Point of Law : Section 27 of Trade Marks Act provides that no action for infringement will lie in respect of an unregistered trade mark.

JUDGMENT :

P.G. Ajithkumar, J.

Defendants in O.S.No.42 of 2022 before the VI Additional District Court, Ernakulam are the appellants. They are aggrieved of the order of prohibitory injunction against them dated 20.03.2023 in I.A.No.2 of 2022 in O.S.No.42 of 2022. Assailing that order, they have filed this appeal under Order XLIII, Rule 1(r) of the Code of Civil Procedure, 1908.

2. This appeal was admitted on 30.05.2023. Respondents entered appearance through their learned counsel.

3. Heard the learned counsel appearing for the appellants and the learned counsel appearing for the respondents.

4. The respondents are the owners of the registered trade mark ‘Chandrika’. Its original owner started using the said trade mark for his products in 1940. That trade name was registered in 1947. They got all India registration in 1976. Products of the respondents, especially Ayurvedic soap, is the most trusted product in the Country. They could garner immense goodwill and reputation among the customers. Not only the brand name 'Chandrika', but its labels and packaging also have trade mark registration and all of them occupy a distinct position in the market. While so, the appellants marketed products with a deceptively similar name ‘Chandra’. They are also selling soap and similar other products. They have no right or authority to market their products using such a trade mark, since that would infringe the trade mark of the respondents. Moreover, by continuous use of the trade mark 'Chandrika' by the respondents, marketing of a product with such a similar trade name, would, in all probabilities, create confusion among the public, who are the consumers of the respondents’ products. Such an act of passing off is liable to be restrained. Immediately on noticing the fact that the appellants are marketing such a product, the respondents issued a cease and desist notice to the 2nd appellant on 24.02.2022. The appellants, however, continued marketing of their products and in such circumstances the respondents filed the suit and the application for temporary injunction, I.A.No.2 of 2022.

5. The appellants resisted the said application by filing a counter-affidavit. They would contend that the 1st appellant obtained registration for the trade mark ‘Chandra’ on 27.08.2020 for products included in Class-3, namely, bleaching preparations and other substances for laundry use, clearing, polishing, scouring and abrasive preparations; soaps, perfumery, essential oil and cosmetics. Their trade name ‘Chandra’ is phonetically and visually distinct. The meaning of the trade names are also different. The product of the appellants are easily distinguishable by any ordinary prudent man. The 2nd appellant was the proprietor of the firm, but she stopped selling the products using the name ‘Chandra’. The 1st appellant is marketing his products using the trade name ‘Chandra’. The labels and wrappers used by the appellants have no similarity with those used by the respondents. The respondents are marketing only ayurvedic soap; whereas the appellants are marketing totally different products. Colour scheme, style of writing, etc. used by the appellants to market their products are totally different from those used by the respondents, and there cannot be any confusion in the minds of the customers on seeing these products. Since the appellants have trade mark registration to their products, the respondents have no right to claim an injunction against them. Accordingly, the appellants sought to dismiss the application for temporary injunction.

6. Exts.A1 to A10 were produced by the respondents and Ext.B1 to B5 were produced by the appellants. After considering the said documents and submissions of both sides, the learned Additional District Judge found that the trade mark ‘Chandra’ is deceptively similar to the trade mark ‘Chandrika’. Further, it was held that the colour co