2001-2002 9,74,50,260.00 2002-2003 9,76,02,732.00 2003-2004 10,78,76,158.00 2004-2005 9,48,66,033.70 2005-2006 14,40,50,070.00 2006-2007 15,66,43,404.88 2007-2008 16,85,93,234.00 2008-2009 16,68,40,918.00 2009-2010 19,40,50,557.00 2010-2011 22,00,71,288.00 The advertisement expenses during 2000 – 2005 read as under: Year Advertisement Expenses 2000-2001 7,85,991.43 2001-2002 10,99,736.30 2002-2003 25,80,936.00 2003-2004 21,32,037.00 2004-2005 11,87,421.00 2005-2006 10,22,019.00 2006-2007 9,68,868.00 2007-2008 13,25,623.00 2008-2009 7,89,963.00 2009-2010 9,85,780.00 2010-2011 9,38,881.00 9. It is the case of plaintiff/applicant, that the public in general always associate any Trademark or Trademark label consisting of the word “SANGU” with or without any prefix or suffix written in any language or the device of Conch with the goods of the plaintiff alone. The applicant/plaintiff submits that unscrupulous merchants now want to take advantage of the goodwill and reputation of the plaintiff’s products under the Trade Mark Labels and have started marketing their products with the Trade Mark Label that are identical or similar in colour combination and get up as that of the plaintiff’s registered and age old and original trade mark. 10. It is also case of the applicant/plaintiff, that consuming public in general and illiterate people purchase the fictitious products bearing the offending Trademarks believing it to be that of the plaintiff. That the plaintiff/applicant, in order to protect its celebrated trademark "SANGU" and the device of CONCH, has filed a number of proceedings both in civil and Criminal against the infringers. 11. That the plaintiff/applicant, in order to protect its celebrated trademark "SANGU" and the device of CONCH, has filed a number of proceedings both in civil and Criminal against the infringers. 11. The respondents applied for registration of the Trademark under No.180332 in respect of textile piece of goods, including Hand Kerchiefs, Lungies, Sarang, Dhoties, Towels, Scarves, Sarees and Handloom Goods etc. with the device and label mark, which is similar or deceptively similar to the plaintiff’s popular established and registered Trademark label from the publication in the trademark journal. This application is opposed by the plaintiff/applicant. 12. That the defendant’s trademark is a dubious method intelligently adopted by the defendant to trade on the reputation and goodwill of the plaintiff to make illegal gains by using a mark, which is capable of misleading the innocent and unwary public to persuade them to purchase the products of the defendant under the offending trademark label. 13. The defendant with the sole purpose of bringing their label so close and near and resemble in every respect to that of the plaintiff has devised the trademark label with Red Square Background, Square frame and the device, which is so confusingly and deceptively similar to the device of the CONCH and CHANKYA, and is also phonetically similar to the plaintiff’s celebrated Trade Mark “CHANK”. 14. It is the case of plaintiff/applicant, that the respondent could not have devised the offending Trade Mark label without keeping the plaintiff’s Trademark by side and with clear intention to imitate and counterfeit the plaintiff’s popular and the celebrated Trade mark label and the registered Trade mark “Chank”. 15. The respondent is in the same field of activity and is carrying on business in the vicinity of the plaintiff, therefore, has the knowledge of the plaintiff’s Trademark label and the enormous popularity enjoyed by the plaintiff. 16. The plaintiff/applicant therefore issued legal notice dated 02.03.2011 to the respondent to which reply was sent by the respondent, denying allegations made in the Cease and Desist notice. However, respondent offered to modify the labels. 17. It is submitted, that the said modified labels sent by the defendant clearly established the criminal intention of the defendant to trade on the high popularity and goodwill enjoyed by the plaintiff’s trademark label. However, respondent offered to modify the labels. 17. It is submitted, that the said modified labels sent by the defendant clearly established the criminal intention of the defendant to trade on the high popularity and goodwill enjoyed by the plaintiff’s trademark label. The proposed amendment also has not deviated anywhere from the original offending label, and it has retained all the features except for a change of shade. That, the respondent is using the Trademark “SANKYA” for goods for which the plaintiff is using the Trademark “SANGU” and the device of CONCH and the plaintiff has been using the Trademark for the past more than 80 years. 18. It is thus submitted, that the general public and the trade would be deceived or confused that the lungies, kerchief and other textile goods marketed by the respondent to be that of plaintiff. That the respondent, with the ulterior motive, lavishly and virtually copied the plaintiff’s registered trademark and the registered artistic work under the Copyright Act to unjustly cut the plaintiff’s trade and ruin its reputation built up in all these years. The plaintiff has maintained high quality in its products and the general public identifies the said Trademark “SANGU” with the device of CONCH to the plaintiff’s high quality products and that the respondent on the other hand is selling the products of inferior quality, thereby not only infringing applicant’s trademark “SANGU” with the device of “CONCH”, but also ruin the reputation of the applicant’s business and is playing fraud on the general public. That Warning Notice was also published in the newspapers of Tamil, Telugu, Malayalam and English. 19. On the pleadings referred to above, the applicant has moved three applications for grant of injunction, as noticed above. 20. It may be noticed here, that the plaintiff/applicant has made three prayers in O.A.No.404 of 2012, all the reliefs are being consequential by invoking Order XIV Rule 5 of the O.S. Rules, again in O.A.No.405 of 2012, all the three injunctions have been prayed for. Similar is the case regarding O.A.No.406 of 2012. It is not explained or understood how three applications are maintainable on the same cause of action praying similar reliefs. 21. Once the provisions of Order XIV Rule 5 have been invoked to claim all the three reliefs treating it to be consequential relief, the other two applications prima facie are not maintainable. 22. It is not explained or understood how three applications are maintainable on the same cause of action praying similar reliefs. 21. Once the provisions of Order XIV Rule 5 have been invoked to claim all the three reliefs treating it to be consequential relief, the other two applications prima facie are not maintainable. 22. Common counter has been filed by the respondent, by denying all the allegations in the plaint by alleging these to be false and baseless. The case of the respondent/defendant is that her father in law started production of textile piece goods and other allied goods in 1960s and thereafter in the year 1980, the husband of respondent/defendant took over from him. 23. The defendant/respondent took over from husband by establishing Saraswathi Textiles in the year 1993 as a proprietary concern for manufacturing and marketing of textile and textile piece goods, including handkerchiefs, lungies, sarongs, dhoties, towels, scarves, sarees and handloom goods. 24. The textile business is being run by the defendant/non applicant for the past few decades. The defendant claims to have established well in the business. The defendant/non applicant started marketing the goods under the Trademark “SANKYA” from the year 2005 under the trade style Saraswathi Textiles. 25. The case of the defendant/respondent is that she is the ardent follower of yoga, having deep interest not only in seeking knowledge from the ancient scriptures like Upanishads, various Sutras and the Bhagavad Gita, but also diligently practice the same. 26. It is the stand in the counter that the word “SANKYA” is referred to in a sloka in the Bhagavad Gita in Chapter III, Verse III, Line II, the sloka being Gnana Yogena Sankyanaam, Karma Yogena Yoginaam. 27. The meaning of the sloka is way of knowledge for the sankyas and way of action for the yogis. The word Sankya denotes a group of people, who are knowledgable about their self and who, with that knowledge, reach God. SANKYA is also one of the six Darshans or Sastras, which form the basis tenets of Sanathana Dharma or Hinduism. 28. The case of defendant/respondent is that the defendant adopted the work SANKYA as the Trademark from the above said scriptures from Bhagavad Gita. SANKYA is also one of the six Darshans or Sastras, which form the basis tenets of Sanathana Dharma or Hinduism. 28. The case of defendant/respondent is that the defendant adopted the work SANKYA as the Trademark from the above said scriptures from Bhagavad Gita. It is also the case of defendant/non applicant, that it is the honest adoption of the Trademark for the manufacture and marketing of textile piece goods, which makes it unique and distinctive, particularly with the characteristic yogic device of one palm placed over another. 29. The defendant/non applicant has also given the year wise sales turnover from 2005-2006 as also year wise advertisement expenses, which reads as under: YEAR-WISE SALES TURNOVER S. No. Year Sales Turnover 1 2005-2006 37,72,806/- 2 2006-2007 34,95,526/- 3 2007-2008 36,70,468/- 4 2008-2009 36,38,175/- 5 2009-2010 36,52,054/- 6 2010-2011 57,17,203/- 7 2011-2012 38,74,789/- TOTAL 2,78,21,021/- YEAR-WISE ADVERTISEMENT EXPENSES S. No. Year Sales Turnover 1 2005-2006 11,405/- 2 2006-2007 18,599/- 3 2007-2008 30,840/- 4 2008-2009 13,910/- 5 2009-2010 20,550/- 6 2010-2011 33,731/- 7 2011-2012 26,780/- TOTAL 1,55,815/- 30. It is the case of the defendant/non applicant, that in order to obtain statutory protection, the respondent filed a trademark application for the mark “SANKYA” in Class 24 under No.1980332. The Hon’ble Registrar of Trade Marks in his examination report did not cite the alleged trademark of the applicant/plaintiff as conflicting. The mark was advertised in Trademark journal No.1466 dated 10.01.2011 in Pg. 554. The Trademark application was opposed by the applicant/plaintiff and the defendant/non applicant has filed a counter statement to the opposition, by the plaintiff. 31. It is also the case of defendant/non applicant, that the plaintiff did not file its evidence in support of opposition within the prescribed statutory period, therefore, the opposition filed by the plaintiff/applicant is deemed to have been abandoned and application filed by the defendant/non applicant will result in registration of the trademark. 32. It is admitted, that cease and desist notice dated 02.03.2011 was received from the applicant/plaintiff, to which reply was sent on 14.03.2001, denying allegations. However, in order to arrive at a consensus, two amended labels seeking concurrence from the applicant/plaintiff were sent. However, instead of filing reply, the plaintiff/applicant has filed the suit. 33. 32. It is admitted, that cease and desist notice dated 02.03.2011 was received from the applicant/plaintiff, to which reply was sent on 14.03.2001, denying allegations. However, in order to arrive at a consensus, two amended labels seeking concurrence from the applicant/plaintiff were sent. However, instead of filing reply, the plaintiff/applicant has filed the suit. 33. On merit, it is the case of defendant/non applicant, that the claim of applicant to the word “ECONOMY” is not sustainable, as it is the descriptive word to which nobody can claim exclusive right. It is also pleaded, that the plaintiff/applicant has filed three trade mark applications for the mark ECONOMY and all these applications are opposed by S. Kumars Limited, Mumbai, who are using the expression ECONOMY for long years and are well known for the same. This fact has been concealed by plaintiff from this Hon’ble Court. It is also the case of defendant/non applicant, that the plaintiff/applicant has not placed on record any document, showing successive assignment and plaintiff/applicant does not have locus standi to file the suit. 34. It is the case of the defendant/non applicant, that the Trademark of defendant/non applicant is entirely different and there is no phonetic, visual or structurally similarity between the rival marks. The devices and the two rival marks are elaborated to elucidate the gross differences between them. The difference is described as under: SANKYA CHANGU PICTURE PICTURE The word ECONOMY written at the bottom The word ECONOMY DELUX written of the label. at the top of the label inside a rectangular box. The word SANKYA written in Hindi and The word CHANGU written in alien English above and below the device. language and Tamil above and below the device. The alphabet S is in the middle of the device with two lines depicting two hands The device of CONCH in a horizontal characteristically placed above and below position. the alphabet in a protective gesture, as in yogic posture. The entire device at the centre of the label is The device at the centre is in white in black colour. colour. The literature around the periphery of the The literature around the periphery of label is in English. the label is in English, Tamil and Hebrew. 35. It is also the case of respondent, that there are numerous brands, which have a red square with white periphery as their trademarks. colour. The literature around the periphery of the The literature around the periphery of label is in English. the label is in English, Tamil and Hebrew. 35. It is also the case of respondent, that there are numerous brands, which have a red square with white periphery as their trademarks. That the defendant/non applicant has no intention to imitate or adopt the trademark similar to that of plaintiff/applicant. The allegations of criminal intention are denied. It is also denied, that rival Trademarks are phonetically, visually or structural same, as claimed by the plaintiff/applicant. It is the case of defendant/non applicant, that the red color background and the square shape of the rival labels are descriptive and typical of the trade and numerous brands have adopted the same, therefore, the plaintiff/applicant cannot claim exclusive right over it. 36. It is the submission of defendant/non applicant, that the language of her label is Hindi and English, as compared to Tamil and alien language present in the applicant’s label, which shows that the trade channels and consumers and area of operation of the two parties are drastically different. The stand of defendant/non applicant is that there is no infringement of the applicant’s trade mark or passing off her goods as that of plaintiff/applicant. Nor there is any copy right infringement. 37. On the pleadings referred to above, it is prayed that the applications be dismissed. 38. Learned counsel appearing on behalf of the plaintiff/applicant vehemently contended, that the predecessors in interest of promoters and the plaintiff/applicant adopted the Trademark “SANGU” with the device of “CONCH” with red background, which has been duly registered and assigned to the plaintiff/applicant by the owners of the Trademark and artistic work. It is the contention of learned counsel for the applicant/plaintiff, that the defendant/non applicant adopted the trademark deceptively similar to that of plaintiff/applicant, therefore, is guilty of infringement of Trademark and business of plaintiff/applicant. 39. It was the contention of learned counsel for the applicant/plaintiff, that the predecessors in interest of plaintiff/applicant had succeeded in the suit titled E. Mohammed Aboobacker vs. Nanikram Maherchand, 1958 MLJ 573 , where this Hon’ble Court was pleased to hold, that predecessor of plaintiff had adopted the Trademark Chank or Sanghu or Conch, duly registered Trademark under six registration. It was the contention of learned counsel for the applicant/plaintiff, that the predecessors in interest of plaintiff/applicant had succeeded in the suit titled E. Mohammed Aboobacker vs. Nanikram Maherchand, 1958 MLJ 573 , where this Hon’ble Court was pleased to hold, that predecessor of plaintiff had adopted the Trademark Chank or Sanghu or Conch, duly registered Trademark under six registration. The defendants in the said case, who had adopted the brand called “Been Brand”, was held to be deceptively similar to that of plaintiff/applicant, therefore the interim injunction was granted. 40. This Court in the said case was pleased to hold as under: "The principles which should govern the Court in granting or withholding a temporary injunction in trade-mark infringement actions are well settled (See recent decision Henry Hemmings, Ltd. V. George Hemmings, Ltd. As a temporary injunction is merely of a provisional nature and does not conclude the rights of the parties in any way, the Court will exercise its discretion in favour of the applicant only in strong cases. The plaintiff must make out a prima facie case in support of his application for the ad interim injunction and must satisfy the Court that his legal right has been infringed and in all probability will succeed ultimately in the action. This does not mean, however, that the Court should examine in detail the facts of the case and anticipate or prejudice the verdict which might be pronounced after the hearing of the suit or that the plaintiff should make out a case which would entitle him at all events to relief at the hearing. Colman v. Farrow & Cpo., Hoover, Ltd. V. Air-way Ltd., The Upper Assam Tea Company v. Herbert and Co., Star Cycle Company Ltd. V. b. Frankenburgs. In fact the Court will not ordinarily grant an interlocutory injunction if a large amount of evidence is necessary to support the plaintiff’s case. The proper course in such a case is to ask for the trial of the action. The injury must be actual or imminent. In fact the Court will not ordinarily grant an interlocutory injunction if a large amount of evidence is necessary to support the plaintiff’s case. The proper course in such a case is to ask for the trial of the action. The injury must be actual or imminent. Pinel & Cie v. Maison Pinet, Ltd. Where the defendant disputes the plaintiff’s title to the mark or contends that the plaintiff is not entitled to relief by reason of the acquiescence or delay or other estoppels or of the defendant’s concurrent rights, the Court will be guided by the balance of inconvenience which may arise from granting ore withholding the injunction as well as the justice of the cause after considering all the circumstances in the suit. In other words, where the plaintiff’s title is disputed or the fact of infringement or misrepresentation amounting to a bar to the action or some other defence is plausibly alleged upon the interlocutory motion, the Court in granting or refusing the interim injunction is guided principally by the balance of convenience that is by the relative amount of damage which seems likely to result if the injunction is granted and the plaintiff ultimately fails or if it is refused and he ultimately succeeds; Read Brothers v. Richardson and Co.; Hommel v. Bauer & Co. As the grant of temporary injunction is governed by equitable principles, the Court will refuse to interfere summarily by such relief notwithstanding the plaintiff’s legal rights unless his conduct in the matter is free from blame and there is no acquiescence or other estoppel. The test of acquiescence required to disentitle the plaintiff to an interim injunction need not be strong as is necessary for the refusal of perpetual injunction at the hearing. It is necessary that an application for interlocutory injunction should be made immediately after the plaintiff becomes aware of the infringement of the mark. Improper and unexplained delay is fatal to an application for interlocutory injunction. The interim injunction will not be granted if the plaintiff has delayed interfering until the defendant has built up a large trade in which he has notoriously used the mark. North British Ruber Company, Ltd. v. Gormully and Jeffery Manufacturing Company, Army and Navy Co-operative Society, Ltd. v. Army Navy and Civil Service Co-operative Society of South Africa Ltd., Hayward Bros. North British Ruber Company, Ltd. v. Gormully and Jeffery Manufacturing Company, Army and Navy Co-operative Society, Ltd. v. Army Navy and Civil Service Co-operative Society of South Africa Ltd., Hayward Bros. Ltd., v. Peakall, Tost Tuypewriter Company Ltd. v. Typewriter Exchange Company, Royal Warrant Holders’ Association v. Slade & Co., Ltd. On a motion for interlocutory injunction the defendant may offer to give or the Court may ask for an undertaking and keep an account of the sales until the decree in the suit is passed and the plaintiff may accept undertaking in lieu of an interlocutory injunction. It is for the Court to decide whether in the given case the relief should be moulded to suit the exigencies of the case and grant an interlocutory injunction or accept the undertaking by the defendant to keep accounts of the sales until the decree in the suit is passed. Interim injunction will be limited as closely as possible to what is sufficient to attain that end and it is only granted upon the plaintiff undertaking to abide by any order of the Court as to damages for the loss, if any, occasioned by it to the defendant should it turn out at the hearing that it ought not to have been granted. Enforcement of injunction is by committal or attachment or fine or costs. Committal is the proper remedy for doing a prohibited act and attachment is the proper remedy for neglecting to do some act ordered to be done. Bearing these principles in mind, if we examine the facts of this case, there cannot be the slightest doubt that the plaintiff is entitled to the interim injunction asked for. The plaintiff has been exploiting this Conch mark from 1928. In fact, he has himself come to be known as Chank Aboobacker. The trade-mark which is the subject matter of the controversy was registered in 1944 and it has been again renewed for a period of fifteen years. The plaintiff has been widely advertising his products. He has opened many branches and has got an assured sale. It is in these circumstances that the defendant, who is stated to be a refugee from Karachi, has started using the mark in question from 1956. We have no evidence worth mentioning about his goods having found a market. His accounts are not forthcoming. His address is nebulous. He has opened many branches and has got an assured sale. It is in these circumstances that the defendant, who is stated to be a refugee from Karachi, has started using the mark in question from 1956. We have no evidence worth mentioning about his goods having found a market. His accounts are not forthcoming. His address is nebulous. There is no ostensible abode for this business. His application itself to have his mark registered has been opposed. But with optimism worthy of a better cause he has already printed on his butter covers that this trade-mark has been registered. The mark itself, as can be seen by a comparison, is a thorough imitation. It cannot be got over by saying that it is a snake charmer’s magudi placed on the ground in a horizontal position. If really the defendants wanted only a magudi to be his trade-mark there was nothing to prevent him from making it vertical or inclined vertically which is the position in which a magudi is always played. In fact I suggested that this futile litigation could be avoided by a slight alteration of the device, a position which would avoid confusion and passing off the wares of one as the wares of other. The defendant was averse to making any alteration because that would apparently defeat his object, viz., to make his wares pass off as the established Chank products of the plaintiff. This is not a case where the keeping of accounts would meet the ends of justice. It would only give the defendant an opportunity to entrench himself further into the handkerchief business which he would not otherwise be able to do but for assuming the guise of the plaintiff’s Chank mark.” 41. However, the reading of this judgment shows, that it was in the facts of that case, that the trademark of the defendants, though named “Been Brand”, was held deceptively similar to that of plaintiff, as the Been was shown in the lying position, which gave deceptively similar look of Chank or Sanghu. 42. However, the reading of this judgment shows, that it was in the facts of that case, that the trademark of the defendants, though named “Been Brand”, was held deceptively similar to that of plaintiff, as the Been was shown in the lying position, which gave deceptively similar look of Chank or Sanghu. 42. Learned counsel for the applicant/plaintiff placed reliance on the judgment of the Hon’ble Supreme Court in Parle Products (P) Ltd., vs. J.P. and Co., Mysore, (1972) 1 SCC 618 , wherein the Hon’ble Supreme Court was pleased to lay down as under: "(i) In order to come to the conclusion whether one mark is deceptively similar to another, the broad and essential features of the two are to be considered. They should not be placed side by side to find out if there are any differences in the design and if so, whether they are of such character as to prevent one design from being mistaken for the other. It would be enough if the impugned mark bears such an overall similarity to the registered mark as would be likely to mislead a person usually dealing with one to accept the other if offered to him. In the present case the packets are practically of the same size, the colour scheme of the two wrappers is almost the same; the design on both though not identical bears such a close resemblance that one can easily be mistaken for the other." to contend, that in this case also, the Trademark used by the defendant bears an overall similarity to the registered Trademark, which is likely to be misled by the customers in accepting goods of the defendant to be that of plaintiff/applicant. 43. The reliance was placed on the judgment of the Hon’ble Supreme Court in National Bell Co. vs. Metal Goods Mft. Co. (P) Ltd., and another, AIR 1971 SC 898 , to contend, that the plea of defendant, that they have been marketing their product since 2005, cannot be the ground to come to the conclusion that the plaintiff/applicant has abandoned its right to challenge infringement, specially when immediately on coming to know of infringement of Trademark, the plaintiff/applicant issued notice and immediately thereafter filed the suit for injunction, restraining infringement of the Trademark or passing off the goods. 44. 44. The reliance was also placed on the judgment of the Hon’ble Supreme Court in Mahashian Di Hatti Ltd., vs. Raj Niwas, Proprietor of MHS Masalay, 2011 (46) PTC 343 (Del.), wherein the Hon’ble High Court of Delhi was pleased to lay down as under: "12. It is thus settled proposition of law that in order to constitute infringement the impugned trademark need not necessarily be absolutely identical to the registered trademark of the plaintiff and it would be sufficient if the plaintiff is able to show that the mark being used by the defendant resembles his mark to such an extent that it is likely to deceive or cause confusion and that the user of the impugned trademark is in relation to the goods in respect of CS(OS)No. 326/2009 Page 12 of 24 which the plaintiff has obtained registration in his favour. It will be sufficient if the plaintiff is able to show that the trademark adopted by the defendant resembles its trademark in a substantial degree, on account of extensive use of the main features found in his trademark. In fact, any intelligent person, seeking to encash upon the goodwill and reputation of a well-established trademark, would make some minor changes here and there so as to claim in the event of a suit or other proceeding, being initiated against him that the trademark being used by him, does not constitute infringement of the trademark, ownership of which vests in some other person. But, such rather minor variations or distinguishing features would not deprive the plaintiff of injunction in case resemblance in the two trademarks is found to be substantial, to the extent that the impugned trademark is found to be similar to the registered trademark of the plaintiff. No person can be allowed to sell goods either using the mark of another person or its imitation, so as to cause injury to that person and thereby enrich himself at the cost of a person who has spent considerable time, effort and money in building the brand reputation, which no amount of promotion or advertising CS(OS)No. 326/2009 Page 13 of 24 can create unless the quality of the goods being sold under that brand is also found to be good and acceptable to the consumer. In a case based on infringement of a registered trademark, the plaintiff need not prove anything more than the use of its registered trademark by the defendant. In such a case, even if the defendant is able to show that on account of use of other words by him in conjunction with the registered word/mark of the plaintiff, there would be no confusion in the mind of the customer when he come across the product of the defendant and/or that on account of the packaging, get up and the manner of writing trademark on the packaging, it is possible for the consumer to distinguish his product from that of the plaintiff, he would still be liable for infringement of the registered trademark. 13. The logo “MDH” in three hexagons written in white colour on red colour background is an integral part of the registered mark/cartons of the plaintiff company in respect of various spices and condiments. The plaintiff is an established and well-reputed manufacturer and marketer of spices being sold using the aforesaid logo. It is settled proposition of law that in order to ascertain whether the CS(OS)No. 326/2009 Page 14 of 24 impugned trademark constitutes infringement mark of the plaintiff or not, the two marks are not to be placed side by side. The person coming across the product of the defendant, bearing the impugned trademark may not necessarily be having the product of the plaintiff bearing his registered trademark with him when he comes across the product of the defendant with the mark “MHS” logo. This is more so in the case of an average Indian citizen who may not necessarily be well-educated. This proposition of law would apply with a greater force in case of products like spices which normally are purchased by housewives and domestic helps, who may not care to notice the features which distinguish the trademark of the defendant from that of the plaintiff. Therefore, if on coming across the product of the defendant bearing the impugned trademark, he forms an impression that this could be the product of the plaintiff, it may induce, on account of overall similarity of the two trademarks, him to believe that the product which he has come across was, in fact, the product of the plaintiff or had some kind of an association or connection with the plaintiff. 14. 14. A comparison of the logo of the plaintiff along with CS(OS)No. 326/2009 Page 15 of 24 the logo of the defendant would show the following prominent similarities: (a) The defendant has used three hexagons for writing three different letters as has been done by the plaintiffs in writing the letters “MDH". (b) The letters “MHS" have been written in white colour and so are the letters “MDH" (c) The background colour used by the defendant for writing the letters “MHS" is red and so is the background colour used by the plaintiffs. (d) There is a white border on the hexagons of the plaintiffs and the same is the position in respect of the hexagons being used by the defendant. (e) The shape of the letters used by the defendant for writing “MHS" is identical to the shape of the letters used by the plaintiff for writing the letters “MDH". Thus, the trademark being used by the defendant is visually similar to the trademark being used by the plaintiff. Though phonetically, there may not be much similarity in the two trademarks on account of use of the letter “S" in place of “D" and re-arrangement of the letters. CS(OS)No. 326/2009 Page 16 of 24 The last letter in the trademark of the plaintiff is “H", whereas it has been made second letter in the trademark of the defendant. The last letter in the trademark of the plaintiff is “H", whereas it is “S" in the trademark of the defendant. However, considering the strong visual similarity, rather weak phonetic similarity, would not be of much consequence and would not permit the defendant to use the logo being presently used by him. 15. Admittedly, both the parties are engaged in the similar business as both of them are manufacturing and selling spices. Therefore, the defendant, in my view, has infringed the registered trademark of the plaintiff by using the aforesaid logo “MHS". The adoption and use of the letters “MHS" in the manners stated above appears to be deceptive intended to confuse the consumer and encash upon the goodwill which plaintiff"s trademark “MDH" enjoys in the market." to contend, that the Trademark of defendant/non applicant is deceptively similar to that of plaintiff/applicant. 45. The adoption and use of the letters “MHS" in the manners stated above appears to be deceptive intended to confuse the consumer and encash upon the goodwill which plaintiff"s trademark “MDH" enjoys in the market." to contend, that the Trademark of defendant/non applicant is deceptively similar to that of plaintiff/applicant. 45. Finally, the reliance was placed on the judgment of the Hon’ble Supreme Court in K.R. Chinna Krishna Chettiar vs. Ambal and Co., Madras and another, PTC (Suppl)(1) 258(SC), laying down that if there is no visual resemblance between the two marks, as ocular comparison is not always the decisive test. The resemblance between the two marks must be considered with reference to the ear as well as the eye, as there is a close affinity of sound between Ambal and Andal. 46. The Hon’ble Supreme Court in this case however held that the word “Sri” may be regarded as of common use. However, taking note of the fact, that the respondent’s mark in that case was Ambal while that of the appellant’s mark was Andal, the two words were held to be deceptively similar in sound. 47. The contention of learned counsel for the applicant/plaintiff therefore was that the words “SANKYA” and “CHANGU” are similar marks and even the picture of one form or other has been deceptively placed in such a way, that it looks like CHANGU with the intention to pass of their products as that of plaintiff/applicant. Therefore, the plaintiff/applicant has prima facie case and the balance of convenience is also in favour of the applicant/plaintiff, and that it is likely to suffer irreparable loss, if the injunction is not granted. 48. Learned counsel for the defendant/non applicant on the other hand vehemently contended, that the plaintiff/applicant does not have any prima facie case, therefore, is not entitled to temporary injunction. The defendant/non applicant, though carrying on business in the same vicinity, have been using the trademark for more than seven years now and has made a name for itself in the market. 49. It was also the contention of learned counsel for the defendant/non applicant, that there is no similarity whatsoever in the Trademark used by the plaintiff/applicant and that by the defendant/non applicant. 50. It is submitted, that the primary distinction is that the photo used by the defendant/non applicant is in bowl form, whereas that of plaintiff/applicant is Changu. 49. It was also the contention of learned counsel for the defendant/non applicant, that there is no similarity whatsoever in the Trademark used by the plaintiff/applicant and that by the defendant/non applicant. 50. It is submitted, that the primary distinction is that the photo used by the defendant/non applicant is in bowl form, whereas that of plaintiff/applicant is Changu. It was contended, that the Changu has no identical similarity with that of SANKYA. That it cannot be said that there is likelihood of customers to be misled to accept the goods of defendant/non applicant to be that of plaintiff/applicant. That there is no similarity between the two labels, as detailed above. 51. Learned counsel for the defendant/non applicant submitted that the judgments on which reliance was placed by the learned counsel for the applicant/plaintiff do not have any bearing on the facts of the present case, as the law laid down in all these judgments is that in order to hold infringement of a registered trademark, it is required to be shown, that the trademark should be either deceptively similar or phonetically similar, but in the present case, the trademark of plaintiff/applicant is neither visually similar to that of defendant/non applicant, nor it is phonetically similar. Therefore, no prima facie case is made out for interference by this Court. 52. It was also contended, that even otherwise the suit as framed is not maintainable, as the plaintiff/applicant has not placed on record the Deed of Assignment, showing the plaintiff/applicant to be the owner of Trademark, as it is admitted case, that the Trademark was under the proprietorship of K.A. Mohammed Abdul Kader, whereas the plaintiff/applicant is a company, registered under the Companies Act. 53. On consideration, I find that the applications deserve to be dismissed. 54. The suit filed by the plaintiff/applicant itself suffers from patent defect. In Para-1 of the plaint, it is pleaded, that the plaintiff is a company registered under the Companies Act, represented through its Managing Director. The plaintiff/applicant has failed to place on record the resolution of the company authorizing its Managing Director to file and prosecute the present suit. In absence of resolution or its subsequent ratification by the Board, it cannot be said that the suit is properly instituted. 55. The plaintiff/applicant has failed to place on record the resolution of the company authorizing its Managing Director to file and prosecute the present suit. In absence of resolution or its subsequent ratification by the Board, it cannot be said that the suit is properly instituted. 55. The plaintiff/applicant has also not placed on record any copy of assignment, to show the assignment of Trademark in favour of plaintiff/applicant, though it is pleaded in the application. 56. It may also be noticed here, that the Trademark of defendant is not deceptively similar to that of plaintiff/applicant, as there is no similarity between the photograph of Chank and that of defendant/non applicant, as was the case of “Been Brand and Chank” as was the case of E. Mohammed Aboobacker vs. Nanikram Maherchand (supra). 57. The word “CHANK” is not even phonetically similar to SANKYA. 58. Merely because the defendant/non applicant is using red background in square cannot be said to be infringement of Trademark. 59. A bare look at both the Trademarks does not leave any manner of doubt, that no customer can be misled to take the goods of defendant/non applicant to be that of plaintiff/applicant. As already noticed above, if the action of Managing Director of plaintiff is ratified by passing a board resolution, it can then be said that the suit has been properly filed to entitle the plaintiff/applicant to seek injunction. 60. Consequently, it can be said, that the plaintiff/applicant has failed to make out prima facie case. Nor balance of convenience is in favour of plaintiff/applicant. The plaintiff/applicant is also not likely to suffer irreparable loss, as in the event of success, the plaintiff/applicant can always be compensated by damages. 61. No merits. Dismissed. No costs.