The central legal point established in the judgment is that in cases of trademark infringement, the likelihood of confusion and deception among the public must be supported by evidence. The court emphasized the need for actual evidence of confusion and deception to establish infringement and passing-off.

JUDGMENT

Prithviraj K Chavan, J. - Feeling aggrieved with rejection of an application-Exhibit 5 in Regular Civil Suit No.01 of 2019 for temporary injunction by the Ad-hoc District Judge-6, Pune on 19th July, 2019, the appellant has preferred this appeal under Order- XLIII, Rule-1 (r) of the Code of Civil Procedure, 1908 (for short 'C.P.C').

2. Facts germane for disposal of the appeal can be summarized as follows;

Appellant No.1 is a registered proprietor and owner of the trademark "atmantan-be transformed". Appellant No.1 has given exclusive right to use the said trademark to appellant No.2 since 2009. Appellant No.2 is a Company incorporated under the Companies Act, 1956. Appellant No.2 is running a Luxury Wellness Destination in Mulshi, near Pune in the name and style as "atmantan be transformed". It deals in human health, hygiene, beauty care and hospitality. The appellants state that they have been providing health, medical, spa services, hygienic and beauty care since long time. They are well known for their high degree of professional management at every level and quality of unmatched services.

3. It is the contention of the appellants that as it's trade name itself suggests that it is a wellness resort in its retreat philosophy is an amalgamation of concepts of atma (soul), mana (mind) and tan (body). They have Doctors and experts in Ayurveda, Indian Naturopathy, Chinese Medicine, Energy Healing, fitness, Physiotherapy and cuisine. The trademark of the appellants is well known and well perceived by the public with trust and conviction.

4. The appellants had filed an application for registration of trademark for "atmantan be transformed" under class 44 under the Trademark Act, 1999 bearing No.3084414 on 21st October, 2015. It is a registered trademark under the Trademark Act, 1999 bearing Certificate No.1615440.

5. According to the appellants, they have been recipients of many awards due to their hard work, dedication and unmatched standards.

6. The respondent has moved an application for the trademark registered under similar brand name viz; "TanMan" which bears application No.3716564 under class:44. The respondent claims to be the proprietor of the said trade name. The respondent has moved an application for registration on 1st January, 2018. It is the contention of the appellants that the name of the respondent's mark is deceptively similar and almost identical to that of the appellants. The only difference between the two marks is that the respondent's mark "TanMan" is a mere re-arrangement of appellants' mark 'atmantan be transformed". The appellants contended that the respondent has very smartly and with mala fide intention has adopted word "TanMan" as his trade name. Adoption and use of the infringing mark is direct infringement of the registered mark of the appellants. Such adoption has created and is creating confusion among the customers and the public at large.

7. A legal notice dated 22nd February, 2018 was served upon the respondent directing him to refrain from using and displaying the infringing mark and the associated name anywhere in public and not to carry out activities or render services under the infringing mark.

8. Thus, according to the appellants, the respondent has caused infringement and passing-off, of the goodwill of the trademark of the appellants by using in the course of their trade/business a mark which is identical with or deceptively similar to the appellants' mark which is likely to cause confusion among the general public.

9. The respondent, however, has denied almost all the averments of the plaint in his written statement and reply.

10. At the outset, the respondent has prayed for dismissal of the suit itself as neither it discloses a cause of action nor there is proper and correct valuation of the suit, in the sense, that though the appellants have prayed for permanent injunction as well as damages, however, Court fees have been paid only for the relief of damages and not for the relief of te