The main legal point established in the judgment is the application of the principles of deceptive similarity and passing off in determining trade mark infringement, emphasizing visual and phonetic similarity, lack of bona fides, and absence of requirement to prove intention to deceive or actual damage.

Valmiki J. Mehta, J.:--

I.A. No. 10863/2015 (stay)

1. This application for injunction has been filed in a suit of the plaintiff seeking injunction against the infringement of the registered trade mark and passing off etc. Plaintiff is the registered owner of the trade mark RAJSHREE. Details of registration of the trade mark RAJSHREE have been given in para 4 of the plaint and which shows that there are six registrations of the word mark RAJSHREE in favour of the plaintiff with the first registration commencing from 15.6.1989. Also, besides the fact that there is no dispute that the plaintiff’s trade mark is registered, there is also no dispute that plaintiff has commenced business much earlier to the defendant which is said to have commenced business with the impugned trade mark RAASHEE in the year 2009. The plaintiff is using the trade mark RAJSHREE, and the defendant is using the trade mark/word mark RAASHEE for the same products falling in the same Classes 31 and 34 viz of pan masala, supari, betel nuts, zarda mix, mouth freshener and so on.

2. The issue before this Court is whether the trade mark RAASHEE used by the defendant is deceptively similar to the registered trade mark RAJSHREE of the plaintiff. I may also note that as per the written statement filed by the defendant, defendant has stated that it has ceased manufacturing goods under the trade mark RAASHEE on account of mounting losses, however, the defendant has very cleverly not stated in the written statement that since when defendant has ceased manufacturing of the goods under the trade mark RAASHEE. Therefore, the factual position is that the defendant is not carrying on business with the trade mark RAASHEE, though at one point of time in the year 2009 it did commence business with the trade mark RAASHEE with the same goods which are manufactured and sold by the plaintiff.

3. Since both the parties do not dispute as to what is the law which is applicable to deceptive similarity, let me at this stage reproduce the relevant portions of the applicable ratios of various judgments of the Supreme Court and which are as under:-

(i) Cadila Health Care Ltd. v. Cadila Pharmaceuticals Ltd. (2001) 5 SCC 73:

“35. Broadly stated, in an action for passing off on the basis of unregistered trade mark generally for deciding the question of deceptive similarity the following factors to be considered:

(a) The nature of the marks i.e. whether the marks are word marks or label marks or composite marks, i.e. both words and label works.

(b) The degree of resembleness between the marks, phonetically similar and hence similar in idea.

(c) The nature of the goods in respect of which they are used as trade marks.

(d) The similarity in the nature, character and performance of the goods of the rival traders.

(e) The class of purchasers who are likely to buy the goods bearing the marks they require, on their education and intelligence and a degree of care they are likely to exercise in purchasing and/or using the goods.

(f) The mode of purchasing the goods or placing orders for the goods.

(g) Any other surrounding circumstances which may be relevant in the extent of dissimilarity between the competing marks.”

(ii) Ruston & Hornsby Ltd. v. The Zamindara Engineering Co. (1969) 2 SCC 727:

“7. In an action for infringement where the defendant’s trade mark is identical with the plaintiff’s mark, the Court will not enquire whether the infringement is such as is likely to deceive or cause confusion. But where the alleged infringement consists of using not the exact mark on the register, but something similar to it, the test of infringement is the same as in an action for passing-off. In other words, the test as to likelihood of confusion or deception arising from similarity of marks is the same both in infringement and passing-off actions.”

(iii) Kaviraj Pandit Durga Dutt Sharma v. Navaratna Pharmaceutical Laboratories AIR 1965 SC 980:

“28. The other ground of objection that the findings are inconsisten