Court emphasized that the assessment of trademark confusion must consider the overall commercial impression, rejecting claims of similarity between 'ROOH AFZA' and 'DIL AFZA'.

JUDGMENT

Vibhu Bakhru, J.

Introduction

1. Hamdard National Foundation (India) and Hamdard Dawakhana, also trading as Hamdard Laboratories (India) - Food Division, have filed the present appeal impugning an order dated 06.01.2022 (hereafter `the impugned order') passed by the learned Single Judge, whereby the appellants' application under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure, 1908 (being I.A. 12032/2020 in CS (COMM) 551/2020 captioned Hamdard National Foundation (India) & Anr. v. Sadar Laboratories Pvt. Limited), seeking an interim injunction against the respondent, Sadar Laboratories Pvt. Ltd. (hereafter `the respondent'), from infringing the appellants' registered trademarks, was rejected.

2. The appellants have filed the aforementioned suit, CS(COMM) 551/2020, inter alia, seeking a permanent injunction restraining the respondent from using the trademark `SHARBAT DIL AFZA', which, the appellants claim, is deceptively similar to the registered mark `ROOH AFZA'. The appellants claim that use of the impugned trademark `SHARBAT DIL AFZA'/ `DIL AFZA' is likely to cause confusion and amounts to infringement of the registered trademark `SHARBAT ROOH AFZA'/ `ROOH AFZA'. The appellants further claim that use of the said mark, in respect of any goods, particularly syrups/sharbats, is intended to deceive customers; constitutes unfair competition; would result in dilution of the trademark `ROOH AFZA'; and amounts to passing off.

3. The controversy, in the present case, relates to the word trademark `SHARBAT DIL AFZA' (hereafter also referred to as `the impugned trademark'), which is registered in favour of the respondent in Class 5 as well as Class 32. The particulars of the said registrations are set out below:

4. The appellants claim that the trademark `SHARBAT ROOH AFZA' has been used continuously since the year 1907 in respect of a sweet beverage concentrate, manufactured and sold by the appellants. The respondent has recently launched a similar product (sweet beverage concentrate) under the brand name `SHARBAT DIL AFZA'.

Appellants' case

5. The appellants state that they are engaged in the business of manufacturing and selling Unani and ayurvedic medicines, oils, syrups and non-alcoholic beverages amongst other products for over a century. They claim that they trace their history as far back as the year 1906, when Hakeem Hafiz Abdul Majeed, a Unani practitioner, had set up a Unani clinic under the name of `HAMDARD DAWAKHANA'. Appellant no.1 is the owner of the trademarks `HAMDARD' and `ROOH AFZA', which are used in respect of a large number of goods and services offered by