Case Note & Summary
The present appeal arises from an order dated 15/02/2018 passed by the learned District Judge-8, Nagpur, allowing an application for temporary injunction (Exhibit-5) in Trade Mark Suit No.02/2017. The respondent/plaintiff, M/s Plasto Containers (I) Pvt. Ltd., filed a suit for permanent injunction restraining the appellant/defendant, M/s Plaxo Pipes and Films Pvt. Ltd., from using the trademark 'PLAXO' or any deceptively similar mark, alleging infringement of its registered trademarks 'PLASTO' under Nos.1133438 in Class-21 and 1631766 in Class-19. The respondent claimed that the appellant's mark 'PLAXO' is phonetically and structurally similar to 'PLASTO', and both parties deal in building materials, leading to confusion among consumers. The appellant contended that 'PLAXO' is a coined word derived from its corporate name and is distinct from 'PLASTO', which is a common term for plastic. The trial court granted temporary injunction, restraining the appellant from using the mark 'PLAXO'. Aggrieved, the appellant filed the present appeal. The High Court examined the rival marks and found that they are deceptively similar, as the difference of one letter does not alter the overall phonetic and structural impression. The court noted that the respondent's trademark is registered and the appellant's mark is used for identical goods. Applying the principles of prima facie case, balance of convenience, and irreparable loss, the court held that the trial court's order was justified and did not suffer from any perversity or illegality. The appeal was dismissed, and the interim order was confirmed.
Headnote
A) Trade Marks Act, 1999 - Infringement - Deceptive Similarity - Sections 28, 29 - The court considered whether the mark 'PLAXO' is deceptively similar to the registered mark 'PLASTO' - Held that phonetic and structural similarity between the marks is sufficient to cause confusion in the mind of an unwary purchaser, especially when both marks are used for identical goods (building materials) - The trial court's finding of prima facie case, balance of convenience in favor of the plaintiff, and irreparable loss was upheld (Paras 2-21).
B) Civil Procedure Code, 1908 - Temporary Injunction - Order 39 Rules 1 and 2 - The appellate court examined the parameters for grant of temporary injunction - Held that the trial court had correctly applied the principles of prima facie case, balance of convenience, and irreparable injury - The appeal was dismissed as no perversity or illegality was found in the impugned order (Paras 22-24).
Issue of Consideration
Whether the learned District Judge was justified in granting temporary injunction restraining the appellant from using the trademark 'PLAXO' on the ground that it is deceptively similar to the respondent's registered trademark 'PLASTO'.
Final Decision
The appeal is dismissed. The order dated 15/02/2018 passed by the learned District Judge-8, Nagpur, granting temporary injunction in Trade Mark Suit No.02/2017 is confirmed. No order as to costs.
Law Points
- Trademark infringement
- deceptive similarity
- temporary injunction
- prima facie case
- balance of convenience
- irreparable loss
- phonetic similarity
- structural similarity
- Trade Marks Act
- 1999 Sections 28
- 29
- 134
- 135
- Code of Civil Procedure
- 1908 Order 39 Rules 1 and 2
Case Details
2023 LawText (BOM) (03) 141
Appeal Against Order No. 36 of 2018
Shri Anand Jaiswal, Senior Advocate, Assisted by Ms Sandhya Maniyar, Advocate for applicant; Shri G.B. Sawal, Advocate a/w Shri Yash Kataria, Advocate for respondent
M/s Plaxo Pipes and Films Pvt. Ltd.
M/s Plasto Containers (I) Pvt. Ltd.
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Nature of Litigation
Appeal against order granting temporary injunction in a trademark infringement suit.
Remedy Sought
The appellant sought to set aside the order dated 15/02/2018 granting temporary injunction restraining it from using the trademark 'PLAXO'.
Filing Reason
The appellant was aggrieved by the trial court's order allowing the respondent's application for temporary injunction.
Previous Decisions
The learned District Judge-8, Nagpur, allowed the application for temporary injunction (Exhibit-5) in Trade Mark Suit No.02/2017 on 15/02/2018.
Issues
Whether the mark 'PLAXO' is deceptively similar to the registered trademark 'PLASTO'?
Whether the trial court correctly applied the principles for grant of temporary injunction?
Submissions/Arguments
Appellant argued that 'PLAXO' is a coined word derived from its corporate name and is not deceptively similar to 'PLASTO', which is a common term for plastic. The appellant also contended that the respondent's trademark is not distinctive and that the balance of convenience is in favor of the appellant.
Respondent argued that 'PLAXO' is phonetically and structurally similar to 'PLASTO', and both are used for identical goods, causing confusion. The respondent has a registered trademark and a prima facie case, and the balance of convenience is in its favor.
Ratio Decidendi
The court held that for grant of temporary injunction, the plaintiff must establish a prima facie case, balance of convenience in its favor, and irreparable loss. In trademark infringement cases, phonetic and structural similarity between marks used for identical goods is sufficient to establish deceptive similarity. The trial court's order was based on proper appreciation of evidence and law, and no interference was warranted.
Judgment Excerpts
The present application is filed being aggrieved by the order dated 15/02/2018 passed by the learned District Judge-8, Nagpur allowing the application for grant of temporary injunction filed by the respondent/original plaintiff vide Exhibit-5 in Trade Mark Suit No.02/2017.
The respondent/plaintiff herein has filed a suit being Trade Mark Suit No.02/2017 for an order of permanent injunction, whereby restraining the present appellant/defendant... from manufacturing, selling, offering for sale, advertising, directly or indirectly dealing in building material products or goods of any description bearing the trademark and/or trade name 'PLAXO' or similar to the plaintiff's trademark 'PLASTO' amounting to infringement of its registered trademark 'PLASTO' under Nos.1133438 in Class-21 and Nos.1631766 in Class-19.
Procedural History
The respondent/plaintiff filed Trade Mark Suit No.02/2017 before the District Judge-8, Nagpur, seeking permanent injunction against the appellant/defendant for trademark infringement. Along with the suit, the respondent filed an application (Exhibit-5) for temporary injunction. The learned District Judge allowed the application on 15/02/2018. Aggrieved, the appellant filed the present Appeal Against Order No.36 of 2018 before the Bombay High Court, Nagpur Bench. The High Court heard the appeal and dismissed it on 24/03/2023.
Acts & Sections
- Trade Marks Act, 1999: 28, 29, 134, 135
- Code of Civil Procedure, 1908: Order 39 Rules 1 and 2
