The court emphasized the importance of considering deceptive similarity and the likelihood of confusion in an action for passing off, and the rights of the registered proprietor under the Trade and Merchandise Marks Act.

A. Kulasekaran, J.

1. O.A. No. 324 of 2001 has been filed by S.V.S. Oil Mills, represented by its Partner S.V. Chandra Pandian against Rajkumar, trading as Nellai Agro Foods & S.V.S. Oil Mills for interim injunction restraining the respondents from manufacturing, marketing and advertising or offering sale or use the expression S.V.S. as his domain name or website in the electronic media or otherwise for selling their products Palmolein oil or refined edible oil or any kind or other food article using the trademark S.V.S. or trading style S.V.S. Oil Mills or any other cognate or similar goods as the goods of the applicant. O.A. No. 2580/2001 was filed by the respondent to vacate the interim injunction dated 11.4.2001 passed in O.A. No. 324/2001. For the sake of convenient, S.V.S. Oil Mills represented by its Partner S.V. Chandra Pandian shall hereinafter refer to as applicant and S.V.S. Rajkumar is referred to as respondent.

2. The applicant herein has filed a suit for permanent injunction on account of passing off of the respondent's palm oil and other goods namely refined oil etc., using the trade mark S.V.S. or similar such expression in the course of manufacture and sale or advertisement in all media and consequential other relief. The applicant further states that they have been manufacturing, marketing, advertising edible oil of various kinds since 1969-1970 by adopting the initial S.V.S. or distinctive style as their trade mark and they have been using it all over India. Their business name and trade mark is one and the same and public used this trademark S.V.S. for buying the applicant's product. Their annual turnover is about 31 Crores during 1998-1999. The conduct of the respondent to use identical trademark in relation to the very same goods would amount to passing off of the respondent goods as the goods of the applicant. The adoption and use of the said trade mark by the respondent is only for the purpose of exploiting the commercial goodwill attached to the applicant trade mark S.V.S. If the respondent is permitted to apply the trade mark in their business, the applicant would be put to great loss. Originally, the respondent was manufacturing and selling the products under the name and style of Pandian Oil Mills and subsequently changed the name as Nellai Agro Refineries. On 4.2.2001, the respondent changed his previous two trading style of Pandian Oil Mills and adopted the style of S.V.S. and on account of an advertisement by the respondent in Daily Thanthi, the applicant was receiving number of telephone calls. Few days later, the respondent marketed in identical style of writing and containers. The applicant and their predecessors are in the business for over three decades by using the trademark S.V.S. As such, the adoption of the same trade style by the respondent would create confusion in the minds of the purchasers. The suit is based on the registered trademark filed on the basis of exclusive use of the trademark S.V.S. and to protect the commercial goodwill accrued to the three letters S.V.S. The Registrar of Trade Mark imposed a condition of disclaimer for the letters S.V.S. because of the period of user claimed on the date of filing of trade mark application in the year 1973. However, the applicant has been using the same continuously and substantially all over India till date. Originally, the trademark certificate contains seven names, one partner Mrs. Gandhimathi retired, after the final verdict of the Supreme Court, the names of S.V.Sivalinga Nadar, and S.V. Hari Krishnan were removed from the trademark register with their knowledge. The respondent being the son of S.V. Sivalinga Nadar has no right to use the trade name.

3. The respondent in his pleadings stated that the trade mark would show that all the family Members had been trading as S.V.S. Oil Mills in edible refined groundnut oil business and that the registration of this mark shall give no right to exclusive use of the letters S.V.S.