{"id":83344,"date":"2007-02-22T00:00:00","date_gmt":"2007-02-21T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/encore-electronics-ltd-a-vs-anchor-electronics-and-on-22-february-2007"},"modified":"2017-11-19T12:49:43","modified_gmt":"2017-11-19T07:19:43","slug":"encore-electronics-ltd-a-vs-anchor-electronics-and-on-22-february-2007","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/encore-electronics-ltd-a-vs-anchor-electronics-and-on-22-february-2007","title":{"rendered":"Encore Electronics Ltd., A … vs Anchor Electronics And … on 22 February, 2007"},"content":{"rendered":"
Bombay High Court<\/div>\n
Encore Electronics Ltd., A … vs Anchor Electronics And … on 22 February, 2007<\/div>\n
Equivalent citations: 2007 (5) BomCR 262, 2007 (109) Bom L R 639, MIPR 2007 (2) 84, 2007 (35) PTC 714 Bom<\/div>\n
Author: D Chandrachud<\/div>\n
Bench: R Khandeparkar, D Chandrachud<\/div>\n<\/p>\n
<\/pre>\n
JUDGMENT<\/p>\n
D.Y. Chandrachud, J.<\/p>\n
Page 0642<\/p>\n
1. The Defendant in a suit for infringement and passing off  is in appeal against an interlocutory order of injunction granted by  the Learned Single Judge on 23rd September, 1997.\n<\/p>\n
2. The Respondent before the Court instituted a suit for  injunction restraining the Appellant from in any manner using the  mark “Encore” or any other deceptively similar mark in relation to  electrical or electronic goods including dish antennae. The action  was based on a case of infringement and for passing off. The  Plaintiff is a registered proprietor of various trademarks including  the word marks Anchor, Ankur, Anchor, Ankar, Anker, Ansor and  Ancor. Registration has been granted to the Plaintiff in respect of  goods falling in Classes 9 and 11 of the IVth Schedule to the  Trademark Rules in relation to a large number of electrical  appliances and electronic goods. The Plaintiff was incorporated on  11th June, 1990. The trademark “Anchor” which forms the subject  matter of the proceedings was first adopted in the year 1963 by Page 0643 the  predecessor of the Plaintiff which was a partnership firm. When  the Plaintiff took over the business of the firm in 1990, the gross  annual turnover was in excess of Rs. 50 Crores and the products  manufactured and marketed under the “Anchor” mark included a  wide range of electrical and electronic items. Upon assignment of  the mark to the Plaintiff, applications were filed before the Registrar  of Trademarks for bringing the name of the Plaintiff on the record  as the subsequent proprietor. The applications were allowed. In  1990, the volume of sales in respect of electrical and electronic  goods on which the mark was used stood at Rs. 49.73 Crores. An  amount of Rs. 1.19 Crores was expended in 1990 for  advertisements and publicity for the mark. The Plaintiff has used  the mark “Anchor” either by itself or with the device of an anchor on  leaflets, literature, letterheads and publicity material. The  trademark of the Plaintiff is stated to have become “a household  word” and the products of the Plaintiff together with the associated  mark are stated to have been utilized in locations as diverse as  government and public buildings, cinema halls, schools, factories  and private homes.\n<\/p>\n
3. According to the Plaintiffs it was in May 1992 that they  learnt that the Defendant had started dealing in dish antennae  under the mark “Encore”. A notice was addressed by the Plaintiff  on 7th May, 1992 to the Defendant calling upon the Defendant to  cease and desist from using the said mark. It appears that the  Defendant had come out with a public issue of share capital.  According to the Plaintiff it received queries from several sources  enquiring whether it was the Plaintiff that was associated with the  issue of share capital. According to the Plaintiff, the mark “Encore”  is deceptively similar to the registered mark of the Plaintiff and is  being used in respect of the same goods in respect of which the  mark of the Plaintiff is registered. Moreover, it has been averred  that when the mark “Anchor” is pronounced or written in Gujarati or  Devanagari scripts, it appears “very close” to the registered  trademarks of the Plaintiff. The Plaintiff avers that the word  “Anchor” forms a part of its corporate name and trading style and  has been associated by traders and by members of the public,  exclusively with the Plaintiff. The corporate name, according to the  Plaintiff, has acquired a reputation in the market and the Defendant  has adopted the corporate name and style of “Encore Electronics  Limited” which is deceptively similar, misleading and liable to cause  confusion.\n<\/p>\n
4. In the affidavit in reply, the Defendant states that it  engages in the manufacture of Cable T.V. Equipment and other  electronic items. The Defendant had applied for registration of its  trademark “Encore” with the Registrar of Trademarks on 20th July,  1992. The Defendant claims to have been known as a  manufacturer of Cable T.V. Equipment since 1989. According to  the Defendant the Plaintiff is a manufacturer mainly of electrical  goods which are available in a general hardware store whereas the  Defendant manufactures sophisticated electronic equipment  catering to a specialized market. According to the Defendant the  maximum price of the Plaintiff’s product would not exceed  Rs. 1,000\/-per piece whereas the dish antennae manufactured by  the Defendant would not cause less than Rs. 50,000\/-for the  smallest of the antenna manufactured. The manufacture of dish  antennae and other ancillary equipment is thus according to the  Defendant not similar Page 0644 to the product of the Plaintiff. According to  the Defendant it has established a substantial presence in the  market in the field of electronic goods like dish antennae.\n<\/p>\n
5. The Learned Single Judge by an order dated 23rd  September, 1997 granted an interlocutory injunction. The Learned  Judge was of the view that both phonetically as well as visually, the  mark of the Defendant is similar to the mark of the Plaintiff.  Moreover, both in Gujarati and Devanagari scripts, the word  “Encore” is written in a manner similar to the word “Anchor”.  Hence, the mark of the Defendant is according to the Learned  Single Judge identical or deceptively similar to the Plaintiff’s mark  “Anchor” and the adoption thereof by the Defendant as a part of its  trading style amounts to an infringement of the Plaintiff’s mark and  a passing off of the goods of the Defendant as those of the Plaintiff.  The Learned Single Judge noted that there is no explanation by the  Defendant as to how it came to adopt the work “Encore” in the first  place. The user of the mark by the Defendant has been held not  to be bonafide and it has been found that the Defendant had  deliberately adopted the mark to trade on the reputation of the  Plaintiff with the knowledge that the mark “Anchor” is an  established mark in respect of electrical and electronic goods. The  Learned Single Judge observed that the Plaintiff has spent a  considerable amount by way of publicity to popularize its trademark  “Anchor”. Due regard has been had to the sales figures of the  Plaintiff for the year 1990, and the Defendant’s user has been held  not to be either honest or concurrent. The Learned Single Judge  has held that the Defendant is manufacturing dish antennae on the  one hand, while the Plaintiff is manufacturing electronic goods and  equipment including video-audio, MATV – CATV equipment and  accessories. All these have been held to be electronic items.  Several items are manufactured by the Plaintiff as well as the  Defendant. While the Plaintiff had produced material evidencing  the extent of its business, no sales figures have been placed on the  record by the Defendant. Having regard to all these  circumstances, the Learned Single Judge was of the view that an  order of injunction was warranted.\n<\/p>\n
6. In assailing the order of the Learned Single Judge  counsel appearing on behalf of the Defendant submitted that in  considering a case of deceptive similarity, the rival marks have to  be looked at as a whole. The Plaintiff, it has been urged,  essentially manufactures electrical switches while the Defendant  manufacturers dish antennae. The trade channels, customers as  well as the products manufactured are, it was submitted, different.  The prices of the rival products are different. It was submitted that  a purchaser of the Defendant’s product would be a cable operator  or a person in the trade while on the other hand the Plaintiff does  not manufacture dish antennae at all. The approach of the  Learned Single Judge was sought to be assailed and it was urged  that the Learned Judge had erred in splitting up the word marks of  the Plaintiff and the Defendant for the purposes of comparison.  According to the Defendant no material in support of the plea of  deception has been forthcoming and the letters on which reliance  has been placed by the Plaintiff pertain to the issue of share  capital. Finally, it was sought to be urged that there is no material  on the record to show that the Plaintiff has an established  reputation in respect of electronic goods.\n<\/p>\n
Page 0645<\/p>\n
7. On behalf of the Plaintiff the order of injunction passed  by the Learned Single Judge has been supported by adverting to  the circumstance that the mark “Anchor” has been used initially by  the Plaintiff’s predecessor and later, by the Plaintiff, since 1963.  Adoption by the Defendant of the mark was over 25 years  thereafter since the year 1989. The sales figures of the Plaintiff  demonstrate an established business and the extent of advertising  expenditure, it was urged, would substantiate the goodwill  associated with the mark of the Plaintiff. Both the goods of the  Plaintiff as well as the Defendant, it was submitted fall in Class 9 of  the IVth Schedule to the Trademarks Rules, 1958. The mark of  the Defendant, it was submitted, is visually, structurally and  phonetically similar to the mark of the Plaintiff. The Defendant, it  was submitted, has no cogent explanation for the adoption of a  mark which is deceptively similar, save and except to say that the  mark used by the Defendant is a French word. Finally, it was  submitted that no sales figures were placed before the Learned  Single Judge by the Defendant nor is any ground urged in the  memo of appeal that though the sales figures were placed on the  record, they have not been duly noted in the order impugned in the  appeal. The learned Counsel submitted that whether a confusion is  liable to be caused by the use of the mark by the Defendant is  ultimately a matter to be decided by the Court and in the present  case having regard to the substantial similarity between the two  marks a case for the grant of an interlocutory order of injunction  has been made out.\n<\/p>\n
8. While considering the merits of the rival submissions that  have been urged on behalf of the parties, at the outset we note that  the use of the trademark ‘Anchor’ by the predecessor-in-title of the  Plaintiff dates back to 1963. The word ‘Anchor’ is an essential part  of the corporate name of the Plaintiff. The pleading before the  Court is that the mark ‘Anchor’ has a distinctive character and is  associated both by traders as well as by members of the public  exclusively with the Plaintiff as regards electrical and electronic  goods. The mark ‘Encore’ was adopted by the Defendant nearly  25 years later, in 1989. The sales of the Plaintiff increased from  Rs. 6,300\/-in 1964 to Rs. 1.76 crores in 1973, Rs. 10.12 crores in  1983 and by the year 1990 were to the extent of Rs. 49.73 crores.  The expenses incurred on advertising the electronic and electrical  goods sold by the Plaintiff were to the extent of Rs. 1.19 crores in  1990. At the interlocutory stage, the Learned Single Judge was,  therefore, justified in drawing the inference that the mark ‘Anchor’  that is used by the Plaintiff on electrical and electronic goods has  acquired a distinctive character. Associated with the mark is the  goodwill and reputation which connects the mark with the goods of  the Plaintiff. By the time that the suit was instituted in 1992, the  goodwill had grown over a long period of three decades during the  course of which the mark was adopted, initially by the predecessor- in-title of the Plaintiff and thereafter by the Plaintiff. The  submission of the Plaintiff that the goodwill and reputation  associated with the mark are significant enough to lead to the  inference that the mark ‘Anchor’ is a household name reflective of  the products which the Plaintiff manufactures and sells can prima  facie be accepted.\n<\/p>\n
9. The phonetic similarity between ‘Anchor’ on the one hand  and ‘Encore’, on the other, is striking. The two marks are  phonetically, visually and Page 0646 structurally similar. The overall  impression conveyed by a mark as a whole, has to be assessed in  evaluating whether the mark of the Defendant is deceptively  similar to the mark of the Plaintiff. Phonetic similarity constitutes  an important index of whether a mark bears a deceptive or  misleading similarity to another. The phonetic structure indicates  how the rival marks ring in the ears. Courts in a country such as  ours whose culture is enriched by a diversity of languages and  scripts have to consider how the rival marks are spelt and  pronounced in languages in which they are commonly used.  Counsel for the Defendant submits before the Court that while  ‘Encore’ is a word of French origin, ‘Anchor’ is a word of English  usage and the pronounciation of the two words must differ. The  submission misses the point. The case before the Court is not  about how an Englishman would pronounce ‘Anchor’ or a  Frenchman would pronounce ‘Encore’. The Court must consider  the usage of words in India, the manner in which a word would be  written in Indian languages and last but not least, the similarity of  pronounciation if the rival marks were to be pronounced in  languages prevalent in the country where the marks are used.  The manner in which the ‘a’ as in ‘anchor’ is pronounced by an  Englishman on Notting Hill may well appear to a discerning  traveller to be distinct from a Frenchman’s pronounciation of the ‘e’  in ‘encore’ on a fashionable by lane near Champs Elysees. That is  no defence to an action in our Courts for passing off: For the  ordinary consumer in Ahmedabad and her counterpart in Mumbai’s  shopping streets, the ‘a’ in ‘anchor’ and the ‘e’ in ‘encore’ are  perilously and deceptively similar. The Court must assess the  make up of an Indian consumer and, associated with that, the  cultural traits that underlie the spelling and pronouncation of words.  The case of the Plaintiff is that in Gujarati as well as in Hindi, there  is not even a subtle distinction between the manner in which  ‘Anchor’ and ‘Encore’ would be pronounced and we find merit in the  submission. The overall impact in terms of phonetical usage is  one of striking similarity. The test is not whether a customer who  wishes to buy the product of the Plaintiff is likely to end up buying  the product of the Defendant. The test is whether the ordinary  customer is likely to be led to believe that ‘Encore’ is associated  with the mark and the trading style of the Plaintiff. The phonetical,  visual and structural get up of the two words is so strikingly similar  as to lead to a likelihood of deception. The question of deception  is a matter for the Court to determine, particularly at the  interlocutory stage. The judgment of the Learned Single Judge  has been criticized on the ground that the Court attempted to break  up the words contained in the rival marks. We do not share that  perception. What the Learned Single Judge has done in the  present case is to compare the two rival marks and to emphasize a  striking similarity between the marks with reference to the common  features of the rival words. That is a permissible exercise and the  judgment of the Learned Single Judge does no more than that.\n<\/p>\n
10. The Defendant has no bonafide or logical explanation for  the adoption of the mark. To merely assert that the mark of the  Defendant has an origin in the French language is no explanation  whatsoever. That in our view, is merely an afterthought to conjure  up some justification for the adoption of a mark which is  deceptively similar. This is not a case where it can be said that  there was a bonafide, honest and concurrent use of the mark by  the Page 0647 Defendant. In the affidavit in reply to the Notice of Motion filed  by a Director of the Defendant, there are only broad generalities  bereft of factual details. The Defendant claims to be “a leading  manufacturer of Cable TV Equipment in India” and “to have now  established a substantial presence in the market in the field of  electronics like Dish Antenna etc.” (para 9). Significantly, in the  affidavit, there is absolutely no disclosure of the extent of the  business, sales or turn over of the Defendant. The Learned Single  Judge was justified in drawing an adverse inference against the  Defendant on this ground. Common field of activity <\/p>\n
11. One of the principal defences to the action for passing off  in this case is that the field of activity of the Defendant is not the  same as that of the Plaintiff. After all, the submission goes, the  Plaintiff manufactures electrical and electronic goods while the  Defendant manufactures dish antennae. Associated with the  differences in the products manufactured, there is, according to the  Defendant a variation in the price range of the rival products. The  trade channels, it has been submitted, would be different and the  consumer who would purchase a product of the Plaintiff would not  necessarily be in the market for purchasing one of the dish  antennae of the Defendant. Conversely, a consumer who sets out  to purchase a dish antenna would not be in the same market as the  one where the Plaintiff’s electrical and electronic goods are  available for sale. So the submission is that there is no likelihood  of confusion.\n<\/p>\n
12. The submission requires an analysis of the issue  whether a common field of activity is an ingredient which is  necessary in order to sustain a claim for injunction in an action for  passing off. An incisive discussion on the origin of the common  field of activity test is contained in a judgment of the Court of  Appeal in England in Harrods Limited v. Harrodian School  Limited (1996) R. P. C. 697. Millett, L.J. noted in the course of the judgment that the  expression “common field of activity” was enunciated in a judgment  in McCulloch v. May (1948) 65 R.P.C. 58 where Wynn-Parry J.  dismissed a claim of the Plaintiff for want of the factor. In Harrods  the Court of Appeal, however, noted that the application of this test  was contrary to several previous authorities, for example, Eastman  Photographic Materials Co. Ltd. v. John Griffiths Cycle  Corporation Ltd. (1898) 15 R.P.C. 105 (cameras and bicycles)  and Walter v. Ashton (1902) 2 Ch. 282 (The Times newspaper  and bicycles). The Court of Appeal noted that the test in fact “is  now discredited”. The Court of Appeal then observed that in  several judgments the absence of a common field of activity  notwithstanding, the power of the Court to grant relief in an action  for passing off had been recognized:\n<\/p>\n
 In the Advocaat case Lord Diplock expressly recognised  that an action for passing off would lie although “the  plaintiff and the defendant were not competing traders in  the same line of business”. In the Lego case Falconer J.  acted on evidence that the public had been deceived into  thinking that the plaintiffs, who were manufacturers of  plastic toy construction kits, had diversified into the  manufacture of plastic irrigation equipment for the  domestic garden. What the plaintiff in an action for  passing off must prove is not the existence of a common  field of activity but likely confusion among the common  customers of the parties.\n<\/p>\n
Page 0648<\/p>\n
13. The judgment of the Court of Appeal notes that while the  absence of a common field of activity is not fatal to an action for  passing off, it is at the same time an ‘important and highly relevant  consideration’ in deciding whether there is a likelihood of confusion.  That is because the existence or otherwise of a common field of  activity would be relevant to determine whether the public would  associate a kind of association between the field of activities of the  Plaintiff and that of the Defendant. The extent of the burden in  such a case depends upon the prominence and goodwill  associated with the mark of the Plaintiff:\n<\/p>\n
 Where the plaintiff’s business name is a household  name the degree of overlap between the fields of activity  of the parties’ respective business may often be a less  important consideration in assessing whether there is  likely to be confusion, but in my opinion it is always a  relevant factor to be taken into account.\n<\/p>\n
14. Where the relationship between the respective fields of  activity of the Plaintiff and the Defendant is only tenuous, the  burden of proving the likelihood of confusion and the resulting  damage is heavy. The judgment of the Court of Appeal recognizes  that in a classic case of passing off where both the Plaintiff and the  Defendant are engaged in the same activity and the Defendant  represents his goods as being those of the Plaintiff, there is an  obvious risk of damage to the business of the Plaintiff by  substitution. The Plaintiff is liable to suffer a loss of his clientele,  which transfers its custom to the Defendant on the mistaken  assumption that the goods of the Defendant are in fact the goods  of the Plaintiff. However, this is not the only kind of damage that is  liable to be caused to the goodwill of the Plaintiff. When parties are  not in competition with each other, the reputation and goodwill of  the Plaintiff may yet be damaged without a corresponding gain to  the Defendant. Millett L.J. noted that for example in the Lego case,  a customer who was dissatisfied with the plastic irrigation  equipment of the Defendant may be dissuaded from buying a  plastic toy construction kit for his children if he believed that it was  made by the Defendant. “The danger in such a case is that the  plaintiff loses control over his own reputation”. (at page 715).\n<\/p>\n
15. The departure from a strict application of the common  field of activity test is exemplified by the dictum contained in the  judgment in Teleworks Limited v. Telework Group PLC (2002) R. P. C. 27. The  judgment inter alia lays down the following principles:\n<\/p>\n
(i) The action in passing off can, as the law stands,  adequately protect the development of a growing  business. Thus if a claimant has at the relevant date  only a modest business in one or two lines of goods, he  can still succeed in a passing off action against a  company selling other goods. It all depends on whether  the evidence establishes that purchasers would be led  into the belief that the defendant company was now  selling these new goods.\n<\/p>\n
(2) If the claimant’s reputation at the relevant date is  inadequate to induce people to believe that the  defendant’s goods and services are the claimant’s, or  connected with him, then that is the end of the matter. It  is not right to go on to consider evidence of future  developments of the claimants’ business.\n<\/p>\n
Page 0649<\/p>\n
(3) It is of course legitimate in a passing off case, as in  any other case where the protection of the court is  sought by way of injunctive relief, to look not only at the  actual acts of the defendant, but his threatened acts as  well. If the evidence establishes a tangible threat by the  defendant to trade in a significantly different way from  that in which it currently trades, then it is right to consider  whether that conduct, viewed against the established  reputation of the claimant, would be likely to give rise to  deception or confusion.\n<\/p>\n
(4) There is no requirement in the law of passing off for  the claimant and the defendant to be operating in the  same field. However, that is not to say that the existence  or otherwise of an overlap is not highly relevant to  assessing the evidence of misrepresentation. The  question of whether two companies trade in the same  field can be affected by the level of particularity with  which one defines the field.\n<\/p>\n
16. The judgment of Mr. Justice Brightman in John Walker  & Sons Limited v. Rothmans International Limited and John  Sinclair Limited 1978 F. S. R. 357 emphasises that a case of passing off may yet  be established though the Plaintiff and the Defendant do not trade  in the same or an associated field. In such a case there is no  possibility of what is called product confusion – in the case before  the Court there the Judge noted that no one would purchase the  Defendant’s cigarettes which were sold under the mark of Red  Label thinking that he was buying the Plaintiff’s Red Label Whisky.  That notwithstanding, the use of a name in which the Plaintiff has  acquired a significant reputation with the public may warrant an  order of restraint when the use of a deceptively similar name by the  Defendant may lead the public to confuse that the product of the  Defendant has associated with it the hallmark of quality of the  Plaintiff:\n<\/p>\n
 To put the matter in general terms, if one trader  acquires a reputation with the public in relation to a  particular name or get-up, the use of that name or get-up  by another trader in either an associated field or even in  a different field may be restrained if the public may be  confused into thinking that the product or service of the  other trader has the cachet of the first trader’s  established name or get-up. This is to be distinguished  from what may be called product confusion. In the case  with which I am concerned there is obviously no  possibility whatever of product confusion. No one would  purchase the defendants’ Red Label cigarettes thinking  that he was buying the plaintiffs’ Red Label whisky. The  confusion, if any, is only that of name.\n<\/p>\n
17. Kerly’s Law of Trademarks and Trade Names,  Fourteenth Edition page 447 posits the principle of law that there is  no rule that the Defendant must operate in the same field of activity  as the claimant. This, however, does not mean that an  examination of their respective fields of activity is irrelevant since  the more remote the activities of the parties, the stronger would be  the evidence needed to establish misrepresentation and the real  likelihood of damage that are the prerequisite of a right of action in  passing off. The judgment of the Supreme Court in Cadila Health  Care Ltd. v. Cadila Pharmaceuticals Ltd.<\/a>  also indicates that the  nature of the goods in respect of Page 0650 which the trademarks are used  and the similarity in the nature, character and performance of the  goods of the rival traders are factors to be considered in the  ultimate evaluation.\n<\/p>\n
18. In the present case, it is a matter of significance that the  marks registered by the Plaintiff fall in Class 9 and Class 11 of the  IVth Schedule to the Trade and Merchandise Marks Rules 1959.  Clause 9, in particular is to the following effect:\n<\/p>\n
 9. Scientific, natural, surveying and electrical apparatus  and instruments (including wireless), photographic,  cinematographic, optical, weighing, measuring,  signalling, checking (supervision) life-saving and  teaching apparatus and instruments; coin or counter- freed apparatus; talking machines; cash registers;  calculating machines; fire-extinguishing apparatus.\n<\/p>\n
19. The goods which are manufactured by the Defendant  indeed fall in the same class. In fact, the application for registration  submitted by the Defendant on 20th July, 1992 was for the  registration of a large body of goods consisting of a whole range of  apparatus and equipment falling in Class 9 of the IVth Schedule.  In the present case, therefore, it cannot be said that the field of  activity of the Defendant is so far removed from the field of activity  of the Plaintiff as to render the possibility of confusion remote  enough to be unworthy of judicial recognition. The rival fields are,  on the contrary, proximate. Undoubtedly, a possibility of product  confusion may not exist where the goods of the Defendant are not  identical to the goods of the Plaintiff. However, where as in the  present case the fields of activity have a broad and reasonable corelation,  there is a likelihood of confusion in the sense that a  customer who seeks to purchase the goods of the Defendant is  liable to believe that associated with those goods is the hallmark of  quality that has become associated with the goods of the Plaintiff.  Added to this circumstance is the important consideration in the  present case that the use of the mark “Anchor” by the Plaintiff over  a span of three decades has made it virtually a household name in  the field of electrical and electronic appliances. The likelihood of  confusion in such a case is amplified making it necessary for the  Court to protect the goodwill and the business reputation  associated with the mark of the Plaintiff.  Phonetic Similarity <\/p>\n
20. The contention of the Defendant before the Court is that  the mark of the Defendant traces its origin to a French word ‘ encore’ while the mark of the Plaintiff is pure and simple, a word in  the English language – ‘anchor’. The element of phonetic similarity  has always been regarded in the law to be an important index in an  action for passing off. Where rival marks bear a close phonetic  resemblance the ingredients required for establishing deceptive  similarity would be found to exist. In the leading decision on the  subject – the Pianotist rendered as far back as 9th November, 1906  (1906 R. P.C. 774) Mr. Justice Parker laid down a test which has  been accepted by the Supreme Court in India as well. The  judgment in Pianotist tells us that the Judge “must take the two  words…” and that he ” must judge of them, both by their look and  by their sound”. Kerly’s Law of Trade Marks and Trade Names,  Fourteenth Edition (page 600) summarizes the principle succinctly  by stating that it is both the ear as well as the eye that must be  considered.\n<\/p>\n
Page 0651<\/p>\n
21. The test of phonetic similarity was accepted in the  judgment of the Supreme Court in Amritdhara Pharmacy v. Satya  Deo . In Durga Dutt Sharma v. N. P. Laboratories  the Supreme  Court held thus:\n<\/p>\n
 In an action for infringement, the plaintiff must, no doubt,  make out that the use of the defendant’s mark is likely to  deceive, but where the similarity between the plaintiff’s  and the defendant’s mark is so close either visually,  phonetically or otherwise and the Court reaches the  conclusion that there is an imitation, no further evidence  is required to establish that the plaintiff’s rights are  violated.\n<\/p>\n
These principles were reiterated in a judgment of the Supreme  Court in Cadila Health Care Ltd. v. Cadila Pharmaceuticals Ltd.<\/a>   holding that the earlier decision of a Bench of two Learned  Judges in S. M. Dyechem Ltd. v. Cadbury (India) Ltd.<\/a> (2000)5 SCCC 573 which had  taken a contrary view did not lay down the correct position. The  larger Bench in Cadila Health Care Ltd. held that it was not  correct in law to hold “that the principle of phonetic similarity has  to be jettisoned when the manner in which the competing words  are written is different”. The Court held that both Amritdhara and  Durga Dutt Sharma’ s cases (supra) had accepted the relevance of  the test of phonetic similarity. In the present case, the reliance  placed in the course of the submissions on behalf of the Defendant  of its mark having an origin in a French word is, as already noted in  the earlier part of the judgment neither bonafide nor an honest  defence. The Court must have a realistic consciousness of the fact  that both the marks are used in the Indian market and it is a  consumer in India whose observation and assessment must guide  the decision making. The manner in which the rival marks would be  ordinarily pronounced and the manner in which the marks would be  written in Indian languages constitutes an important indicator of  whether a case of deceptive similarity has been established. As  the Learned Single Judge stated both the marks contained an  overwhelming emphasis on the letters ‘ncor’ and the fact that the  mark of the Plaintiff begins with an “a” while the mark of the  Defendant begins with an “e” would make little difference to the  manner in which the rival marks are pronounced. The manner in  which the marks would be written in the Gujarati and Devanagari  scripts bears a close resemblance – close enough for an intending  purchaser of the product of the Defendant to be led to believe that  the goods of the Defendant have associated with them the goodwill  and reputation which is associated with the mark of the Plaintiff.\n<\/p>\n
22. In these circumstances, the order passed by the Learned  Single Judge cannot be faulted. The Plaintiff has established a  prima facie case for the grant of an order of injunction. The  essential requirements in an action for passing off have been duly  established. The balance of convenience lies in favour of the  Plaintiff. The large turn over of the Plaintiff is borne out by the  figures which have been disclosed in the plaint. The Plaintiff has  expended Page 0652 extensive sums of money in advertising and publicity.  Irreparable harm and prejudice is liable to be caused to the  business of the Plaintiff, unless an interlocutory order of injunction  were to be passed as prayed. The goodwill and reputation  associated with the Plaintiff’s mark, cultivated as it has been over a  period of three decades when the suit was instituted would be  liable to suffer serious damage unless the Defendant was to be  injuncted. The Learned Single Judge was not in error in granting  an interlocutory order of injunction.\n<\/p>\n
23. We do not find any reason to interfere. The Appeal shall  accordingly stand dismissed. Costs in the suit.<\/p>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court Encore Electronics Ltd., A … vs Anchor Electronics And … on 22 February, 2007 Equivalent citations: 2007 (5) BomCR 262, 2007 (109) Bom L R 639, MIPR 2007 (2) 84, 2007 (35) PTC 714 Bom Author: D Chandrachud Bench: R Khandeparkar, D Chandrachud JUDGMENT D.Y. Chandrachud, J. Page 0642 1. The Defendant […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-83344","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nEncore Electronics Ltd., A ... vs Anchor Electronics And ... on 22 February, 2007 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/encore-electronics-ltd-a-vs-anchor-electronics-and-on-22-february-2007\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Encore Electronics Ltd., A ... vs Anchor Electronics And ... on 22 February, 2007 - 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