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2008 (2) GCD 978 (Guj)
Hon’ble Mr. Justice D.N. Patel
Vikram Stores & Anr. [Ahmedabad]
Versus
S.N. Perfumery Works & Anr.
Appeal From Order No. 414 of 20071—Decided on 30/11/2007
Trade Marks and Copy Right—Infringement of Trade Mark—Remedy.
Head Note :
Trade Marks and Copy Right Law—Infringement of Trade mark—Remedy—’Rangoli’ is registered trade mark of plaintiff petitioner, whereas defendant is using predominantly word “Rangili” for sale of same product viz. Essence stick—Appellants instituted suit for infringement of copy right, infringement of Trademark and for passing off and to restrain respondents defendant from using the label “Rangili”—Defendants are using words “Sai Rangili” but word “SAI” is having different colour and smaller size that eye-catching—Mark “Rangili” used by defendants is structurally and phonetically similar, apparent, eye catching and predominant and carrying similarity in idea and deceptively similar with registered trade mark of original plaintiffs—There is prima facie, infringement of trade mark—Held, respondents (original defendants), their servants, agents, dealer, distributors, stockists, publishers and printers are restrained from using any label, packing materials advertisement materials, the mark “RANGILI”.
Held :
The manner in which mark Rangoli is written which is a trade mark of the original plaintiffs which is a Hindi version in Devnagri script, is overall structurally (colour, size, length, breath and scriptwise) and phonetically similar to the mark Rangili used by the original defendants. The person who is going to purchase Agarbatti (essence stick) will be prima facie deceived by the mark used by the defendants. Thus, from the view point of the consumer, of an imperfect recollection and of an average intelligence, there will be a confusion, if the defendants are allowed to use the mark Rangili which is visually, structurally and phonetically much similar to the trade mark Rangoli used by the original plaintiffs. [Para 4 (vii)]
Suffice it to say that the mark Rangili used by the defendants is structurally and phonetically similar, apparent, eye-catching and predominant and carrying similarity of idea and deceptively similar with the registered trade mark of the original plaintiffs. In the first instance, confusion will be created in the mind of the consumer (of average intelligence and of imperfect recollection) who are purchasing Agarbatti. Thus, there is a prima facie case, in favour of the plaintiffs, balance of convenience is also in their favour and irreparable loss will be caused, if the stay is not granted to the plaintiffs. [Para 4 (xi)]
In view of these facts, prima facie, there is an infringement of the trade mark. So far as action of passing off is concerned, the suit is already pending and this Court is not going much in detail. As stated hereinabove, the action for passing or and the action for infringement are absolutely different. The tests are different. In detail, guidelines have been framed in judicial pronouncements to arrive at a prima facie conclusion as to the passing of action and infringement action. This aspect of the matter has not been appreciated by the trial Court.
[Para 4 (xii)]
[See Paras 5 and 6]
D.N. Patel, J.—The present Appeal from Order has been preferred against the order dated 05.11.2007 below Notice of Motion Exhs. 6 and 7 in Civil Suit No. 2175 of 2007 passed by the Judge, City Civil Court, Court No. 6, Ahmedabad, whereby the Notice of Motion filed by the present appellants (original plaintiffs) was rejected and therefore, the appellants (original plaintiffs) have preferred the present Appeal from Order.
Facts
2. Rangoli is a registered trademark of the petitioner (plaintiff), whereas the defendant is using predominantly word Rangili for sale of same product viz. Essence stick. The present appellants have instituted Civil Suit No. 2175 of 2007 for infringement of copyright, infringement of trade mark and for passing off and to restrain the present respondents (original defendants) from printing, publishing and using the label Rangili and/or any other label which is identical and/or deceptively similar to the plaintiffs’ Rangoli Agarbatti (Essence stick) label. Defendants are apparently using words ‘Sai Rangili’, but a word ‘Sai’ is having different colour and smaller size than eye-catching and predominant word ‘Rangili’. And size and colour of word ‘Rangili’ and ‘Rangoli’ (trade mark of the plaintiffs) are very much similar, difficult to be distinguished by a man of average intelligence or a man of imperfect recollection.
2.1. It is also stated by the appellants (original plaintiffs) that their trade mark Rangoli was registered in the year 1990 and the same has been extended or renewed from time to time.
2.2. The original defendants are trying to pass off the goods Agarbattis (Essence sticks) by making/using similarly deceptive trade mark. The label used by the defendants is Rangili. The plaintiffs have exclusive right to use the label Rangoli and the word Rangili is deceptively similar looking to the label used by the original defendants. Both the words Rangoli and Rangili are of similar colour, size-wise, also there is similarity, in words Rangoli and Rangili and apparently customers will not be able to make a difference between to packets of Rangoli and Rangili Agarbatti (Essence stick).
2.3. Few years before, the original defendants were also using the said lable of the original plaintiffs Rangoli. Therefore, a criminal complaint was filed. A panchnama was drawn and as per the said panchnama, the defendants were manufacturing Agarbattis with an outer label of Rangili, but when the said packets were opened, from the said packet, 10 or 12 small packets of Rangoli agarbattis were found. Thus, ostensibly, they were using the word Rangili on a wrapper of a bigger packet, but, inside the said bigger packet, there were small packets of Agarbatti having label of Rangoli agarbatti. Rangoli is a trade mark of the original plaintiffs. Ultimately, the defendants stopped using label Rangoli.
2.4. Now, defendants started using modified version of Trademark of plaintiffs, which is bone of contention between the parties. Looking to the present label used by the original defendants, it is deceptively similar to the trade mark and label used by the plaintiffs. The original packets have been presented before this Court. Looking to the colour and the size of the words Rangoli and Rangili, they are very much similar to each other. Therefore, the civil suit has been instituted for passing off action as well as for infringement of trademark and copyright.
Arguments :
3. It is contended by the learned Advocate for the appellants (original plaintiffs) that the plaintiffs are having a registered trade mark Rangoli in English, Hindi, in label, in box label. They are manufacturing Agarbattis (Essence sticks) in the name and style of Rangoli since the year 1978. They have adopted trade mark Rangoli in respect of their product since 1984. The said trade mark is registered in the year 1990 and it has been renewed/extended from time to time. The original defendants are using label Sai Rangili. Looking to the label used by the original def
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