A claim for passing off can be maintained even without registered trademark rights, as per Trade Marks Act provisions safeguarding prior users' rights.

JUDGMENT

Jyoti Singh, J. (Oral)

1. Present appeal has been filed assailing the order dated 08.11.2016, passed by the learned Trial Court in suit bearing CS No. 58/2016 as well as seeking a direction to dismiss the application filed by the Respondents herein under Order 39 Rule 4 CPC.

2. Appellant herein is the Plaintiff in the suit while Respondents are Defendants No. 1 and 2. Parties hereinafter are referred to as per their litigating status in this Court.

3. Brief facts, shorn of unnecessary details, to the extent necessary and as set out in the plaint filed before the learned Trial Court are that the Appellant is engaged in the business of manufacturing and marketing confectionary items and namkeens as well as other allied, cognate and related goods. In the year 2011, Appellant adopted the word mark/label `RINGO' in course of its trade, in relation to the aforesaid goods. Word `RINGO' forms essential part of Appellant's artistic labels which are as follows:

4. In order to acquire statutory rights over the trademark/label/trade dress, Appellant applied for registration on 30.09.2013 in class 30, which was stated to be pending when the plaint was filed. Appellant represented its label in an artistic manner including its get-up, lettering style, colour scheme, placement of words, artistic features etc. and it is averred that the said artwork is an original `artistic work' under Section 2(c) of the Copyright Act, 1957 (hereinafter referred to as the `Act'). Appellant is the owner and proprietor of the Copyright in the said label and has obtained `No Objection Certificate' from the Trade Marks Registry, in terms of Section 45 of the Act. Appellant is thus entitled to protection of its Copyright under Section 14 of the Act.

5. It was stated before the Trial Court that Appellant is the proprietor, prior adopter and continuous, extensive and exclusive user of its trademark/ label in relation to confectionaries and namkeens and the trademark is identified as exclusively originating from Appellant's source and none else. The goods being of high quality have a great demand in the market and on this count, Appellant has acquired tremendous goodwill and enviable reputation, which is further evident from the substantial sales as reflected in the Income Tax returns of the Appellant.

6. It was urged before the Trial Court by the Appellant that Respondents are also engaged in the same business, i.e., manufacturing and marketing of confectionary items and namkeens and have adopted and are commercially using the trademark/label RING in relation to the impugned products. The packaging/trade dress of the Respondents bearing the impugned trademark/label as brought out in the plaint is as under:

7. The impugned trademark, according to the Appellant, is identical with and/or deceptively similar to Appellant's trademark/label in every aspect, i.e., phonetically, visually, structurally, conceptually and in all its essential features. Respondents have imitated to the extent that they have also copied the literary work in `MAZZA AA GAYA'. Adoption of the impugned trademark by Respondents is dishonest, tainted and mala fide and the use of the impugned trademark is a false trade description within the meaning of Section 2(1)(i) read with Section 103 of the Trade Marks Act, 1999, leading to unfair trade and competition. As the competing trademarks are identical/deceptively similar, goods are identical and the trade channels are also common, consumers are bound to be deceived into believing that the goods of