Point of law: Trade mark copyright - Where there is/are a common element/elements in the marks of plaintiff and defendant which is also contained in a number of other marks in use in the same market, whether such a common occurrence in the market tends to cause purchasers to pay more attention to the other features of the respective marks and to distinguish between them by those features

JUDGMENT :

This is a miscellaneous first appeal filed under Order XLIII Rule 1(r) of the Code of Civil Procedure, 1908 (‘CPC’, for brevity) calling in question the legality and correctness of the order dated 21.12.2020 on I.A.Nos.2 to 4 filed by the respondent herein in O.S.No.6811/2019 passed by the learned XVIII Additional City Civil Judge (CCH No.10) Bengaluru City.

2. The defendant is the appellant and the plaintiff is the respondent herein. During the course of this judgment, parties shall be referred to as per their ranks before the Court below.

3. The plaintiff in the suit in O.S.No.6811/2019 has contended that she is doing business under the name ‘Matru Ayurveda’ and the defendant is doing business under the name ‘Matruveda’. She further contended that the trademark of the defendant is so deceptively similar to the trade mark of plaintiff that in spite of she having established her business ever since the year 2015 on the strength of her trademark ‘Matru Ayurveda’, on account of the defendant starting his business subsequently in the year 2018 with his trademark ‘Matruveda’, her established customers got deceived and on account of same, she has suffered huge losses in the business and therefore, she prayed for a decree of permanent injunction to restrain the defendant from infringing plaintiff’s established registered trademark ‘Matru Ayurveda’ by using the offending trademark ‘Matruveda’ in the preparation, sale and distribution of herbal products or by using any other mark in respect of such products that is deceptively similar to the plaintiff’s well established and registered trademark ‘Matru Ayurveda’.

4. In the said suit, the plaintiff has filed applications viz., I.A.Nos.2 to 4 under Order XXXIX Rule 1 and 2 of CPC and upon the defendant filing his objections and after hearing, the learned Court below has allowed the applications by order dated 21.12.2020 granting temporary injunction restraining the defendant from infringing and passing off of the plaintiff’s registered trademark and trade name ‘Matru Ayurveda’ by using the offending trademark ‘Matruveda’ in the preparation, sale and distribution of herbal products or by using any other mark in respect of such other products that is deceptively similar to the trademark of the plaintiff’s mark ‘Matru Ayurveda’ during the pendency of the suit. Being aggrieved by the said order, the defendant has filed the above appeal.

5. I have heard the learned counsel on both sides and I have perused the appeal papers, documents produced along with the same and list of authorities produced by both the sides.

6. The learned counsel for the defendant/appellant contended that the learned Court below has fallen into an error in coming to the conclusion that trade mark of the defendant is deceptively similar to the trademark of the plaintiff. He further submitted that the plaintiff had started her business under the trade name and trademark ‘Matru Ayurveda’ which is laid inside a logo and similarly, the defendant had started his business under the trade name ‘Matruveda’ with a logo and there is no such resemblance between the same as will lead any purchaser of the products of either parties to confuse between the same. The learned counsel for the defendant also contended that he had no opportunity of producing documents in support of his stand that the trademark of the defendant is not deceptively similar to the trademark of the plaintiff and further that there were several manufacturers who are using trademarks closely similar to the trademark of the plaintiff and the defendant with the prefixes ‘Matru’. In support of his contentions, he has placed reliance on the following decisions:

i). MERCK KGAA Vs. GALAXY HOMPRO -2012(5) ILR (DELHI) 1.

ii). M/s. THIRU VALLUVAR MODERN RICE MILL (A

PARTNERSHIP FIRM) Vs. R.B.CHIDAMBARASAMY 2018 (73) PTC 149.

(iii). SHREE BALAJI CHEMICALS SAFIDON AND OTHERS Vs. BALDEV RAJ GIRIDHAR AND OTHERS -2016 (3) PLR 261.

7. Per contra, the learned counsel appearing fo