The use of a mark that is not deceptively similar to a registered trademark does not constitute infringement.

( 1 ) THIS is an appeal arising from an order passed by the Additional District Judge declining to grant injunction In favour of the plaintiff against the use or display of the title "grahlokshmi" for a Hindi magazine being published by the defendant on the plaintiffs plea that the plaintiff is already publishing a magazine under the title grahshobha which is also registered under the Trade and Merchandise Marks Act 1958 under Registered Trade Mark No. 387789 in Class 16 in respect of printed publication. It is alleged that the plaintiff has been publishing Grahshobha since January 1988 but the registration of the trade mark was granted to the plaintiff w. e. f. 18th March 1982.

( 2 ) THE argument which is put forward on behalf of the plaintiff is that notwithstanding the lack of phonetic similarity, the adoption of the name Grahlakshmi is intended to trade upon the valuable goodwill of the plaintiff s mark Grahshobha in respect of magazines because the meaning conveyed by the two terms Grahshobha and Grahlakshmi would be the same because in of the Hindi dictionaries the term lakshmi has been stated to mean Goddess of wealth and it is also stated to be known by the name, inter alia, shobha . Therefore, the class of people who read such magazines are likely to be deceived since the meaning and idea conveyed by the use of each of the said titles is the same. The argument put forward on behalf of the respondent is that there are other magazines in different regional languages which are being published under the title Grahlakshmi and Grahshobha. It is alleged that the said user of the title Grahlakshmi in diferent regional languages goes back 25 years from now and is prior in time. However, no material has been placed on record to show that the adoption of the mark Grahlakshmi by the Respondent was prior to adoption of the mark Grahshobha. Under Section 2 (1) (j) of the Trade and Merchandise Marks Act 1958, the term mark has been defined as - "mark" includes a device, brand, heading label, ticket, name signature, word, letter or numeral or any combination thereof : and the term trade Mark has also been defined in Section 2 (v) of the said Act as under :-

" (V) "trade mark" means- (i) in relation to Chapter X (other than Section 81), a registered trade mark or a mark used in relation to goods for the purpose of indicating or so as to indicate a connection in the course of trade between the goods and some person having the right as proprietor to use the mark ; and (ii) in relation to the other provisions of this Act, a mark used or proposed to be used in relation to goods for the purpose of indicating or so as to indicate a connection in the course of trade between the goods and some person having the right, either as proprietor or as registered user, to use the mark whether with or without any indication of the identity of that person, and includes a certification trade mark registered as such under the provisions of Chapter VIII;"

( 3 ) IN the cases where the trade mark has been registered, the registered proprietor of the trade mark under Section 28 of the Act enjoys exclusive right to use the trade mark in relation to the goods in respect whereof the trade mark is registered subject, however, to such conditions subject whereto the registration was granted. Section 29 of the Act provides that a registered trade mark is infringed by a person who not being the registered proprietor of the trade mark. . . uses or permits the use of a trade mark which is identical with or deceptively similar to the trade mark in relation to any goods in respect whereof the trade mark Is registered--- -. " In the present case, it would not be necessary to go into the question of passing off or the new development in law of passing of whereby unfair trading even though it does not give rised to deception or confusion or the case of sale of goods under lawful trade description can also be looked into and such activity can be restraine