J U D G E M E N T

PUSHPA SATHYANARAYANA, J.

The plaintiff, whose suit for infringement of its trademark and passing off the defendant's products as that of the plaintiff by using the impugned trademark was dismissed, has preferred the above Original Side Appeal.

2. The claim of the plaintiff is that its predecessors had adopted the trademark in the year 1970 for ice creams and the same has been in continuous use ever since then. It is stated that their trademark has been registered under Classes 29 and 30 of the Trademarks Act, 1999. When the plaintiff came to know that the defendant has been using the identical trademark "ARuN" in respect of Ghee, a legal notice was issued on 27.03.2018 requesting the defendant to desist from using plaintiff's trademark.

3. It has been alleged that the defendant has adopted plaintiff's trademark with malafide intention for their business. Since the plaintiff has been using the trademark for more than four decades, the public would reasonably presume that the defendant's products in the identical mark also belong to the plaintiff. The infringing mark of the defendant being identical, would result in confusion and deception among the general public amounting to infringement of plaintiff's registered trademark. Since the plaintiff has been dealing with dairy products, it would be misleading and confusing for any buyer to assume defendant's product as that of the plaintiff, since the goods are belonging to the same class and are sold through the same trade channels. Since the plaintiff has exclusive right over the use of trademark "", the suit has been filed to restrain the defendant from infringing its trademark.

4. The suit was resisted by the defendant. The case of the defendant is that their firm was promoted by one N.Arunachalam and it was named after the deity Arunachaleswarar. The father of the defendant was in the business of Ghee manufacture in the name of Sri Ganapathy Stores from 1965. The defendant manufactures and sells top quality ghee with Agmark Special Grade Certification dated 13.02.1990. Though originally the defendant did not know about the trademark registration, after receipt of the legal notice, they have filed a trademark application seeking registration of their trademark.

5. It is further stated that the plaintiff does not use the trademark with ghee despite getting the registration. As the plaintiff's ghee is called Hatsun ghee. The defendant further contended that the plaintiff did not use the trademark for the goods ghee, though the use of " " is only for ice creams. Therefore, there is no chance of any confusion as alleged in the minds of the buyers, while purchasing defendant's product, namely Ghee from a retail store, as that of the plaintiff's products. Besides, the mark and the label with the logo are distinguishable and it will not cause any confusion in the minds of the buyers.

6. Admittedly, the ice cream of the plaintiff is sold in exclusive outlets, whereas the defendant's ghee is being sold in retail market. The defendant being the prior user of the word ' for ghee is entitled to continue their trade using the said mark for their product, as Section 34 of the Trademarks Act, 1999, protects the right of the prior user. Hence the defendant had sought for dismissal of the suit, as there is no infringement as alleged by the plaintiff.

7. On the side of the plaintiff, Assistant General Manager of the plaintiff was examined as PW1 and 32 documents were filed as Exs.P1 to P32. On the side of the defendant, one A.Shanmugam, was examined as DW1 and 26 documents were marked as Exs.D1 to D26.

8. Based on the pleadings and evidence, the trial court had framed as many as 10 issues and after considering the same elaborately, the learned single Judge had dismissed the suit. Aggrieved by the said decision, the plaintiff has preferred the above appeal.

9. Admittedly, the dispute relates to the product ghee sold by the defendant, who is the respondent herein, by using the name "ARuN"