Chief Justice

This appeal is directed against order dated 28 November 2012 of the learned Single Judge declining to grant ad-interim injunction in the appellant's Notice of Motion in the suit for infringement of the registered mark of the plaintiff and copyright and for passing off.

2. The products in question are playing cards. The plaintiff is the registered proprietor of the word mark "MERELANE" and a label mark of which "MERELANE NO.7" is a prominent feature. The defendant's mark is "MARICELL No.7". The learned Single Judge on perusal of the two marks came to the conclusion that there was no prima facie similarity between the words "MARELANE" and "MARICELL".

3. The appeal was admitted on 31 January 2012 and in view of history of past litigation, respondent-defendant was permitted to file affidavit-in-reply to raise all available contentions for arguing the Notice of Motion in the suit. The appeal has been taken up for final hearing and learned counsel for the parties have been heard at length on the Notice of Motion in the suit.

4. Before enumerating rival contentions, it is necessary to refer to relevant facts and also the history of litigation between these two very parties in suits filed by either the appellant-plaintiff or its sister concerns against the defendant herein, in actions for infringement of plaintiff's registered marks and for passing off.

5. The trade name "MERELANE" was registered on 17 May 1971 with Trademark No.272074 in favour of Badriprasad Gulraj Kejriwal and thereafter upon death of Badriprasad Kejriwal in 1975, the mark was registered in favour of partnership firm of his family members on 6 February 1976. Thereafter the registration was renewed in favour of successive partnership firms including M/s. Kejriwal & Sons. The last registration is in favour of Parksons Games & Sports by virtue of Deed of Assignment dated 14 September 2004 executed by M/s.Kejriwal & Sons. By order dated 29 September 2009 the said assignment was taken on record and the status of M/s. Parksons Games and Sports was reorganised and recorded by the Registrar of Trade Marks. Subsequently, as stated in the plaint, the partnership firm was incorporated as a private limited company-"Parksons Games & Sports Pvt.Ltd." on 15 September 2010 and a Deed of Assignment was executed by the partnership firm in favour of the private limited company. The said Deed of Assignment was submitted to the Registrar of Trade Marks alongwith an application for change of registration on 29 October 2010. Thereafter, the name of plaintiff-company was changed to PARKSONS Cartamundi Pvt.Ltd. on 22 January 2011. A copy of certificate of change of name is produced at Exhibit-A to the plaint. There is also registered label mark at Exhibit-J being Trademark No.1664801 which was registered in the name of M/s.Parksons Games & Sports Pvt.Ltd. on 14 March 2008 with the packet bearing the following words:

"MERELANE NO.7 PLAYING CARDS"

6. The plaintiff has also pointed out history of the litigation instituted by the plaintiff or its sister concerns against the respondent-defendant, which is summarized as follows, all the orders, except the order under appeal, having been passed against the respondent-defendant in respect of the same class being playing cards:-

7. A Division Bench of this Court in Hiralal Prabhudas v. Ganesh Trading Company and others A.I.R. 1984 BOM. 218 =1984 PTC 155 laid down the following propositions for judging deceptive similarity of products of rival trademark :-

Sr.No. Plaintiff's TradeMark Defendant's Trade Marks Date of Ad-Interim/Interim Order

1 555 MERELANEPREMIUM, 555 MERELANE DELUX, MEREDIAN 555 555 MARILYN DX 24 September 2010Appeal Order dated 18 March 2011 Order of Apex Court dated 10 May 2011

2 MERELANE No.7 No.7 MARILYAN Decree dated 14 January 2011

3. BRIDGE 575 BRIDGE 576 Ad-interim order dated 7 October 2011

4. Nylon No.7 Nilonno.7 Decree dated 12 January 2011

5. Nylon no.7 NAIKAN NO.7 Interim orde