Case Note & Summary
The Plaintiffs, Arviva Industries (India) Ltd., filed a suit seeking an injunction against the Defendants, Vikas M. Tulsian and others, alleging infringement of their registered trademark VIVA and passing off. The Plaintiffs claimed that the Defendants were selling readymade garments under the marks VIVACITY, VIVZ, and variants such as VIVZ GURLZ, VIVZ 79, and VIVZ GALZ, which were deceptively similar to VIVA. The Plaintiffs also alleged that the Defendants were advertising on the website www.vivacity.co.in, violating their trademark rights. The Plaintiffs sought damages of Rs. 50,000 and delivery of infringing goods for destruction. The court examined the marks and found that VIVACITY and VIVZ are not visually, phonetically, or structurally similar to VIVA. The prefix 'VIV' is common in trade and does not create confusion. The Plaintiffs failed to provide evidence of actual use of their mark VIVA in the market or any instances of confusion among consumers. The court held that without evidence of use or reputation, no case of passing off is made out. The balance of convenience was in favor of the Defendants, who had been using the impugned marks. Consequently, the court dismissed the Notice of Motion, refusing the interim injunction.
Headnote
A) Trade Marks - Infringement - Deceptive Similarity - Sections 29, 134 Trade Marks Act, 1999 - The court considered whether the marks VIVACITY and VIVZ are deceptively similar to the registered mark VIVA. The court held that the marks are not visually, phonetically, or structurally similar, and the prefix 'VIV' is common to trade. The Plaintiffs failed to establish a prima facie case of infringement. (Paras 1-10) B) Passing Off - Common Law - No Evidence of Use - The Plaintiffs claimed passing off but did not provide evidence of actual use of their mark VIVA in the market or any confusion. The court held that without evidence of use or reputation, no case of passing off is made out. (Paras 1-10) C) Interim Injunction - Balance of Convenience - The court found that the balance of convenience was in favor of the Defendants, as the Plaintiffs had not used the mark and the Defendants had been using the impugned marks. The injunction was refused. (Paras 1-10)
Issue of Consideration
Whether the Defendants' use of marks VIVACITY and VIVZ amounts to infringement of the Plaintiffs' registered trademark VIVA and passing off of goods.
Final Decision
Notice of Motion dismissed. No interim injunction granted.
Law Points
- Trademark infringement
- passing off
- deceptive similarity
- interim injunction
- balance of convenience
