Case Note & Summary
The plaintiff, Sunil Manikchand Kasliwal, filed a suit for trade mark infringement against the defendant, Rahul Uttam Suryavanshi, alleging that the defendant's use of the trade mark 'SUPER MOR CHHAP' for lime plaster was deceptively and phonetically similar to the plaintiff's registered trade mark 'MOR CHHAP'. The plaintiff claimed to be the registered proprietor of the trade mark 'MOR CHHAP' under the Trade and Merchandise Act, 1958, with registration valid until 24th April 2015, and had been using the mark for over 28 years. The plaintiff's artistic work included the words 'MOR CHHAP' in Devnagri script and a peacock device. The defendant started using 'SUPER MOR CHHAP' for similar goods, leading the plaintiff to file a suit. The trial court granted an interim injunction restraining the defendant from using 'SUPER MOR CHHAP' until the decision of the suit, allowing the defendant to use any other different trade mark. The defendant appealed. The High Court considered the issues of deceptive similarity, phonetic similarity, and the validity of the interim injunction. The court noted that the plaintiff's trade mark was registered and the defendant had not challenged the registration. The court found that the marks were phonetically and deceptively similar, and the addition of 'SUPER' did not distinguish them. The court held that the plaintiff had made out a prima facie case, the balance of convenience was in favour of the plaintiff, and the plaintiff would suffer irreparable loss if the injunction was not granted. The court also noted that the defendant had not used the mark prior to the plaintiff's registration. The High Court dismissed the appeal, upholding the trial court's order of interim injunction.
Headnote
A) Trade Mark Law - Infringement - Deceptive Similarity - Sections 28, 29 Trade and Merchandise Act, 1958 - The plaintiff, registered proprietor of 'MOR CHHAP' for lime plaster, sought injunction against defendant's use of 'SUPER MOR CHHAP' - The court held that the marks are phonetically and deceptively similar, and the addition of 'SUPER' does not distinguish them - The plaintiff's registration and prior use established a prima facie case, balance of convenience in favour of plaintiff, and irreparable loss if injunction not granted (Paras 2-10). B) Trade Mark Law - Interim Injunction - Prima Facie Case - Balance of Convenience - Irreparable Loss - The court affirmed the trial court's finding that the plaintiff had made out a strong prima facie case, balance of convenience was in favour of plaintiff, and plaintiff would suffer irreparable loss if injunction was not granted - The defendant was not using the mark prior to the plaintiff's registration (Paras 11-15).
Issue of Consideration
Whether the learned trial judge was justified in granting an interim injunction restraining the defendant from using the trade mark 'SUPER MOR CHHAP' on the ground that it is deceptively and phonetically similar to the plaintiff's registered trade mark 'MOR CHHAP'.
Final Decision
The High Court dismissed the appeal and upheld the order of the learned District Judge 3, Malegaon dated 8th June, 2016 granting interim injunction restraining the defendant from using 'SUPER MOR CHHAP' until the decision of the suit.
Law Points
- Trade mark infringement
- deceptive similarity
- phonetic similarity
- interim injunction
- balance of convenience
- irreparable loss
- registration certificate
- prior use
- Trade and Merchandise Act
- 1958
