The use of numerals in a trademark can constitute an essential feature of the trademark and may be protected against infringement, even if the numerals are not inherently distinctive.

( 1 ) BY the order under appeal, the learnedingle Judge on the original side has vacated an interim ex parte injunction granted to the appellant in a suit for permia,nent injunction filed by him against the respondent on the allegations of infringement and passing off in respect of his registered trade mark in relation to agarbatis etc.

( 2 ) THE learned single Judge ha. s held that the appellant had failed to establish any exclusive right in regard to the use of the numerals 555 appearing in his registered trade mark in respect of agarbatis and that at this stage it could not be said th (a,t these numerals 555 were the distinctive or essential features of his trade mark. He further observed that as the respondent had not copied the respondents trade mark as a whole, no case for injunction was made out.

( 3 ) BEFORE dealing with the merits, it would be appropriate to notice the legal aspect of the questions that require consideration for the decision of the controversy.

( 4 ) IN M/s. Atlas Cycle Industries Lid. v. Hind Cycle Limited :i. L. R. (1973) Delhi 393 on page 405 this Court has said :

"in an action for an alleged infringement. of a registered trade mark. it has first to be seen whether the impugned mark. of the defendent is identical with the registered mark of the plaintiff. If the mark is found to be identical, no further question arises, and it has to be held that there was infringeme. If the mark of the defendent is not identical, it has to be seen whether the mark of the defendant is receptively similar in the sense I hat it is likely to deceive or cause confusion in relation to goods in rcspect of which the plantiff got his mark registered. For that purpose, the two marks have to be compared, not by placing them side by side. but by asking itself whether having due regard to relevant surrounding circumstances, the defendant s mark as used is similar to the plaintiff s mark as it would be remembered by persons possessed of an average memory with its usual imperfections , and it has then to be determined whether the defendant s mark is likely to deceive or cause confusion".

( 5 ) IN Taw Manufacturing Coy. Lid. v. Notek Engineering Coy. Ltd. and another -. (1951) 68 Reports of Patent Cases 271 (2), the monopoly right claimed under the registered trade mark related to Motor Lamps and consisted of a pictorial device and the word "taw". The device comprised of a representation of the full-faced view of a cat s head, wherein the eyes were drawn in. the form of a motor ear headlamps and the whole was superimposed upon an open body motor ear viewed from the front in a manner as to substitute the cat s head for She bonnet and radiator as normally seen. The device that was the subject matter of challenge consisted of a square panel with informative particulars printed below. The panel depicted a full-faced view of a cat s head with the eyes drawn as motor car headlamps, beneath which was the caption let Notek be your eyes in fog and darkness". The disposition and lettering was such as to lead the render to lake particular notice of the device with the word "notek" beneath it. The question for decision was whether there was infringement by the latter device of the former registered trade mark. The Court held :

"a trade mark is infringed if a person other than the registered proprietor or authorised user uses, in relation to goods covered by the registration, one or more of the trade mark s essential particulars. The identification of an essential feature depends partly upon the Court s own judgement and partly upon the burden of the evidence that is placed before the Court".

( 6 ) IN James Chadwick and Bros. Lid. v. The National Sewin" Thread Co. Ltd. , A. I. R. 1951 Bombfiy 147 () the Court ruled that in an action for infringement what is important is to find out what was the distinguishing or essential feature of the trade mark already registered and what is the main feature or the main idea underlyi