The court established that trademark infringement requires a thorough comparison of marks, considering visual and phonetic similarities, and the nature of goods/services, ruling that no confusion was likely in this case.

JUDGMENT :

(Sunita Agarwal, CJ.,) :

1. The present Appeal under Order XLIII Rule 1(R) of the Code of Civil Procedure, 1908, has been filed challenging the judgment and order dated 18.05.2024 passed by the Judge, Commercial Court, City Civil Court, Ahmedabad in deciding the Application (Exhibit 7), for interim injunction under Order XXXIX Rule (1) & (2), in Commercial Trade Mark Suit No.13 of 2023. The said suit has been filed with the relief of perpetual injunction restraining the defendant and its agent etc. from using the trade mark / trade name ‘UniSN’, to carry out their trade, on the plea that the act of the defendants amounts to infringement of plaintiff’s registered trade mark ‘UNISON’ in Class 5 and Class 10.

2. The Trial Court while allowing the interim injunction application (Exh.7) has observed that the plaintiff has been using the trade mark ‘UNISON’ since 1980 and got the said trade mark registered since 2003 and 2012. Documentary evidences such as invoices, Statement of account, turnover of goods under the said trade mark from the year 1998-1990 onward had been filed by the plaintiff. The finding is that the defendant is using trade mark "UniSN" only from 14.06.2021 and the registered trade mark of the plaintiff was well within the knowledge of the representatives of the defendant. The plaintiff has acquired goodwill and reputation of the trade mark ‘UNISON’ in public at large.

3. The Trial Court after recording the above noted admitted facts, further noted that before institution of the suit, legal notice dated 16.08.2022 had been given to the defendant, to which reply was given by the defendant on 18.01.2023, wherein it is claimed that they are in the business of hospital, pharmaceutical products distribution, pharmaceutical research institute and the new business of ‘UniSN’ for health checkup and diagnosis in furtherance of its established business.

4. On the pleadings and the evidences led by the plaintiff, the Trial Court has recorded that with the registration in Class 5 & 10 of the trade mark ‘UNISON’, the plaintiff is registered to deal with the goods such as surgical, medical, dental and veterinary apparatus and instruments, artificial limbs, eyes and teeth, orthopedic articles, suture materials etc.. The plaintiff firm is in the name of ‘UNISON’. The registration in Class 5 and Class 10 made on 15.12.2003 and 22.10.2012 is vaild upto 15.12.2023 and 22.10.2032; respectively. Whereas, the defendant is using the trade mark ‘UniSN’ for providing services such as health checkup as well as diagnostic services. The definitions of ‘trade mark’ and ‘medical device’ were considered by the trial court to note that the plaintiff has prima facie established that drug includes diagnosis and medical device also substances used in victro diagnosis. So from the service of the defendant under the trade mark ‘UniSN’ to provide diagnostic and healthcare services, which include drug etc., the trial court has reached at the conclusion that the trade mark of the plaintiff and the defendant are prima facie similar phonetically, structurally and visually. The plaintiff is also providing diagnostic services as per the evidence on record. The plaintiff has been able to prima facie establish that the defendant is using the trade mark similar, identical and deceptive of its trade mark and action of the defendant is likely to confuse or deceive the public at large from the similarity of the two trade marks. The use of word ‘UniSN’ by the defendant is likely to cause confusion to the general public as to the association of the defendant with plaintiff’s trade mark / trade name / word ‘UNISON’. For the word used as a trade mark, which is likely to cause confusion to the general public and the said word being associated with the plaintiff’s trade mark, both the elements of grant of interim relief namely prima facie case and balance of convenience are made out in favour of the plaintiff and, in case, the defendant is not injuncted, the p