The main legal point established in the judgment is that the use of a deceptively similar mark, even with marked differences in packaging and presentation, can still constitute trademark infringement if it creates a likelihood of confusion among consumers.

Pradeep Nandrajog, J.

1. Appellant – the defendant in the suit, assails the order dated July 23, 2014, allowing the application filed by the respondent - plaintiff under Order XXXIX Rule 1 and 2 of the Code of Civil Procedure granting an interim injunction against the appellant restraining the appellant from using the mark ‘D’DAAZS’ or any other mark deceptively similar to that of the respondent - plaintiff’s trade mark ‘HAAGEN-DAZS’ in relation to ice cream.

2. The respondent - plaintiff company has been incorporated under the laws of Delaware, USA and claims to be marketing, over a hundred consumer brands (processed food and ice cream), in over a hundred countries across the globe. The respondent – plaintiff company claims to be manufacturing desserts such as ice-creams and frozen yogurts under the trademark ‘HAAGEN DAZS’ which according to it is an arbitrary word having no dictionary meaning. ‘HAAGEN DAZS’ has been made available in India only since the year 2007, however, the respondent plaintiff obtained registration for the mark ‘HAAGEN DAZS’ in India in respect of ice cream, ices, sherbet, sorbet and frozen confections in class 30 with effect from January 21, 1993 and for food products in classes 29, 30 and 42 on January 01, 2008.

3. The appellant - defendant on the other hand, has been manufacturing ice-creams and frozen desserts under the name ‘D’DAAZ’ since the year 2009. It is the case of the appellant that the word ‘D’DAAZ’ is derived from the name of Late Dwarka Das, who was the father of one of the founder directors of the company. It is stated that the appellant - defendant has been supplying ice-creams across South India.

4. Since the present lis essentially hinges upon the conflict of trademarks propounded by the rival litigants, it would be incumbent upon us to juxtapose the same for the purpose of assessing whether prima-facie there exists a reasonable possibility of confusion to arise in the minds of the consumers.

Trademark of Respondent-Plaintiff Trademark of Appellant-Defendant

5. It is the case of the appellant - defendant that the respondent - plaintiff enjoys protection for its mark ‘HAAGEN DAZS’ as an indivisible whole and not for the individual elements constituting the same. Reliance has been placed on the principle of ‘anti-dissection’ consistently applied by the Courts since time immemorial while dealing with cases of trademark infringement. It has been further submitted that even if the constituting elements of the mark are considered, ‘HAAGEN’ forms the dominant part of the respondent-plaintiff’s trademark and any potential similarity with the non-dominant element ‘DAZS’ in a trademark would not amount to infringement.

6. Per contra, the respondent - plaintiff has contended that ‘DAZS’ cannot be construed as a non-dominant element of their trademark and must be accorded sufficient prominence to warrant protection. In this regard it has been highlighted that the application for registration for the mark ‘DAZS’ separately has also been filed on October 22, 2012.

7. Since we are exercising an appellate jurisdiction over the decision of a learned Single Judge of this Court, who has exercised his judicial discretion and granted injunction in favour of the plaintiff, it may be pertinent to set out the parameters for interference in such matters.

8. The United States Courts of Appeals for the Sixth Circuit in its celebrated decision reported as 1261 F.2d 759 Frisch’s Restaurant, Inc v. Shoney’s Inc, enunciated certain considerations which the Courts may bear in mind while deciding the plea of injunction in cases of trademark infringement. It was observed as under:-

“[5] This circuit has enunciated four elements which must be considered and "carefully balanced" in deciding to issue or withhold a preliminary injunction. Mason County Medical Ass'n v. Knebel, 563 F.2d 256, 264 (6th Cir. 1977);

1. Whether the movant has shown a strong or substantial likelihood or probability of success on the mer