The defendants' use of deceptively similar marks on bicycles constituted trademark infringement and passing off. The court found that the defendants' claim of prior user was not credible and that the marks were intended to confuse customers.

JUDGMENT (Oral)

1. Mr. Gupta, at the outset, draws the attention of this Court to para 2 of the order dated 19th January 2023 which cites the applications in which he has advanced arguments as I.A. 19344/2022 whereas the arguments were advanced on I.A. 16353/2022 and I.A. 21448/2022.

2. Para 2 of the order dated 19th January 2023 shall be treated as corrected accordingly.

I.A. 16353/2022 and I.A. 21448/2022

3. I.A. 16353/2022 was filed by the plaintiff/Alphavector India Pvt. Ltd. under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure, 1908 (CPC), seeking interlocutory injunctive reliefs.

4. By order dated 11th October 2022, ad interim injunction was granted in favour of the plaintiff and against the defendants. The defendants have, thereafter, filed I.A. 21448/2022, seeking vacation of the ad interim injunction granted on 11th October 2022.

5. Pleadings in both these applications are complete.

6. Mr. Aditya Gupta and Mr. V.K. Puri, learned Counsels have appeared and addressed arguments on behalf of the plaintiff and defendants respectively.

7. The plaintiff is the proprietor of the following registrations, under the Trade Marks Act 1999:

8. The plaintiff has also applied for registration of the word mark "NINETY ONE" and the device marks "[IMG]" and "[IMG]" (hereinafter referred to as "the 91 marks"). The said applications are pending consideration before the trade mark registry.

9. The plaintiff uses its registered marks, as well as "the 91 marks", which are pending registration, on bicycles and accessories of bicycles. The plaintiff is aggrieved by the use, by the defendants, of the marks "NINETY NINE" and "99" on bicycles manufactured by the defendants.

10. The plaintiff has placed, on record, photographs of the bicycles of the plaintiff and the defendants which reflect the use of the marks "NINETY ONE" by the plaintiff and "NINETY NINE" by the defendants, on the body of the bicycles, both in numerals as well as in words, thus:

[IMG]

[IMG]

11. Neither the plaintiff, nor the defendants, have any registration in the mark "91" or "99" per se, whether in numerals or in words. The plaintiff alleges that, by use of the mark "99" as well as "NINETY NINE" on bicycles, the defendants have infringed the plaintiff's registered marks, in each of which "91" is the dominant part, and also passed off their goods as goods which are either manufactured by the plaintiff or associated with the plaintiff.

12. Predicated on these allegations, the plaintiff has, by the present suit, sought injunctive reliefs against the defendants from using the impugned "99" mark, whether in words or in numerals, along with reliefs of delivery-up, rendition of accounts, costs and damages.

13. I.A. 16353/2022, filed with the plaint, seeks interlocutory injunction against the defendants as well as all others acting on their behalf using the impugned mark, pending disposal of the suit.

Rival submissions

Submissions of Mr. Aditya Gupta

14. Mr. Aditya Gupta, learned Counsel for the plaintiff, has drawn my attention to the pictures of the bicycles manufactured by the plaintiff and the defendants. He points out that "91" and "99", in numerals, are predominantly figuring on the seat of the bicycles. Side by side, he submits that on the cross bars of the bicycles, the marks "NINETY ONE" and "NINETY NINE", are prominently printed. The lettering and font in which the defendants have printed their "NINETY NINE" mark is, submits Mr. Gupta, identical to the lettering and font of the "NINETY ONE" mark of the plaintiff, resulting in every likelihood of confusion in the purchaser mistaking the bicycles of the defendants for those of the plaintiff.

15. Mr. Gupta submits that, by using the mark "99", in which the first numeral "9" is common to