Court has to compare both marks to find out if offending mark is deceptively similar to applicants mark

B.Akbar Basha Khadiri, J.: All these appeals have arisen in this way:

One T.V.Ramasubbier originally started a Tamil daily under the name and style of ‘Dinamalar’ at Trivandrum, Kerala State. Thereafter, he shifted his business to Tirunelveli, wherefrom the Tamil daily ‘Dinamalar’ was published. The words ‘Dina" and Malar’ have been registered with the Registrar of Trade Marks in class 16 in registration No.302070 on 13.1.1975. Ramasubbier had left behind five sons by name, R.Venkitapathy, R.Krishnamurthy, R.Lakshmipathy, R.Raghavan and R.Sathyamurthy. The proprietary concern ‘Dinamalar’ was converted into a firm consisting of Ramasubbier and his five sons. K.Ramasubbu and K.Venkatraman are the sons of Krishnamurthi and L.Ramasubbu and L.Aadimoolam are the sons of Lakshmipathi, Hema, Bhuvaneswari, Sudha, Kalpagam are the wives of K.Ramasubbu, L.Ramasubbu, Adhimoolam and Venkataraman respectively. K.Ramsubbu, Venkatraman, L.Ramasubbu and Adhimoolam are working as Executives in Dinamalar. The above facts are not in dispute. The case of the respondents/plaintiffs is that the abovesaid four persons know the business secrecies of running a daily newspaper successfully and they tried to float a company under the name and style of Kaalaimalar Publications (P) Ltd. to bring out a Tamil daily under the name and style of Kaalaimalar’. Finding some difficulties in their starting the company, at their instance their wives have formed the company under the name and style of Kaalaimalar Publication Limited. They are trying to bring out a daily Tamil newspaper under the name and style of ‘Kaalaimalar’ According to the plaintiffs, by forming the company, the defendants are trying to pass off their company as a unit of the plaintiffs i.e., as a sister concern of Dinamalar. The plaintiffs have field a suit in C.S.No.524 of 1999 seeking the relief of injunction to restrain the defendants namely the appellants herein, from infringing their trademark, from passing off their newspaper and also for infringement of copyright. The plaintiffs have also filed a suit in C.S.No.593 of 1999 against K.Ramasubbu, L.Ramasubbu who are said to be the executives of Dinamalar and against M/s.Kaalaimalar Publications represented by its owner Adhimoolam and then against defendants 5 to 10 who are said to be the proprietors of certain press, who have undertaken to do the printing work for the same reliefs which are sought for against the defendants in C.S.No.524 of 1999. The plaintiffs have filed O.A.Nos.425 of 1999, 426 of 1999 and 427 of 1999 in which they seek the following reliefs:

(i) In O.A.No.425 of 1999, the plaintiffs seek for an order of interim injunction restraining the respondents/defendants and others from using the trade mark ‘Dinamalar’ or any part thereof with the device of the lotus bud Blooming and/or any other trademark, device or Symbol which are an imitation of and deceptively similar in any manner whatsoever to that of the plaintiff’s Trade Mark "Dina Malar" in English or any other language, and in particular in Tamil so as to infringe the plaintiffs Trade Mark in Tamil Publications by using the same or any other trade mark which is identical or deceptively similar in respect of the respondent/defendant’s publications, Dailies, supplements, magazines, Diwali Annual, Weekly editions, fortnightly editions, Calendars, Yearbooks, Stationery, Blocks, Boards and Advertisement material.

(ii) In O.A.No.426 of 1999, the plaintiffs seek for an order of interim injunction restraining the respondents/defendants and others from using the trade mark ‘Dinamalar’ in the three dimensional stylistic lettering or any part thereof with the device of the lotus bud Blooming and/or any other Trade Mark, device or symbol which are an imitation of and deceptively similar in any manner whatsoever to that of the plaintiff’s Trade Mark “Dinamalar’ in English or any other language, and in particular in Tamil so as to pass off the respondent/defendant’s Corporate name or tra

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