The central legal point established in the judgment is the application of Section 11(1)(b) of the Trademarks Act to determine the likelihood of confusion based on phonetic similarity and the priority of user and registration.

JUDGMENT (Oral)

1. This is a petition under Section 57(2)^{1[57. Power to cancel or vary registration and to rectify the register.-
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(2) Any person aggrieved by the absence or omission from the register of any entry, or by any entry made in the register without sufficient cause, or by any entry wrongly remaining on the register, or by any error or defect in any entry in the register, may apply in the prescribed manner to the High Court or to the Registrar, and the Registrar or the High Court, as the case may be, may make such order for making, expunging or varying the entry as it may think fit.]}

of the Trademarks Act 1999, seeking rectification of the register of Trademarks by removal, therefrom, of the mark [IMG] registered in favour of Respondent 1 under No. 4643936 in class 11 w.e.f. 7th September 2020.

2. Notice was issued in this petition on 29th September 2021, and accepted by learned Counsel on behalf of both respondents.

3. Respondent 2 is merely a pro forma respondent.

4. There was no appearance on behalf of Respondent 1 on 25th April 2023 and the matter was re-notified for the day before yesterday i.e., 16th May 2023. There was no appearance on behalf of Respondent 1 on 16th May 2023 either, and the matter was re-notified for today. Today, again, the matter has been called out twice there isa no appearance on behalf of either of the respondents.

5. I have heard Mr. Ajay Amitabh Suman, learned Counsel for the petitioner at some length and proceed, on the basis of the submissions made and the material on record, to dispose of this petition.

6. The petitioner is aggrieved by certificate of registration No. 4643936 dated 20th March 2021 granted to Respondent 1, registering the mark [IMG] in Class 11 w.e.f. 7th September 2020 for "apparatus for lighting, heating, steam generating, cooking, refrigerating, drying, ventilating, water supply and sanitary purposes".

7. The petitioner is the proprietor of the device mark [IMG], registered on 2nd March 2012 w.e.f. 10th December 2008 in Class 11, covering "apparatus for lighting, heating, steam generating, cooking, refrigerating, drying, ventilating, water supply and sanitary purposes".

8. As such, clearly, the rival marks are registered in favour of the petitioner and Respondent 1 not only for goods in the same class but, in fact, for identical goods.

9. Mr. Ajay Amitabh Suman invokes Section 11(1)(b)^{2[11. Relative grounds for refusal of registration.--
(1) Save as provided in Section 12, a trade mark shall not be registered if, because of-
(a) its identity with an earlier trade mark and similarity of goods or services covered by the trade mark; or
(b) its similarity to an earlier trade mark and the identity or similarity of the goods or services covered by the trade mark,
there exists a likelihood of confusion on the part of the public, which includes the likelihood of association with the earlier trade mark.]} of the Trade Marks Act, to contend that the impugned mark of Respondent 1 was not entitled to registration as, owing to its similarity with the petitioner's mark, and the fact that the marks were registered in respect of identical goods, there was a likelihood of confusion on the part of the public.

10. Mr. Suman submits that the marks [IMG] and [IMG] are deceptively and phonetically similar. He relies, for this purpose, on the judgment of the Supreme Court in Amritdhara Pharmacy v. Satyadeo Gupta, AIR 1963 SC 449 and K.R. Chinna Krishna Chettiar v. Shri Ambal & Co., MANU/SC/0303/1969.

11. Mr. Suman submits that, [IMG] was registered in favour of the petitioner on a proposed to be used basis, and the petitioner had furnished documents evidencing user since 2011. He has drawn my attention to invoices, placed on record, which indicate user of the [IMG] mark by the petitioner from 2011 to 2018. He has also drawn my attention to an agreement dated 21st May 2019, executed between a sister concern of the petitioner, Ms. Shruti Haasan and M/s Pab Entertainment Solution