M/S. Amir Chand Om Parkash vs M/S. Rajni Industries on 11 July, 2011

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                          FAO No.48/2011

%                                                        11th July, 2011

M/S. AMIR CHAND OM PARKASH                               ...... Appellant
                    Through:           Mr. V.P. Ghiraiya, Advocate


                          VERSUS

M/S. RAJNI INDUSTRIES                                   ...... Respondent
                          Through:     Mr. Satinder Singh Mathur, Advocate

CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

    1.   Whether the Reporters of local papers may be
         allowed to see the judgment?

    2.   To be referred to the Reporter or not?    Yes

    3.   Whether the judgment should be reported in the Digest? Yes


VALMIKI J. MEHTA, J (ORAL)

+ FAO No.48/2011            and    C.M.   Nos.2360/2011,       2361/2011         and
2364/2011

1.            The challenge by means of this first appeal is to the impugned

order dated 11.1.2011 passed by the trial Court dismissing the injunction

application of the appellant/plaintiff filed in a suit for injunction against

violation of a registered trademark device.


2.            The facts of the case are that the appellant/plaintiff claims to be

the registered proprietor of the device which includes the picture of Lord

Hanuman and also uses the word "MAHABIR".              The suit was filed in the

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 infringement of the registered trademark as also for passing off. The

appellant/plaintiff is in the business of selling Dhoopbatti, Agarbatti and

Hawan Samagri.      The respondent/defendant was using its unregistered

trademark "SHRI PANCH MUKHI HUNUMAN". The defendant/respondent even

before filing of the suit had stopped using the picture of Lord Hanuman and

was, in fact, using the picture of a mace.


3.          The trial Court has dismissed the injunction application by

making the following observations:-


       " The trademark "MAHABIR" as used by the plaintiff and the
       trademark "SHRI PANCHMUKHI HANUMAN" as used by the
       defendant are not phonetically similar.           Moreover, the
       comparison of plaintiff‟s carton/label and defendant‟s
       carton/label shows that the trademark "MAHABIR" along with
       the device of "LORD HANUMANJI" and of "SHRI PANCHMUKHI
       HANUMAN" along with the device of "GADDA" does not likely to
       cause deception or confusion in the minds of the public as to
       pass off the goods of the defendant as that of the goods of the
       plaintiff. Accordingly, I am of the opinion that plaintiff has no
       prima facie case so as to restrain the defendant from using the
       trademark "SHRI PANCHMUKHI HANUMAN" along with device of
       "GADDA". However, as the defendant has contended that they
       are not using the device "LORD HANUMANJI" on their products
       prior to the institution of the suit. The defendant is restrained
       from using the device of "LORD HANUMANJI" in their products
       namely Dhoopbatti, Agarbatti and Hawan Samagri till the
       disposal of the suit. Accordingly, the application U/O 39 Rule 1
       and 2 CPC is disposed of. Nothing expressed herein shall
       tantamount to an opinion on the merits of the case."

4.          Learned counsel for the appellant very heavily relies upon a

decision of a Single Judge of this Court in the case reported as Amir Chand

Om Parkash Vs. Monga Perfumery & Floor Mills 1995 PTC (16) 385


FAO No.48/2011                                                      Page 2 of 4
 wherein the defendant was restrained from using the trademark „JAI

BAJRANG BALI‟ and a similar label. It is contended on behalf of the appellant

that the judgment in the case of Amir Chand Om Parkash (supra) clearly

applies in the present case also and therefore the trial Court has committed

an error in dismissing the injunction application. In my opinion, the reliance

placed upon by the counsel for the appellant in the case of Amir Chand Om

Parkash is misconceived because in the facts of the said case, the Court

came to a conclusion that it prima facie appeared taking both the device

marks together that the impugned labels and marks of the defendant were

colourable imitation and substantially similar so as to cause confusion in the

minds of the purchasers(see para 4 of the citation). In the present case, I do

not find any deceptive similarity between the device mark having the picture

of Lord Hanuman alongwith the word „MAHABIR‟ and the trademark of

defendant which is „SHRI PANCHMUKHI HANUMAN‟. There is neither phonetic

nor visual similarity so that any deceptive similarity can be asserted. Before

the plaintiff/appellant is entitled to injunction, it is necessary that there

should be deceptive similarity between marks.      Further, the mark of the

appellant/plaintiff is a device mark and not a word mark and therefore

normally the device will have to be taken as a whole. No doubt, a prominent

part of the device mark also cannot be used by the respondent, however, I

do not find any such issue or deceptive similarity between the word mark

„MAHABIR‟ and „BHAKTI SAGAR SHRI PANCHMUKHI HANUMAN‟.                 Besides


FAO No.48/2011                                                       Page 3 of 4
 using the expression "BHAKTI SAGAR SHRI PANCHMUKHI HANUMAN", the

respondent is also prominently displaying its other trademark viz "T-series"

alongwith the expression "BHAKTI SAGAR SHRI PANCHMUKHI HANUMAN" to

remove any alleged confusion. The facts of the present case do not prima

facie show any scope of the public being deceived.


5.          In view of the above, I do not find any illegality or perversity in

the impugned judgment which calls for interference by the Court in an

appeal.   The appeal is accordingly dismissed.       Nothing contained in the

impugned order will amount to expression on merits of the case. Trial Court

record be sent back.




JULY 11, 2011                                   VALMIKI J. MEHTA, J.

Ne

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