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IN THE HIGH COURT OF BOMBAY
R. I. CHAGLA
Everest Food Products Pvt. Ltd. – Appellant
Versus
Shyam Dhani Industries Pvt. Ltd. – Respondent
ORDER :
1. By this Interim Application, the Applicant/Plaintiff has sought injunction against the Defendants for infringement of its registered trademarks and for passing off. For combination of the cause of action of infringement of trademark and passing off and since the Defendants are having their registered office outside the jurisdiction of this Court. Leave has been sought under Clause XIV of the Letters Patent. There is no Reply to the Letters Patent Petition. Further, this Court has jurisdiction to try, entertain and dispose of the captioned Suit for cause of action for infringement of trademark. In order to avoid multiplicity of proceedings, leave is granted under Clause 14 of the Letters Patent and accordingly the Letters Patent Petition is allowed.
2. The Plaintiff has stated that it is a company engaged in the business of inter alia manufacturing, producing, processing, exporting, importing buying, selling, distributing and dealing in all kinds and types of food products including all types of whole, pure and blended masalas, spices, herbs, seasonings and condiments for Indian dishes and international cuisines. The Plaintiff was earlier operating as a Partnership firm in
Important Point :The use of a trademark that is phonetically and visually similar to a registered trademark can lead to confusion, constituting infringement, especially when dishonest conduct is evid....
The court found that despite phonetic similarity, the distinctiveness of trade marks and differences in intended consumer bases negate the likelihood of confusion and passing off.
A plaintiff must use their registered trademark to claim infringement; failure to do so undermines the basis for an injunction.
Point of Law : Section 27 of Trade Marks Act provides that no action for infringement will lie in respect of an unregistered trade mark.
The principle of prior user of a trademark prevails over subsequent registrations, especially when confusion or association is likely between goods and services of similar trade sectors.
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