IMPORTANT POINT
The main legal point established in the judgment is the application of the Trade Marks Act in determining deceptive similarity and infringement of a registered trade mark, including the presumption of validity of the registration and the circumstances under which the registration could be considered invalid.

JUDGMENT

I.A. 10923/2023 [under Order XXXIX Rules 1 and 2 of the CPC]

1. The plaintiff asserts its registered trademark TUMORIN. The mark stands registered in the plaintiff's favour with effect from 18 February 2011 in Class 5. Under the said mark, the plaintiff manufactures and sells homeopathic preparations intended to cure benign growths. Mr. Varun Singh, learned Counsel for the plaintiff candidly acknowledges that, though, while applying for registration of the mark TUMORIN, the plaintiff had claimed that the mark was in use by his predecessor in interest since 1 March 2010, there is, in fact, no actual evidence of such use forthcoming on record. The plaint, however, does annex invoices evidencing use of TUMORIN by the plaintiff at least with effect from 4 April 2018. Mr. Varun Singh has also drawn my attention to a certificate dated 22 May 2023, issued by the plaintiff's Chartered Accountant, certifying that even in the financial year 2019-20, the returns from sales of TUMORIN exceeded Rs. 2 crores.

2. Mr. Varun Singh submits that the defendant is using a deceptively similar mark TUMOTIN for homeopathic preparations which are aimed at curing similar ailments. He also points out that the composition of TUMORIN and TUMOTIN is largely the same. The only difference between the two preparations, he submits, is that the plaintiff also claims that TUMORIN is safe for lactating mothers, whereas the defendant does not hold out any such claim. TUMOTIN, therefore, infringes TUMORIN. Inasmuch as the defendant was incorporated only on 31 October 2019, and is claiming user of the TUMOTIN mark only with effect from 10 June 2020, Mr. Varun Singh submits that the plaintiff, being a registrant of the TUMORIN mark with priority of user vis-a-vis the defendant, is entitled to an interlocutory injunction, restraining the defendant from continuing to use the TUMOTIN mark.

3. Mr. Bhuttan, learned counsel for the defendant submits, per contra, that his client is a pioneer in the field of homeopathic preparations and has been in the market for over 40 years. The TUMOTIN mark itself, he points out, has been in use since 2020. The plaintiff, having acquiesced to such use for over three years before moving the Court, Mr. Bhuttan submits that the interests of justice would not warrant any interlocutory injunction against the use, by his client, of the TUMOTIN mark, being granted at this point of time.

4. Mr. Bhuttan has also questioned the entitlement of the plaintiff's asserted TUMORIN mark to registration. He points out that, on the date when the plaintiff applied for registration of the mark TUMORIN, there was already in existence the mark TUMOCIN, registered in favour of Neon Laboratories Ltd. As such, he submits that TUMORIN ought not to have been registered at all in view of Section 11(1)(b)[ 11. Relative grounds for refusal of registration. -
(1) Save as provided in Section 12, a trade mark shall not be registered if, because of -
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(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.

5. Mr. Bhuttan also invokes Section 9(1)(b)[9. Absolute grounds for refusal of registration. -
(1) The trade marks -
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(b) which consist exclusively of marks or indications which may serve in trade to designate the kind, quality, quantity, intended purpose, values, geographical origin or the time of production of the goods or rendering of the service or other characteristics of the goods or service;
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shall not be registered:
Provided that a trade mark shall not be refused registration if before the date of application for registration it has acquired a distinctive character as a result of the use made of it or is a well-known trade mark.] of the Trade Marks Act to contend that the plaintiff's mark TUMORIN is descriptive of the