JUDGMENT :

1. Heard.

2. ADMIT.

3. This is an appeal from order of the District Judge-7, Nagpur dismissing the application below Exh.5 filed by appellants restraining respondent from using and selling their goods “Ontime Bidi” on the identical and deceptively similar brand name of appellants.

4. The appellants are Bidi manufacturers and proprietors of Trade Mark “Online” registered under the Trade Marks Act, 1999. The appellants have been manufacturing Bidi since 2005, and one of the marks used by the appellants is "Online Bidi". On 31.08.2017, the appellants applied for registration of the aforesaid Trade Mark under the Trade Marks Act, 1999. On 04.01.2020, the Registrar of the Trade Mark registered the Trade Mark "Online Bidi" after conducting the statutory enquiry.

5. Respondent is also a manufacturer of Bidi and started using Trade Mark "Ontime" on its wrapper with an identical colour scheme as that of the appellants. On 09.06.2021, appellants filed Trade Mark Suit No.5/2021 in the Court of District Judge, Nagpur. Along with the said suit, appellants applied under Order 39 Rule 1 and 2 of the Code of Civil Procedure, seeking a temporary injunction against the respondent, his agents, servants, and relatives from using and selling the Bidi in the name of "Ontime Bidi".

6. Respondent, by reply, denied the contentions raised in the application for temporary injunction. First, it is contended that the name and packaging of the defendant's branding, "Ontime Bidi" is not identical to the Trade Mark of the plaintiffs. It is contended that plaintiffs had approached him and called upon him to change the packaging. Therefore, to avoid any legal battle and to buy peace, the respondent made some changes to the packaging material of his product. Finally, it is contended that there are no visual, phonetic or structural similarities and, therefore, prayed for rejection of the application.

7. The Trial Court rejected the application for a temporary injunction, holding that the products of the parties are not visual, phonetic and deceptively similar to each other.

8. The main bone of the contentions between the parties before me is whether the respondent's mark is deceptively similar to the appellant's mark. To adjudicate this issue, it would be appropriate to recapitulate some well-established principles.

9. In James Chadwick & Bros. Ltd. vs. The National Sewing Thread Co., reported in AIR (38) 1951 Bombay 147, the Division Bench of this Court held that what is important is to find out what is an essential feature of the trade mark already registered and what is the main feature or idea under-lying such trade mark, and ascertain if the trade mark whose registered contains the same distinguishing or essential feature or conveys the same idea. The relevant question to be asked is, what would be the salient feature of the trade mark which would lead the purchaser to associate the particular goods with that trade mark?

10. In Corn Products Refining Co. vs. Shangrila Food Products Ltd. reported in AIR 1960 SC 142, it was held that "Glucovita" and "Gluvita" were deceptively similar while observing that in deciding question of similarities between two marks. The approach must be from the point of view of a man of average knowledge and imperfect recollection. To such a person, the overall structural and phonetic similarity and the similarity of the idea in the two marks are reasonably likely to cause confusion between them.

11. In Amritdhara Pharmacy Vs. Satya Deo Gupta reported in AIR 1963 SC 449 that the Hon'ble Apex Court considered overall structural and phonetic similarity between two names, "Amritdhara" and "Lakshmandhara", which was likely to cause confusion for unwary purchaser of average intelligence and imperfect recollection. It was held that if a person is put in wonderment, it is sufficient to hold that mark is likely to deceive or confuse.

12. In F. Hoffimann-La Roche & Co. Ltd. vs. Geoffrey Manners & Co. Private Ltd. reported in AIR 1970 SC 2062