JUDGMENT :

1. This first appeal has been filed by the plaintiff being aggrieved of judgment and decree dated 25.10.2018 passed by learned Additional District and Sessions Judge, Varanasi in Original Suit No.31 of 2017 dismissing an application under Order XXXIX Rule 1 and 2 Civil Procedure Code, 1908.

2. Brief facts of the case are that plaintiff-appellant carries on business under the trade mark ''MODI' and it is the case of the appellant that they are using this trade mark since 1986 whereas the defendant deceptively uses trade mark ''STAR MODI' which is not only subsequent but attempts to promote their products at the cost of the product of the plaintiff-appellant and therefore, prayed for injunction against the defendants from using such trade mark.

3. It is submitted that learned trial court failed to appreciate the facts of the case in correct perspective and has dismissed the application for injunction under Order XXXIX Rule 1 and 2 C.P.C. in an arbitrary and casual manner. It is prayed that impugned order be set aside and defendants be restrained from using trade mark ''STAR MODI'.

4. In the present case, dispute is that plaintiff-appellant has been using trade mark ''MODI' since 1986 and the trade mark of the defendant, namely, ''STAR MODI', is deceptively similar. It is also submitted that once a trade mark is registered, then as per the provisions contained in Section 31 of Trade Marks Act, 1999, registration is to be treated as prima facie evidence of validity. It is further submitted that as per the provisions contained in Section 31 (1) of Trade Marks Act, 1999, in all legal proceedings relating to a trade mark registered under this Act, the original registration of the trade mark and of all subsequent assignments and transmissions of the trade mark shall be prima facie evidence of the validity thereof., but the trial court has failed to appreciate that since trade mark of the plaintiff has achieved, secondary distinctiveness of a kind immediately relating the product of the plaintiff, therefore, injunction should have been passed.

5. Reliance is placed on the judgment of Hon'ble Supreme Court in case of Parle Products (P) Ltd. Vs. J.P. And Co., Mysore, 1972 AIR (SC) 1359, wherein the dispute was, in regard to word "Gluco" used by the appellant in their half pound biscuit packets alongwith the wrapper with its colour scheme used in connection with sale of their biscuits known as 'Parle s Gluco Biscuits'. Wherein, it has been held as under:-

"According to Karly's Law of Trade Marks and Trade Names (9th Edition Paragraph 838):

Two marks, when placed side by side, may exhibit many and various differences, yet the main idea left on the mind by both may be the same. A person acquainted with one mark, and not having the two side by side for comparison, might well be deceived, if the goods were allowed to be impressed with the second mark, into a belief that he was dealing with goods which bore the same mark as that with which he was acquainted. Thus, for example, a mark may represent a game of football; another mark may show players in a different dress, and in very different positions, and yet the idea conveyed by each might be simply a game of football. It would be too much to expect that persons dealing with trade marked goods, and relying, as they frequently do, upon marks, should be able to remember the exact details of the marks upon the goods with which they are in the habit of dealing. Marks are remembered rather by general impressions or by some significant detail than by any photographic recollection of the whole. Moreover, variations in detail might well be supposed by customers to have been made by the owners of the trade mark they are already acquainted with for reasons of their own."

6. Similarly reliance is placed on the judgment of Hon'ble Supreme Court in the case of K.R. Chinna Krishna Chettiar Vs. Sri Ambal and Co. and Another AIR 1970 SC 146, wherein it has been held that if there is striking phonetic resem