The court upheld that lack of deceptive similarity precludes claims of trademark infringement and passing off, necessitating proof of goodwill and likelihood of confusion.

JUDGMENT :

C. HARI SHANKAR, J.

1. This appeal assails order dated 16 January 2026 passed by the learned District Judge (Commercial Courts-06), “learned Commercial Court” hereinafter, Tis Hazari Courts, Delhi in CS (Comm) 48/2026, “the suit” hereinafter, issued summons in the suit and notice in the application under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure, 1908, “CPC” hereinafter filed by the appellant, returnable on 27 February 2026, i.e. 16 days from now. The appellant (the plaintiff in the suit) is aggrieved by the rejection, by the learned Commercial Court, of the appellant’s prayer for ex parte ad interim injunction and appointment of a local commissioner to seize the allegedly infringing goods from the premises of the respondent-defendant.

2. In these circumstances, we suggested, to Mr. Gogia who appears on behalf of the appellant that it would be more expedient if we were to direct the learned Commercial Court to decide the Order XXXIX application on 27 February 2026.

3. We pointed out to Mr. Gogia that, else, observations which we may have to enter, if the appeal were to be argued exhaustively at an ad interim stage, may, if we were not in agreement with his submissions, prejudice the hearing of the application under Order XXXIX Rules 1 and 2.

4. Mr. Gogia, however, requested us to decide the present appeal on merits.

5. We have heard him at length.

6. Having done so, we are of the opinion that no case whatsoever is made out for us to interfere with the impugned order passed by the learned Commercial Court.

7. Scope of interference

7.1 The scope of interference, by courts hearing appeals against orders passed by commercial courts in intellectual property matters under Order XXXIX Rules 1 and 2 of CPC stands authoritatively settled by the following passages from the judgment of the Supreme Court in Wander Ltd v. Antox India (P) Ltd., 1990 Supp SCC 727

“14. The appeals before the Division Bench were against the exercise of discretion by the Single Judge. In such appeals, the appellate court will not interfere with the exercise of discretion of the court of first instance and substitute its own discretion except where the discretion has been shown to have been exercised arbitrarily, or capriciously or perversely or where the court had ignored the settled principles of law regulating grant or refusal of interlocutory injunctions. An appeal against exercise of discretion is said to be an appeal on principle. Appellate court will not reassess the material and seek to reach a conclusion different from the one reached by the court below if the one reached by that court was reasonably possible on the material. The appellate court would normally not be justified in interfering with the exercise of discretion under appeal solely on the ground that if it had considered the matter at the trial stage it would have come to a contrary conclusion. If the discretion has been exercised by the trial court reasonably and in a judicial manner the fact that the appellate court would have taken a different view may not justify interference with the trial court's exercise of discretion. After referring to these principles Gajendragadkar, J. inPrinters (Mysore) Private Ltd. v. Pothan Joseph , AIR 1960 SC 1156

“... These principles are well established, but as has been observed by Viscount Simon in Charles Osenton & Co. v. Jhanaton, 1942 AC 130 ‘...the law as to the reversal by a court of appeal of an order made by a judge below in the exercise of his d