JUDGMENT : 1. The application in O.A.No.1017 of 2014 has been filed to grant an order of ad-interim injunction restraining the respondent by himself, his men, servants, agents, distributors, stockists, representatives or any one claiming through them from in any manner infringing the applicant's registered trademark under No.454606 in class 24 and other registered trademarks by using the trademark MOHIT or any other mark deceptively similar to the plaintiff's registered trademark MOTHI or in any other manner whatsoever pending disposal of the suit. 2. The application in O.A.No.1018 of 2014 has been filed to grant an order of ad-interim injunction restraining the respondent by himself, his men, servants, agents, distributors, stockists, representatives or any one claiming through them from in any manner passing off and/or enabling others to pass off the respondent's products as and for the applicant's products by manufacturing, selling or offering to sell, distributing, displaying, printing, stocking, using, advertising products bearing trademark MOHIT or any other mark deceptively similar to the plaintiff's registered trademark MOTHI or in any other manner whatsoever pending disposal of the suit. 3. The applicant is the plaintiff and the respondent is the defendant in the suit in C.S.No.823 of 2014. 4. For the sake of convenience, the parties will be referred to as per their ranking in the civil suit. 5. The case of the plaintiff, in brief, is as follows:- (a) The plaintiff is a registered partnership firm manufacturing and marketing towels all over India since 1971. During the course of their business, they adopted the trademark MOTHI. The trademark MOTHI is inherently distinctive of the products viz., TOWELS and as such, the same has been identified with the plaintiff ever since its inception and continues to be so. The trademark MOTHI has been registered by the plaintiff under No.454606 in Class 24 in respect of 'Handloom towels and napkins'. The said trademark label consists of a device of a pearl in an oyster alongside with the words MOTHI, TEX and TOWELS one below another. The plaintiff's label also contains the words MOTHI TEX in HINDI followed by address of the plaintiff. The said label has been registered on 26.5.1986 and has been duly renewed till date. The said trademark presently is valid and subsisting till the year 2017. (b) The said trademark has the essential feature of the plaintiff's label. The plaintiff's label also contains the words MOTHI TEX in HINDI followed by address of the plaintiff. The said label has been registered on 26.5.1986 and has been duly renewed till date. The said trademark presently is valid and subsisting till the year 2017. (b) The said trademark has the essential feature of the plaintiff's label. The plaintiff has made small additions to its label from time to time and is presently selling the towels with the trademark MOTHI in a distinctive label wherein alongside the above trademark label, they are also depicting a medallion and the words GOLD MEDAL WINNERS. The plaintiff has registered the MOTHI TEX label under the Copyrights Act, 1957 under No.A-14103/75 dated 8.10.1975. The plaintiff has also registered under the Copyrights Act for another MOTHI TEX label under No.A-35687/82 dated 2.2.1982 and for MOTHI word label under No.A-46907/85 dated 4.2.1985. The said copyright registrations are valid and subsisting. (c) The plaintiff is manufacturing and selling towels under the trademark and copyright MOTHI since 1971 openly, honestly and continuously. By virtue of the long, extensive and continuous usage of the trademark MOTHI, the said mark has become associated with the plaintiff exclusively. The products of the plaintiff have been available in the market for the last 40 years. While so, now, the plaintiff came to know that the defendant has been manufacturing and selling towels under the trademark MOHIT. The trademarks MOTHI and MOHIT are almost identical and the letters are merely jumbled and is clearly only with an intention to sail as close as possible with that of the plaintiff's. The plaintiff became aware of the defendant's usage of imitative MOHIT towels, which is deceptively similar to the plaintiff's MOTHI towels, in the month of May, 2014. Hence, the plaintiff issued a cease and desist notice dated 20.5.2014. On receipt of the said notice, the defendant sent a reply dated 9.6.2014 denying the contents of the legal notice. (d) The plaintiff's registration of the trademark is valid and subsisting and the defendant's trademark MOHIT label is almost identical to the plaintiff's registered trademark. The identity and placement of features along with the highly similar trademark MOHIT amounts to passing off and will also enable others to pass off the defendant's products as that of the plaintiff's products. (d) The plaintiff's registration of the trademark is valid and subsisting and the defendant's trademark MOHIT label is almost identical to the plaintiff's registered trademark. The identity and placement of features along with the highly similar trademark MOHIT amounts to passing off and will also enable others to pass off the defendant's products as that of the plaintiff's products. If the defendant is allowed to use the trademark MOHIT, it would cause hardship to the business as well as reputation of the plaintiff which cannot be compensated in pecuniary terms. Hence, the present suit. Pending the suit, the plaintiff has filed the present applications for interim injunction. 6. This Court, by order dated 16.12.2014, granted an order of interim injunction in O.A.No.1018 of 2014 and ordered notice in O.A.No.1017 of 2014. On appearance, the defendant has filed a common counter, wherein it has been stated as follows:- (a) The defendant denies that the plaintiff's products are available in the market for more than 40 years. Further, the defendant denies that the plaintiff's trademark is distinctive of the products and well known among the public and traders. The phonetic pronunciation of both MOTHI and MOHIT is entirely different. Therefore, by no stretch of imagination, the plaintiff can contend that the letters are jumbled with an intention to sail as close as possible with the plaintiff. (b) The issuance of cease and desist notice and its reply notice given by the defendant are matters of record. Further, the contention that the alleged admission of the defendant's Company Secretary that the impugned trademark is used for the past six months would not automatically entitle the plaintiff for grant of injunction. The plaintiff has to establish before this Court that they are entitled to injunction by establishing the contentions with documents or evidentiary value supporting such contentions. (c) It is denied that the defendant's trademark is resembling with the plaintiff's trademark and the chances of confusion and deception is inevitable. The defendant's trademark is not identical with the plaintiff's trademark. The following are the differences which are distinctive between the plaintiff's trademark and the defendant's trademark:- DEFENDANT'S TRADEMARK PLAINTIFF'S TRADEMARK The colour of the label is blue The colour of the label is dark green. Font used in trademark MOHIT is different Font used in the trademark MOTHI is different. The word Gold is found in the respondent's trademark. The following are the differences which are distinctive between the plaintiff's trademark and the defendant's trademark:- DEFENDANT'S TRADEMARK PLAINTIFF'S TRADEMARK The colour of the label is blue The colour of the label is dark green. Font used in trademark MOHIT is different Font used in the trademark MOTHI is different. The word Gold is found in the respondent's trademark. The word tex towel is not found. The word Gold is not found. The word tex towel is found in the applicant's towel. There is no symbol or character or carton or image prominently displayed in the respondent's trademark. The symbol of Oyster with pearl is prominently displayed in the applicant's trademark. There is no registration number in the respondent's trademark. There is a registration number 454606 in the applicant's trademark. The words super fine quality is prominently displayed. No such words. N. Ravichandr Handloom, Surampatti, Erode-638 009 prominently displayed in the respondent's trademark. Mot Textiles, Surampatti, Erode-9 prominently displayed in the applicant's trademark. On the left hand side of the words 'Best quality in product' with a medal is displayed in the respondent's trademark. On the left hand side the words 'Gold Medal Winners' with a medal is displayed in the applicant's trademark. The medal reflects NRC meaning N. Ravi Chandran The medal reflects 'Trans world Tradefare Gold medal Selection award'. (d) The defendant's trademark MOHIT in Sanskrit means and denotes happiness, charm, depiction of the lord of happiness "Monmohita Krishna", whereas the plaintiff's trademark MOTHI means and denotes pearl. The literal meaning of the defendant's trademark and the plaintiff's trademark is entirely different and the defendant's trademark is not similar to that of the plaintiff's trademark. The defendant is not guilty of infringement of trademark. (e) The defendant has always been carrying on the business in the name of N. Ravichandran Handlooms and the image in the mind of the class of purchasers who are dealing with the products are that of MOHIT Gold Super Fine Quality products which are products from N. Ravichandran Handloom, Surampatti, Erode-638 009, whereas, the image established in the mind of the class of purchasers who are dealing with the plaintiff's products are that of MOTHI TEX TOWELS which are manufactured by MOTHI Textiles, Surampatti, Erode-9. Surampatti is a hub for production of towels and therefore, no one can claim exclusiveness in claiming the village name. Surampatti is a hub for production of towels and therefore, no one can claim exclusiveness in claiming the village name. Thus, the defendant sought for the dismissal of the applications. 7. Learned counsel appearing for the plaintiff submitted that the plaintiff is manufacturing and marketing towels all over India since the year 1971. During the course of their business, they have adopted the trademark MOTHI. The said trademark MOTHI is inherently distinctive of the products viz., towels. The said mark has been registered by the plaintiff under No.454606 in respect of Handloom towels and napkins. The plaintiff has also registered their mark under the Copyrights Act, 1957 under No.A-14104 dated 8.10.1975. The plaintiff has also registered under the Copyrights Act for another mark MOTHI TEX label under No.A-35687/82 dated 2.2.1982 and for MOTHI word label under No.A-46907/85 dated 4.2.1985. Therefore, the plaintiff has been using their trademark MOTHI for a long period and the mark has also been registered and the label has also been registered with the Registrar of Trademarks and also under Copyrights Act respectively. While so, for the past six months, the defendant is using the trademark MOHIT for the identical purpose. Hence, if the defendant is allowed to use the trademark MOHIT, it would create confusion in the mind of the public and the plaintiff would suffer irreparable loss and hardship. In support of his contention, learned counsel appearing for the plaintiff has also placed reliance upon the decision of High Court of Delhi reported in 2007 (34) PTC 66 (Del) - FMI Limited v. Ashok Jain and Ors. 8. Per contra, it is the reply of the learned counsel appearing for the defendant that the words MOTHI and MOHIT are not phonetically similar. There are distinctive differences between the plaintiff's trademark and the defendant's trademark. Learned counsel has also pointed out certain differences found in the plaintiff's trademark and the defendant's trademark. Further, according to the learned counsel appearing for the defendant, the degree of resemblance is very very narrow and in Sanskrit the defendant's trademark MOHIT means and denotes happiness, charm, depiction of the lord of happiness "Monmohita Krishna", whereas the plaintiff's trademark MOTHI means and denotes pearl. Therefore, the plaintiff is not entitled for continuation of the interim injunction already granted by this Court. Therefore, the plaintiff is not entitled for continuation of the interim injunction already granted by this Court. Further, according to the learned counsel appearing for the defendant, the entire issue involved in the suit is a matter of evidence and only after recording the evidence, this Court can come to a conclusion as to whether the defendant's trademark is deceptively similar to that of the plaintiff's trademark or not. Hence, unless and until the plaintiff establishes in evidence that the defendant's trademark is phonetically and deceptively similar to that of the plaintiff's trademark, the plaintiff is not entitled for interim injunction. 9. I have heard the submissions made on either side and paid my anxious consideration on the said submissions. 10. The submission of the learned counsel appearing for the defendant for opposing the continuation of interim injunction is on two folds viz. (i) There are distinctive differences between the plaintiff's trademark and the defendant's trademark. The phonetic pronunciation of the plaintiff's trademark MOTHI and the defendant's trademark MOHIT is entirely different. Under such circumstances, unless and until the plaintiff establishes in evidence that the defendant's trademark is phonetically similar to that of the plaintiff's trademark, the plaintiff is not entitled for continuation of interim injunction. (ii) The meaning of the defendant's trademark MOHIT in Sanskrit is happiness, charm, depiction of the lord of happiness "Monmohita Krishnana", whereas the plaintiff's trademark MOTHI means pearl. Therefore, the literal meaning of the defendant's trademark and the plaintiff's trademark is entirely different. Hence, the defendant's trademark is not similar to that of the plaintiff's trademark. 11. With regard to the first fold of submission referred to above, learned counsel appearing for the defendant by inviting the attention of this Court to the trademarks of the plaintiff as well as defendant, pointed out certain differences between these trademarks and submitted that when there is lot of visual differences between these two trademarks, the plaintiff is not entitled for continuation of interim injunction. But, it is the reply of the learned counsel appearing for the plaintiff that the trademarks MOTHI and MOHIT are almost identical and the letters are merely jumbled and is clearly coined only with an intention to sail as close as possible with that of the plaintiff's and as such, the plaintiff is entitled for continuation of interim injunction. But, it is the reply of the learned counsel appearing for the plaintiff that the trademarks MOTHI and MOHIT are almost identical and the letters are merely jumbled and is clearly coined only with an intention to sail as close as possible with that of the plaintiff's and as such, the plaintiff is entitled for continuation of interim injunction. Though there is a small difference in the labels of the plaintiff and defendant, since the name of the trademark of the defendant is identical with the trademark of the plaintiff, the plaintiff is entitled for continuation of interim injunction. 12. In support of his contention, the learned counsel appearing for the defendant has also placed reliance on the judgment reported in reported in AIR 1987 MADRAS 265 in the case of Aravind Laboratories v. V.A. Samy Chemical Works, and submitted that this Court has granted interim injunction in that case in spite of the fact that there were 36 differences between the trademarks of the plaintiff and defendant. The relevant passage from the said judgment is as follows:- "23. The second contention of the defendant is that in any event his trade mark Rani Eyevix and the carton in which it is marked has got several distinctive features and there is no possibility of anyone being misled to purchase the product of the plaintiff by the carton used by the defendant. The following differences between the plaintiff's trade mark and the defendant's trade mark are pointed out:- EYETEX EYEVIS 1. EYE Drawing 1. Bye-Photo of 12 years girl 2. Eye Ball in the Centre 2. Eye Ball in the corner 3. *** 3. Natural Eye (i.e.)*** 4. Eyebrow - Drawing 4. Eye Brow Natural 5. Out line face-no-with nose 5. Out line face-yes-with the nost 6. Eyetex type difference 6. Eyevix Type differences 7. Eyetex - Big letters 7. Eyevix-Small letters 8. Only eye tex 8. Rani Eyevix 9. Eye tex-Regd 9. No. 'Regd.' in Eyevis 10. Colour difference in packing, dark in colour 10. Colour difference in packing light in colour. 11. Black side only 'Aravind Lab' 11. There is a cutting on the back side 12. No cutting 12. Cutting 13. No crow 13. Crown 14. No type 14. Type "Rani Eye Vix" 15. Rate Rs.1.25 15. Rate Rs.1.10 16. Local taxes extra 16. All taxes inclusive 17. Outer design difference 17. Outer design difference 18. 11. Black side only 'Aravind Lab' 11. There is a cutting on the back side 12. No cutting 12. Cutting 13. No crow 13. Crown 14. No type 14. Type "Rani Eye Vix" 15. Rate Rs.1.25 15. Rate Rs.1.10 16. Local taxes extra 16. All taxes inclusive 17. Outer design difference 17. Outer design difference 18. Side's printing small letters 18. Side's printing big letters 19. Outer design difference 19. No designs in the outer 20. Box Big size 20. Box small size 21. *** Main side Regd. No. given 21. *** Main side MFG LIC No. given 22. *** Cutting difference 22. *** Cutting difference CONTAINER 23. Screw type 23. Ordinary type Pressing 24. Letters ordinary type 24. Letters bold type 25. No crown 25. Crown 26. Model difference and in size 26. Model difference and in size 27. Six cutting or line in the container 27. No cuttings or line in the container 28. Address difference on the back side of the container 28. Address difference in the address on the back side of the container 29. No perfume 29. Perfumed STICKES 30. White in colour 30. Black in colour 31. Square in nature head 31. Round type INSTRUCTION SHEET 32. Six languages 32. Two languages 33. Big sheet 33. Small sheet 34. Blue ink 34. Black ink used 35. Printing notice nice 35. Printing notice thick PACKING 36. 3 dozen 36. One dozen. The above differences are also brought out in the cross examination of P.W.1 as well as in the deposition of D.W.1." Thus, in the above case, the learned single Judge of this Court by pointing out 36 differences between the plaintiff's trademark and the defendant's trademark, in para 26 of the said judgment, held as follows:- "26. The principles to be applied to a case like this had been laid down by the Supreme Court in the case reported in F. Hoffamann La Roche & Co. Ltd. v. Geoffery Manners & Co. Pvt. Ltd., AIR 1970 SC 2062 : (1970) 2 SCR 213 . The Supreme Court while considering the two trademarks "Protovit" and "Dropovit" observed as follows:- 'In order that a trademark may be found deceptively similar to another it is not necessary that it should be intended to deceive or intended to cause confusion. It is its probable effect on the ordinary kind of customers that one has to consider. The Supreme Court while considering the two trademarks "Protovit" and "Dropovit" observed as follows:- 'In order that a trademark may be found deceptively similar to another it is not necessary that it should be intended to deceive or intended to cause confusion. It is its probable effect on the ordinary kind of customers that one has to consider. For this purpose it is necessary to apply both the visual and phonetic tests. It is also important that the marks should be compared as whole. It is not right to take a portion of the word and say that because that portion of the word differs from the corresponding portion of the word in the other case there is no sufficient similarity to cause confusion. The true test is whether the totality of the trademark is such that it is likely to cause deception or confusion or mistake in the minds of the persons accustomed to the existing trademark.' In the case reported in Parle Products (P) Ltd. v. J.P. and Co., Mysore, AIR 1972 SC 1359 : (1972) 3 SCR 289 , the Supreme Court observed as follows:- "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. 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 case reported in Lakshmi Narayan Karva v. Satyanarayan Khubchand (1974) 2 Mad LJ 453 : ( AIR 1975 Mad 112 ) a Division Bench of this Court observed as follows:- "In judging whether a combination mark is distinctive or not, it is wrong to dissect the mark and show that each of its component parts is not distinctive in itself and then as a result of this process to conclude that the mark as a whole is not distinctive." In view of the principles laid down in the above decisions, we cannot place the registered trademark Eyetex along with the defendant's mark "Rani Eyevix" and the figures adopted in the carton side by side and then proceed to ascertain the difference in features and come to the conclusion as to whether there is a possibility of deception. The contention of the defendant that such a procedure should be adopted in this case will have to be negatived in view of the principles laid down in the above decisions. What we have to consider is the overall aspects placing ourselves in the place of unwary purchaser. The prefix "Rani" to the defendant's mark is made in small letters which will not catch the eye of an unwary purchaser. So also the facial lines found in the defendant's mark on the carton will not readily catch the eye of an unwary purchaser. So far as the distinction in the cap by providing a crown will not attract the purchaser because it goes inside the carton. There is a phonetic similarity between "Eyetex" and "Eyevix". The design of the carton and the colours adopted also show that a deception is possible. No doubt there is difference in size of letters and the purchaser is not likely to remember the size of the letters. So far as the difference in the eye brows there is a difference in marks which cannot be remembered by the purchaser. If we consider the overall aspects, as pointed out in the above decisions, it is clear that there is a phonetic similarity and other similarities which will likely deceive an unwary purchaser. So far as the difference in the eye brows there is a difference in marks which cannot be remembered by the purchaser. If we consider the overall aspects, as pointed out in the above decisions, it is clear that there is a phonetic similarity and other similarities which will likely deceive an unwary purchaser. The dissimilarity pointed out are not likely to be remembered by an unwary purchaser. Under the circumstances, I have no hesitation in coming to the conclusion that the defendant's carton "Rani Eyevix" is an infringement of the plaintiff's registered trademark Eyetex." From the dictum laid down in the above judgment, I am of the opinion, when prima facie this Court has come to the conclusion that the trademark of the defendant viz., MOHIT is deceptively similar to that of the trademark of the plaintiff viz., MOTHI, definitely, the plaintiff is entitled to an order of interim injunction although there are some differences in the label marks. Moreover, the factual aspects of this case would show that the plaintiff has been using the trademark MOTHI since 1971, whereas the defendant is a recent entrant and their trademark was also not registered. In fact, in the decision reported in 2007 (34) PTC 66 (Del) - FMI Limited v. Ashok Jain and Ors., it has been held that if the Court has come to a prima facie conclusion on the comparison of the two trademarks that the usage of the trade mark of the defendant is likely to deceive or cause confusion in the mind of the consumers, that would suffice to grant interim injunction. The actual confusion or deception is not necessary. Mere likelihood of creating confusion would itself be sufficient to grant interim injunction. In the instant case, on a comparison of the two marks viz., MOTHI and MOHIT, prima facie, this Court is of the opinion, certainly the trade mark of defendant MOHIT would create confusion in the mind of the consumers. Therefore, I am of the opinion, since prima facie case has been made out by the plaintiff and the balance of convenience is also in favour of the plaintiff, if the order of interim injunction already granted by this Court is not continued, then the plaintiff would suffer from irreparable loss and hardship and hence, the plaintiff is entitled for continuation of the interim injunction. 13. 13. With regard to the second fold of submission made by the learned counsel appearing for the defendant that in Sanskrit the defendant's trademark MOHIT means and denotes happiness, charm, depiction of the lord of happiness "Monmohita Krishna", whereas the plaintiff's trademark MOTHI means and denotes pearl, I am of the opinion, the ordinary purchasers are not going to purchase the products by understanding the meaning of each and every word. Therefore, the submission made by the learned counsel appearing for the defendant that in Sanskrit, the meaning of the word MOTHI is totally different from the meaning of MOHIT cannot be a defence to deny interim injunction. 14. Hence, for the foregoing reasons, the order of interim injunction already granted by this Court in O.A.No.1018 of 2014 in C.S.No.823 of 2014 dated 16.12.2014 is made absolute and there shall be an order of interim injunction as prayed for in O.A.No.1017 of 2014 in C.S.No.823 of 2014 pending the suit.