JUDGMENT (Oral)

C. Hari Shankar, J.

I.A. 9418/2023 (condonation of delay of 15 days in filing replication)

1. For the reasons stated therein, the delay in filing replication is condoned.

2. The application stands disposed of.

I.A. 20611/2022 (under Order XXXIX Rules 1 and 2 of CPC)

3. The plaintiff alleges infringement, by the defendant, of its registered trade mark, registered w.e.f. 11 January 2012 in class 43, for all kinds of restaurants, bars, snack bars, hotels, cafeterias and canteens.

4. The plaintiff's mark is [IMG]. The defendant was, till 2019, using the mark WOW! CHINA, depicted as [IMG].

5. In 2019, however, the defendant added, below the word China in the logo, the word "BISTRO". The mark, thus, became [IMG].

6. The plaintiff's case is that with the addition of "BISTRO" below "CHINA" in the mark [IMG], the defendant's mark became deceptively similar to that of the plaintiff, inasmuch as both now read CHINA BISTRO, with the "WOW!" above "CHINA" in the defendant's mark being the only differentiating feature. The plaintiff's case is that this added word "WOW!" would not in any way mitigate the possibility of confusion or deception between the two marks, from the point of a customer of average intelligence and imperfect recollection.

7. There is no dispute about the fact that, while the plaintiff's mark [IMG] stands, as already noted, registered in favour of the plaintiff in class 43 w.e.f. 15 December 2003 and, thereafter, w.e.f. 1 April 2015, the defendant has no registration of the impugned mark [IMG].

8. Equally, there is no dispute about the fact that both the marks are used for providing similar services, as, under the "BISTRO" tag, both the plaintiff and the defendant run upmarket restaurants offering Chinese - or Indo Chinese - cuisine.

9. The dispute, therefore, does not admit of much complexity. From the rival submissions of learned Counsel, only two issues arise, viz. (i) whether the plaintiff's and defendant's marks are confusingly or deceptively similar so as to result in infringement within the meaning of Section 29(2)^{1[(2) A registered trade mark is infringed by a person who, not being a registered proprietor or a person using by way of permitted use, uses in the course of trade, a mark which because of - (a) its identity with the registered trade mark and the similarity of the goods or services covered by such registered trade mark; or (b) its similarity to the registered trade mark and the identity or similarity of the goods or services covered by such registered trade mark; or (c) its identity with the registered trade mark and the identity of the goods or services covered by such registered trade mark, is likely to cause confusion on the part of the public, or which is likely to have an association with the registered trade mark.]} of the Trade Marks Act, 1999 and (ii) whether the plaintiff is entitled to so claim.

The aspect of confusing or deceptive similarity

10. Though Mr. Sengupta, learned Counsel for the defendant, sought to submit that, seen as a whole, the plaintiff's and the defendant's marks are not deceptively similar, I am not inclined, prima facie, to accept the submission.

11. Though both are device marks, the plaintiff's mark consists of the word CHINA BISTRO and the defendant's mark consists of the word WOW! CHINA BISTRO, with certain added visual/pictorial matter.

12. Infringement, unlike passing off, is to be decided on a plain comparison of the rival marks. Goodwill and reputation have little, if any, part to play in the process. The matter has to be examined from the perspective of the customer of average intelligence and imperfect recollection, who is neither a genius, nor a fool. One may, in a sense, liken him to Laxman's immortal "common man" who, even while being observant and discerning, always has that slightly befuddled look on his face. The consumer, moreover, must be one who is not overly familiar with either mark. The classical test is whether such a consumer