JUDGMENT : Krishna Rao, J. 1. The plaintiff has filed the instant application for grant of injunction restraining the defendant and each of them, their servants, agents, assigns, distributors, stockists, dealers and all others acting for and on their behalf from any way or manner infringing the plaintiff’s trademarks “KHAITAN” and any other words or get up identical or deceptively similar to the plaintiff’s trademark and other reliefs. 2. The plaintiff is engaged in the business of trading and marketing of domestic and industrial fans, pumps, industrial products and appliances since 1970 and since then, the plaintiff has excelled in its business of trading and marketing of its products. The products of the plaintiff have been synonymous with excellent quality of fans and other products in India. The plaintiff’s goods have acquired immense goodwill and reputation in the market. 3. In order to built up a brand of its own and to distinguish its products with the other products in the market, in the year 1970, the plaintiff coined and adopted an innovative and distinctive mark, being “KHAITAN” with the word “KHAITAN’ written in red colour in a stylized manner and a visual representation of a fan placed above the letter “i” in the mark. The said mark consists of a distinct colour and font, represented in a distinctive manner. 4. The petitioner duly applied for registration of the mark “KHAITAN” in various forms, fonts and languages on and from 2nd June, 1981 and was subsequently granted registration in respect of the said mark. The products bearing the mark “KHAITAN” are identified with the plaintiff and the plaintiff alone. The plaintiff invests large amount of money in advertising its product bearing the mark “KHAITAN”. The petitioner has achieved phenomenal sales in respect of its goods sold under the mark “KHAITAN”. The turnover of the plaintiff during 2019-2020 was Rs. 5708.51 lacks. By the reasons of quality of such products and the efforts of the plaintiff, the products sold bearing the mark “KHAITAN” has acquired tremendous goodwill and reputation in the market. 5. In the month of June’ 2020, the plaintiff came to know that the defendants have slavishly imitated the unique and distinctive mark of the petitioner and are applying the mark “KHAITAR” in respect of its products. The said mark “KHAITAR” is phonetically, visually and structurally similar and deceptively similar to the mark of the plaintiff “KHAITAN”. 5. In the month of June’ 2020, the plaintiff came to know that the defendants have slavishly imitated the unique and distinctive mark of the petitioner and are applying the mark “KHAITAR” in respect of its products. The said mark “KHAITAR” is phonetically, visually and structurally similar and deceptively similar to the mark of the plaintiff “KHAITAN”. The plaintiff further came to know that defendants have adopted the plaintiff’s distinctive mark for its products, majorly electric fans. 6. On further search in the Trade Mark Registry, the plaintiff came to know that the defendant no. 2 being one of the director of the defendant no.1 Company had applied for registration of the mark “KHAITAR’ on 13th September, 2017 as a proprietor of one ‘Rajguru Industries’ and has obtained registration fraudulently by claiming to be an user since 1st April, 2011. 7. The plaintiff through its Advocate had issued a notice on 8th June, 2020 to the defendant no. 1, calling upon the defendant no. 1 to cease and desist from using the deceptively similar mark “KHAITAR”. On receipt of the notice, the defendant had sent a reply on 22nd July, 2020 and refused to cease and desist from using the deceptively similar mark. 8. The adoption and use of the distinctive trademark by the defendants are wrongful, dishonest and only an attempt to deceive the customers into believing that they are connected with the plaintiff. 9. The defendants have filed their affidavit-in-opposition and the case of the defendants is that the marks “KHAITAN” and “KHAITAR” are registered trade mark under Class 11 and therefore, infringement does not lie in view of Section 28(3) of the Trade Marks Act, 1999. 10. The defendant no. 2 is the sole proprietor carrying on business interalia, manufacturing, trading and selling of fans of different varieties under the name and style of “Rajguru Industries”. The defendant no. 2 invented and coined the mark “KHAITAR” for his products on 1st April, 2011 and since then the defendant no. 2 is continuously and uninterruptedly using the mark “KHAITAR” for his goods and products. In order to protect statutory rights, the defendant no. 2 has obtained registration of the mark “KHAITAR”. 11. On 29th August, 2017, the defendant no.1 was incorporated under the provisions of Companies Act, 2013 and the defendant no. 2 has become one of the promoters directors of the defendant no. 1 company. In order to protect statutory rights, the defendant no. 2 has obtained registration of the mark “KHAITAR”. 11. On 29th August, 2017, the defendant no.1 was incorporated under the provisions of Companies Act, 2013 and the defendant no. 2 has become one of the promoters directors of the defendant no. 1 company. In short span of time, the defendants acquired a goodwill and reputation in the market in connection with the goods or products sold under the mark “KHAITAR” and the said mark become well known in the market in connection with electrical fans. 12. It is submitted that there is no similarity between two marks “KHAITAN” and “KHAITAR”, phonetically, visually and by structure. The sales turnover of the said goods and products are increasing day by day and for the year 2020-2021 the sale figure was 2,93,71,348/-. 13. It is submitted that there is no resemblance between the two marks and there is no likelihood of deception and confusion in the minds of the public at large and a man of average intelligence can easily distinguish the two mark “KHAITAN” and “KHAITAR” visually and also by pronunciation. It is further submitted that the defendant no. 2 is the registered proprietor of the mark “KHAITAR” and has exclusive right to use the mark personally or by his permitted user. 14. The main bone of the contentions between the parties before me is whether the defendant's mark is deceptively similar to the plaintiff's mark. To adjudicate this issue, it would be appropriate to recapitulate some well-established principles. 15. In James Chadwick & Bros. Ltd. v. The National Sewing Thread Co., reported in AIR 1951 Bom 147 , the Division Bench of this Court held that what is important is to find out what is an essential feature of the trade mark already registered and what is the main feature or idea under-lying such trade mark, and ascertain if the trade mark whose registered contains the same distinguishing or essential feature or conveys the same idea. The relevant question to be asked is, what would be the salient feature of the trade mark which would lead the purchaser to associate the particular goods with that trade mark? 16. In Corn. Products Refining Co. The relevant question to be asked is, what would be the salient feature of the trade mark which would lead the purchaser to associate the particular goods with that trade mark? 16. In Corn. Products Refining Co. v. Shangrila Food Products Ltd. reported in AIR 1960 SC 142 , it was held that “Glucovita” and “Gluvita” were deceptively similar while observing that in deciding question of similarities between two marks. The approach must be from the point of view of a man of average knowledge and imperfect recollection. To such a person, the overall structural and phonetic similarity and the similarity of the idea in the two marks are reasonably likely to cause confusion between them. 17. In Amritdhara Pharmacy v. Satya Deo Gupta reported in AIR 1963 SC 449 that the Hon'ble Apex Court considered overall structural and phonetic similarity between two names, “Amritdhara” and “Lakshmandhara”, which was likely to cause confusion for unwary purchaser of average intelligence and imperfect recollection. It was held that if a person is put in wonderment, it is sufficient to hold that mark is likely to deceive or confuse. 18. In F. Hoffimann-La Roche & Co. Ltd. v. Geoffrey Manners & Co. Private Ltd. reported in (1969) 2 SCC 716 : AIR 1970 SC 2062 , the Hon'ble Apex Court has held that marks must be compared as a whole. The true test is whether the totality of the trade mark is such that it is likely to cause deception, confusion, or mistakes in the minds of the persons accustomed to the existing trade mark. It is held that microscopic examination is not necessary. Both tests, visually and phonetic, must be applied. 19. In Parle Products (P) Ltd. v. J.P. and Co., Mysore reported in (1972) 1 SCC 618 : AIR 1972 SC 1359 that the Hon'ble Apex Court has held that what must be considered are the broad and essential features of two trademarks, which should be placed side by side in order to find out any differences in design. It is enough if the impugned trade mark bears such an overall similarity to the registered mark as it would be likely to mislead a person usually dealing with one, to accept the other if offered to him. It is enough if the impugned trade mark bears such an overall similarity to the registered mark as it would be likely to mislead a person usually dealing with one, to accept the other if offered to him. Each case must be judged on its own features, and it would be of no use to note how many points there were in similarity and how many others there were in the absence of it. 20. The Hon'ble Apex Court, in a recent judgment in the case of Renaissance Hotel Holdings Inc. v. B. Vijaya Sai reported in (2022) 5 SCC 1 has held that in action for infringement, once it is found that the defendant's trade mark was identical with the plaintiff's registered trade mark, the Court could not have gone into an enquiry whether the infringement is such as is likely to deceive or cause confusion. In an infringement action, an injunction would be issued as soon as it is proved that the defendant is improperly using the trade mark of the plaintiffs. It is held that the question to be asked in an infringement action is as to whether the defendant is using a mark which is the same as or which is a colourable imitation of the plaintiff's registered trade mark. It is held that though the get-up of the defendant's goods may be so different from the plaintiff's goods and the prices may also be so different that there would be no probability of deception of the public, nevertheless, even in such cases, i.e. in an infringement action, an injunction would be issued as soon as it is proved that the defendant is improperly using the plaintiff's mark. It is not necessary to prove actual deception or any actual damage. 21. In the light of principles of law established in the aforesaid judgments, it is necessary to consider essential features of marks in the present case. 22. The mark of the plaintiff and the defendants are as follows : Plaintiff’s mark Khaitan : Defendant’s mark Khaitar : 23. On close scrutiny of marks placed side by side based on well-established principles, the question that arises for consideration is what would be the effect on the mind of a person of average intelligence and imperfect recollection? 22. The mark of the plaintiff and the defendants are as follows : Plaintiff’s mark Khaitan : Defendant’s mark Khaitar : 23. On close scrutiny of marks placed side by side based on well-established principles, the question that arises for consideration is what would be the effect on the mind of a person of average intelligence and imperfect recollection? Applying the test with well-established principles summarized in an earlier paragraph, there can be no manner of doubt that the defendant's label/mark is deceptively similar to the plaintiff's mark. It would be highly improbable to expect an ordinary person of average intelligence and imperfect recollection to recall the exact nature and features of the plaintiff's mark before being led into confusion with the defendant's mark and consequently purchasing the defendant's fan in the belief that he is purchasing plaintiff's fan. It is a well-settled principle of law that the duties of the Court are not to compare two marks as they were side by side, with a view to find out if there are differences or dissimilarities. What is essential is whether ordinary purchasers going about their normal affairs would be liable to be deceived into believing that the fan he purchased from a shop, not under a microscope or upon careful evaluation, is a product of plaintiff. Apart from using the word “Khaitan” instead of “Khaitar”, the features would lead the purchasers to associate the plaintiff's product with the defendant's brand. In view of the well-settled position in law that the Court must have regard for all the surrounding circumstances and the overall similarities of the two marks, there can be no doubt whatsoever that the product of the defendant, prima facie, is deceptively similar to that of plaintiff's and is likely to cause confusion and deception. 24. The phonetic similarity between “Khaitan” on the one hand and on “Khaitar” on the other is strikingly similar. The two marks are phonetically, visually and structurally similar. Phonetic similarity constitutes an important factor to ascertain as to whether the mark “Khaitar” on the other is strikingly similar. The two marks are phonetically, visually and structurally similar. Phonetic similarity constitutes an important factor to ascertain as to whether the mark bears deceptive or misleading similarity to another. The phonetic structure indicates how rival mark sounds. The overall impact in terms of phonetic use is strikingly similar. The two marks are phonetically, visually and structurally similar. Phonetic similarity constitutes an important factor to ascertain as to whether the mark bears deceptive or misleading similarity to another. The phonetic structure indicates how rival mark sounds. The overall impact in terms of phonetic use is strikingly similar. The phonetic, visual and structural get-up of two words is so structurally similar that it would lead to the likelihood of deception. The respondent has no bona fide and logical explanation for adopting such a mark. This is not a case where it can be said that there is the bona fide, honest and concurrent use of the mark by the defendant. 25. The test of phonetic similarity was accepted in the judgment of the Hon'ble Apex Court in the case of Amritdhara Pharmacy (supra). This principle is reiterated in the judgment of the Hon'ble Apex Court in the case of Cadila Health Care Ltd. v. Cadila Pharmaceuticals Ltd. reported in (2001) 5 SCC 73 : ( AIR 2001 SC 1952 ). The three judges bench of the Hon'ble Apex Court in Cadila Health Care (supra) has held that the principle of phonetic similarity is to be jettisoned when the manner in which the words are written. However, the Court held that in both Amritdhara Pharmacy (supra) and Kaviraj Pandit Durga Dutt Sharma v. Navaratna Pharmaceutical Laboratories ( AIR 1965 SC 980 ), the relevancy test of phonetic similarity is relevant. 26. In these circumstances, the plaintiff has established a prima facie case for grant of injunction. The essential requirement in action for infringement that the defendant's trade mark is identical to the plaintiff's trade mark has been established. The balance of convenience lies in favour of plaintiffs. 27. In the result and in view of the forgoing discussions, prayers (a) to (g) of the Notice of Motion being GA No. 1 of 2020 are allowed. 28. Mr. Aritra Basu, Learned Advocate is appointed as a Special Officer with respect of the infringing products and deceptively similar packages of the plaintiff and to take symbolic possession from the place of business of the defendant i.e. Khaitar House, 1st Floor, 5-9-262/E, Rajiv Gandhi Nagar, I.E, Kukatpally, Hyderabad – 500072, Telangana and Survey No. 376, Rajiv Gandhi Nagar, I.E. Kukatpally, Hyderabad, Ranga Reddy – 500072 and from the factories and to make inventories of the same. 29. The plaintiff shall pay Rs. 29. The plaintiff shall pay Rs. 2,00,000/- as remuneration of the Special Officer for the present. The Special Officer is directed to file his report within six weeks. 30. GA No. 1 of 2020 is thus allowed.