The use of a mark that is phonetically similar and conveys the same idea as a registered trademark constitutes infringement, irrespective of packaging dissimilarity, as it likely confuses consumers of average intelligence.

JUDGMENT :

C. HARI SHANKAR, J.

1. Learned Counsel who appears on behalf of the respondents submits that his client is not in touch with him. He seeks discharge, which is allowed.

2. Notice was issued in this matter as far back as on 12 February 2024. On 23 August 2024, this Court had directed that this matter be listed for final hearing in the category of final hearing matters. Thereafter, the matter has been listed twice. The respondents is the beneficiary of the order under challenge in this appeal, whereby the ad interim injunction granted to the appellant-plaintiff by his predecessor has been vacated by the learned District Judge (Commercial Court) [“the learned Commercial Court” hereinafter] Given the nature of the order which is under challenge and the fact that this case has been listed on several earlier occasions, we are not inclined to adjourn the matter awaiting the convenience of the respondents.

3. In our view, the impugned order is patently illegal and cannot sustain.

Facts

4. The facts are brief.

5. The appellant was the registered owner of the trademark INDIA GATE, of which it has been using the mark since 1993 for rice. The respondents also started dealing with rice under the name BHARAT GATE.

6. In these circumstances, the appellant approached the learned Commercial Court by way of CS (Comm) 284/2020 [KRBL Ltd v. Praveen Kumar Buyyani], seeking a permanent and mandatory injunction against the respondents using the name BHARAT GATE, apart from attendant reliefs, submitting that it amounted to infringement of the appellant’s registered trademark “INDIA GATE” within the meaning of Section 29 [Infringement of registered trade marks: (1) 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 is identical with, or deceptively similar to, the trade mark in relation to goods or services in respect of which the trade mark is registered and in such manner as to render the use of the mark likely to be taken as being used as a trade mark. (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. ***** (4) 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: (a) is identical with or similar to the registered trade mark; and (b) is used in relation to goods or services which are not similar to those for which the trade mark is registered and (c) the registered trade mark has a reputation in India and the use of the mark without due cause takes unfair advantage of or is detrimental to, the distinctive character or repute of the registered trade mark. ***** (6) For the purposes of this section, a person uses a registered mark, if, in particular, he: (a) affixes it to good