Delhi High Court
Krbl Limited vs Praveen Kumar Buyyani & Ors. on 15 January, 2025
Author: C.Hari Shankar
Bench: C. Hari Shankar
$~85
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ FAO (COMM) 24/2024
KRBL LIMITED .....Appellant
Through: Mr. Anirudh Bakhru, Mr. SK
Bansal, Mr. Deepak Shrivastava and Mr.
Vijay C Rathi, Advs.
versus
PRAVEEN KUMAR BUYYANI & ORS. .....Respondents
Through:
CORAM:
HON'BLE MR. JUSTICE C. HARI SHANKAR
HON'BLE MR. JUSTICE AJAY DIGPAUL
JUDGMENT(ORAL)
% 15.01.2025
C.HARI SHANKAR, J.
[Statutory provisions have been reproduced in the footnotes to the
extent relevant.]
1. Learned Counsel who appears on behalf of the respondents
submits that his client is not in touch with him. He seeks discharge,
which is allowed.
2. Notice was issued in this matter as far back as on 12 February
2024. On 23 August 2024, this Court had directed that this matter be
listed for final hearing in the category of final hearing matters.
Thereafter, the matter has been listed twice. The respondents is the
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beneficiary of the order under challenge in this appeal, whereby the ad
interim injunction granted to the appellant-plaintiff by his predecessor
has been vacated by the learned District Judge (Commercial Court) 1.
Given the nature of the order which is under challenge and the fact
that this case has been listed on several earlier occasions, we are not
inclined to adjourn the matter awaiting the convenience of the
respondents.
3. In our view, the impugned order is patently illegal and cannot
sustain.
Facts
4. The facts are brief.
5. The appellant was the registered owner of the trademark INDIA
GATE, of which it has been using the mark since 1993 for rice. The
respondents also started dealing with rice under the name BHARAT
GATE.
6. In these circumstances, the appellant approached the learned
Commercial Court by way of CS (Comm) 284/20202, seeking a
permanent and mandatory injunction against the respondents using the
name BHARAT GATE, apart from attendant reliefs, submitting that it
amounted to infringement of the appellant’s registered trademark
1 “the learned Commercial Court” hereinafter
2 KRBL Ltd v Praveen Kumar Buyyani
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“INDIA GATE” within the meaning of Section 293 of the Trade
Marks Act, 1999 as well as an attempt by the respondents to pass off
its product as the product of the appellant. The plaint was
accompanied by an application under Order XXXIX Rules 1 and 2 of
the Code of Civil Procedure, 19084, seeking interlocutory injunction
restraining the respondents, pending disposal of the suit, from using
the mark BHARAT GATE for rice or any allied or cognate products.
7. Photographic reproductions of the packs of the appellant and
respondents, depicting the rival marks, may be provided thus:
3 29. Infringement of registered trade marks. –
(1) A registered trade mark is infringed by a person who, not being a registered proprietor or
a person using by way of permitted use, uses in the course of trade, a mark which is identical with,
or deceptively similar to, the trade mark in relation to goods or services in respect of which the
trade mark is registered and in such manner as to render the use of the mark likely to be taken as
being used as a trade mark.
(2) A registered trade mark is infringed by a person who, not being a registered proprietor or
a person using by way of permitted use, uses in the course of trade, a mark which because of–
(a) its identity with the registered trade mark and the similarity of the goods or
services covered by such registered trade mark; or
(b) its similarity to the registered trade mark and the identity or similarity of the
goods or services covered by such registered trade mark; or
(c) its identity with the registered trade mark and the identity of the goods or
services covered by such registered trade mark,
is likely to cause confusion on the part of the public, or which is likely to have an association with
the registered trade mark.
*****
(4) A registered trade mark is infringed by a person who, not being a registered proprietor or
a person using by way of permitted use, uses in the course of trade, a mark which–
(a) is identical with or similar to the registered trade mark; and
(b) is used in relation to goods or services which are not similar to those for which the trade
mark is registered; and
(c) the registered trade mark has a reputation in India and the use of the mark without due
cause takes unfair advantage of or is detrimental to, the distinctive character or repute of the
registered trade mark.
*****
(6) For the purposes of this section, a person uses a registered mark, if, in particular, he–
(a) affixes it to goods or the packaging thereof;
(b) offers or exposes goods for sale, puts them on the market, or stocks them for
those purposes under the registered trade mark, or offers or supplies services under the
registered trade mark;
(c) imports or exports goods under the mark; or
(d) uses the registered trade mark on business papers or in advertising.
(7) A registered trade mark is infringed by a person who applies such registered trade mark to
a material intended to be used for labelling or packaging goods, as a business paper, or for
advertising goods or services, provided such person, when he applied the mark, knew or had reason
to believe that the application of the mark was not duly authorised by the proprietor or a licensee.
4 “CPC”
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Appellant’s pack Respondent’s pack
8. On 9 October 2020, the learned Commercial Court granted an
ex parte ad interim injunction in favour of the appellant and against
the respondents, restraining the respondents from using the trademark
BHARAT GATE in respect of rice or any other associated or allied
product.
9. The impugned order dated 9 January 2024 finally adjudicates
the application filed by the appellant under Order XXXIX Rules 1 and
2 of the CPC seeking interlocutory injunction against the respondents.
By the impugned order, the learned Commercial Court has vacated the
ad interim injunction granted by the Predecessor on 9 October 2020
and has dismissed the Order XXXIX application filed by the
appellant.
10. Before the learned Commercial Court, the respondents sought
to contend that there was no phonetic or visual similarity between the
marks INDIA GATE or BHARAT GATE and also that the appellant
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could not claim a monopoly over the words INDIA GATE which were
words of common usage. The appellant, on the other hand, placed
reliance on the judgments of the Supreme Court in Renaissance Hotel
Holdings Inc v B Vijaya Sai5, Amritdhara Pharmacy v Satyadeo
Gupta6 and Kaviraj Pandit Durgadutt Sharma v Navaratna
Pharmaceutical Laboratories7 as well as the judgments of this Court
in South India Beverages Pvt Ltd v General Mills Marketing Inc8,
Amar Singh Chawalwala v Vardhman Rice9 and Shree Nath
Heritage Liquor Pvt Ltd v Allied Blender & Distillers Pvt Ltd10.
The impugned order
11. The learned Commercial Court holds, in the impugned order,
that there is no phonetic similarity between BHARAT GATE and
“INDIA GATE”. Besides, the impugned order holds that as the two
marks were distinct in packaging, colour and design with blue and
green colours predominating the appellant’s mark and red
predominating the respondent’s mark, which had a different design,
there was no chance or likelihood of confusion.
12. On the aspect of confusion, the learned Commercial Court
further holds that the Constitution of India recognises “India that is
Bharat” in its preamble. The learned Commercial Court has opined
that mere registration of the name INDIA GATE in favour of the
5 (2022) 5 SCC 1
6 1962 SCC OnLine SC 13
7 1964 SCC OnLine SC 14
8 2014 SCC OnLine Del 1953
9 2009 SCC OnLine Del 1690
10 2015 SCC OnLine Del 10164
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appellant could not preclude all other citizens of this country from
using any other name of this country including BHARAT. The word
GATE, it has been further held, is publici juris, over which no one
could claim monopoly.
13. Addressing the submission of the appellant that the image of the
India Gate was present on the packings of the appellant as well as of
the respondents, the learned Commercial Court has held that India
Gate is a national monument, and not the personal property of anyone.
He further holds that it is only when a person takes note of the rival
marks with great concentration that their similarity would become
apparent.
14. The learned Commercial Court has further held that the
appellant’s and the respondent’s product do not cater to the same
commercial segment, as the appellant deals with high quality rice,
which caters to its own consumers who would not, even by mistake,
purchase the respondent’s products.
15. In view of these findings, the learned Commercial Court has
vacated the ad interim injunction granted by his Predecessor and has
dismissed the appellant’s application under Order XXXIX Rules 1 and
2 of the CPC.
Contentions and Analysis
16. A brief preliminary digression
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16.1 Mr. Bakhru, learned Counsel for the appellant has drawn our
attention to an observation in the impugned order which, we are
constrained to observe, is not very happily worded. It reads as under:
“Reliance has also been placed on The Timken Company v
Timken Services Private Ltd11 and KRBL Ltd v Ramesh Bansal
and Anr.12 However, these two citations are of no use and avail to
the Plaintiff as both the orders were passed by Hon’ble High Court
of Delhi while dealing as the Court of first instance due to
pecuniary jurisdiction and hence would not constitute a binding
precedent on this Court.”
16.2 We are constrained to observe that the learned Commercial
Court ought not to have held that judgments passed by this Court were
not binding on him merely because they were passed as a Court of
first instance, owing to the pecuniary jurisdiction vested in this Court.
It is axiomatic that all decisions passed by this Court, in whatever
capacity, are binding on the District Courts. This is fundamental to our
judicial hierarchical structure and is part of the basic structure of our
Constitutional scheme. It cannot lie in the mouth of any Court to even
suggest that an order or judgment passed by a hierarchically superior
Court is not binding on it.
16.3 We are sanguine this clarification would disabuse the learned
Commercial Court of the apparent misconception harboured by it
regarding the binding nature of orders passed by this Court.
17. We are of the opinion, as we have already noted, that the
11 IA No. 21/2010 in CS(OS) no. 3/2010 order dated 30/5/2013 (J. J. R. Midha)
12 2009 (41) PTC 114 Del (Reva Kehtrapal J)
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impugned judgment proceeds on fundamentally erroneous premises.
18. We are aware of the note of caution sounded by the Supreme
Court in Wander Ltd v Antox (India) Pvt Ltd13, relating to the scope
of appreciation of orders passed by courts below while exercising
discretionary jurisdiction under Order XXXIX of the CPC. The
relevant paras may be reproduced as under:
“14. The appeals before the Division Bench were against the
exercise of discretion by the Single Judge. In such appeals, the
appellate court will not interfere with the exercise of discretion of
the court of first instance and substitute its own discretion except
where the discretion has been shown to have been exercised
arbitrarily, or capriciously or perversely or where the court had
ignored the settled principles of law regulating grant or refusal of
interlocutory injunctions. An appeal against exercise of discretion
is said to be an appeal on principle. Appellate court will not
reassess the material and seek to reach a conclusion different from
the one reached by the court below if the one reached by that court
was reasonably possible on the material. The appellate court would
normally not be justified in interfering with the exercise of
discretion under appeal solely on the ground that if it had
considered the matter at the trial stage it would have come to a
contrary conclusion. If the discretion has been exercised by the
trial court reasonably and in a judicial manner the fact that the
appellate court would have taken a different view may not justify
interference with the trial court’s exercise of discretion. After
referring to these principles Gajendragadkar, J. in Printers
(Mysore) Private Ltd. v Pothan Joseph14:
“… These principles are well established, but as has been
observed by Viscount Simon in Charles Osenton &
Co. v Jhanaton15 ‘…the law as to the reversal by a court of
appeal of an order made by a judge below in the exercise of
his discretion is well established, and any difficulty that
arises is due only to the application of well settled
principles in an individual case’.”
13 1990 Supp SCC 727
14 AIR 1960 SC 1156
15 1942 AC 130
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15. The appellate judgment does not seem to defer to this
principle.”
19. While this Court always believes in circumspection while
dealing with orders passed by courts below in exercise of its
jurisdiction under Order XXXIX, that does not mean that an order
which is passed on fundamentally erroneous premises can be allowed
to sustain. For the reasons which would become apparent hereinafter,
the impugned judgement of the learned Commercial Court, we are
convinced, eminently falls within the limited categories of cases in
which the appellate Court can, and in fact, should, interfere, even as
per para 14 of Wander.
20. The impugned judgement proceeds on several erroneous
principles.
21. Deceptive similarity
21.1 The first finding of the learned Commercial Court is that there
is no phonetic similarity between BHARAT GATE and INDIA
GATE. No reason, for this finding, is forthcoming in the impugned
order.
21.2 The finding is clearly erroneous.
21.3 Certain basic principles of infringement assessment do not seem
to have been factored, by the learned Commercial Court, into
consideration.
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21.4 It is settled – indeed, practically axiomatically by now – that the
possibility of likelihood of confusion, for the purpose of trade mark
infringement, has to be assessed from the perspective of a customer of
average intelligence and imperfect recollection.16
21.5 “Likelihood of confusion”, by a consumer of average
intelligence and imperfect recollection, is all that is needed.
“Confusion”, again, need not extrapolate, in every case, to the
consumer mistaking one mark for the other. It is enough – as Section
29(4) itself clarifies – if the similarity between the marks conveys an
impression of “association” between them, to the mind of such a
consumer. Again, all that is needed is “initial interest confusion”17,
without placing the marks side by side. In other words, if, on seeing
the defendant’s mark some time after the first, the consumer of
average intelligence and imperfect recollection is likely to pause, even
if for the fraction of a minute, and ponder as to whether it was not the
same, or at was not associated with, the plaintiff’s mark which he had
seen earlier, the tort of infringement stands, ipso facto, committed by
the defendant. The following passage from Kerly’s Law of Trade
Marks and Trade Names, 9th Edn, was approvingly cited by the
Supreme Court, in Parle Products (P) Ltd v J.P. & Co.18:
“Two marks, when placed side by side, may exhibit many
and various differences, yet the main idea left on the mind by both16 ReferAmritdhara Pharmacy, AIR 1963 SC 449, Cadila Health Care v Cadila Pharmaceuticals,
(2001) 5 SCC 73, Satyam Infoway Ltd v Siffynet Solutions (P) Ltd, (2004) 6 SCC 145, Mahendra &
Mahendra Paper Mills Ltd v Mahindra & Mahindra Ltd, (2002) 2 SCC 147
17 Google LLC v DRS Logistics (P) Ltd, 305 (2023) DLT 506 (DB), Shree Nath Heritage Liquor Pvt Ltdv Allied Blender & Distillers Pvt Ltd, 221 (2015) DLT 359 (DB)
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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.”
(Emphasis supplied)
21.6 Having reproduced the above passage from Kerly, the Supreme
Court, in Parle Products, went on to hold:
“9. It is, therefore, clear that in order to come to the conclusion
whether one mark is deceptively similar to another, the broad and
essential features of the two are to be considered. They should not
be placed side by side to find out if there are any differences in the
design and if so, whether they are of such character as to prevent
one design from being mistaken for the other. It would be enough
if the impugned mark bears such an overall similarity to the
registered mark as would be likely to mislead a person usually
dealing with one to accept the other if offered to him.”
(Emphasis supplied)
In view of the express words employed by Section 29(2) of the Trade
Marks Act, it is clear that the propensity of the average consumer to
accept the defendant’s product, if offered to him, owing to the
similarity between the plainitiff’s and defendant’s marks, cited as a
definitive test in Parle Products may as much be because she, or he,
confuses the defendant’s mark for the plaintiffs, as because, owing to
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the similarity between the two marks, he believes the existence of an
association between them. A fascinating study on the contours of
confusion is to be found in Shree Nath Heritage.
21.7 The opening sentence in the above paragraph from Parle
Products introduces a further concept of “idea infringement”. If, in
other words, the idea conveyed by one mark is copied by another, it
amounts to idea infringement which, too, is prohibited as likely to
result in confusion in the mind of the consumer of average intelligence
and imperfect recollection, as the above passage from Parle Products
holds. The logic is apparent. The human mind captures ideas
conveyed by images, or words, and often it is the idea which remains
impressed on the mind. The conveying of the same idea by two
marks, therefore, clearly results in likelihood of the human mind –
especially if average in intellect and imperfect in recollection –
confusing one for the other, or at least presuming an association
between them. Instances where this Court has held “idea
infringement” to exist are to be found in Holyland Marketing (P) Ltd
v Vijay Pal Vineet Kumar & Co19, Hari Chand Shri Gopal v
Evergreen International20, Bvlgari SPA v Notandas Gems (P) Ltd21
and Pernod Ricard India Pvt Ltd v A.B. Sugars Ltd22.
21.8 The House of Lords, in Reckitt & Colman Ltd v Borden Inc.23,
also postulated the “trinity” or “triple identity test”, which deems
infringement to exist where identical (or deceptively similar) marks
19 2023 SCC OnLine Del 2640
20 (2020) 83 PTC 267
21 (2022) 90 PTC 171
22 2023 SCC OnLine Del 6966
23 1990 (1) All ER 873 (HL)
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are used for more or less identical products, having a common market.
Similarity of marks, identity/similarity of the goods on which the
marks are used, and commonality of market, therefore, predicate a
legitimate inference of infringement.
21.9 Applying these principles, deceptive similarity between the
INDIA GATE and BHARAT GATE marks, as is likely to result in
confusion or a presumption of association between the marks, is
starkly apparent.
21.10 The latter common “Gate” part of the rival marks itself renders
them phonetically similar. One need only refer, in this regard, to the
oft cited decision in Amritdhara Pharmacy. The Supreme Court was,
in that case, concerned with the marks AMRITDHARA and
LAXMANDHARA, both used for Ayurvedic medicinal preparations.
On the aspect of the likelihood of the two marks to be confused with
each other, the Supreme Court held thus:
“7. Let us apply these tests to the facts of the case under our
consideration. It is not disputed before us that the two names
“Amritdhara” and “Lakshman-dhara” are in use in respect of the
same description of goods, namely a medicinal preparation for the
alleviation of various ailments. Such medicinal preparation will be
purchased mostly by people who instead of going to a doctor wish
to purchase a medicine for the quick alleviation of their suffering,
both villagers and townsfolk, literate as well as illiterate. As we
said in Corn Products Refining Co. v Shangrila Food Products
Ltd.24 the question has to be approached from the point of view of
a man of average intelligence and imperfect recollection. To such a
man the overall structural and phonetic similarity-of the two
names “Amritdhara” and “Lakshmandhara” is, in our opinion,
likely to deceive or cause confusion. We must consider the overall
similarity of the two composite words “Amritdhara” and24 (1960) 1 SCR 968
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“Lakshmandhara”. We do not think that the learned Judges of the
High Court were right in saying that no Indian would mistake one
for the other. An unwary purchaser of average intelligence and
imperfect recollection would not, as the High Court supposed, split
the name into its component parts and consider the etymological
meaning thereof or even consider the meaning of the composite
words as “current of nectar” or “current of Lakshman”. He would
go more by the overall structural and phonetic similarity and the
nature of the medicine he has previously purchased, or has been
told about, or about which has otherwise learnt and which he
wants to purchase. Where the trade relates to goods largely sold to
illiterate or badly educated persons, it is no answer to say that a
person educated in the Hindi language would go by the
etymological or ideological meaning and see the difference
between “current of nectar” and “current of Lakshman”. “Current
of Lakshman” in a literal sense has no meaning; to give it meaning
one must further make the inference that the “current or stream” is
as pure and strong as Lakshman of the Ramayana. An ordinary
Indian villager or townsman will perhaps know Lakshman, the
story of the Ramayana being familiar to him; but we doubt if he
would etymologise to the extent of seeing the so-called ideological
difference between “Amritdhara” and “Lakshmandhara”. He
would go more by the similarity of the two names in the context of
the widely known medicinal preparation which he wants for his
ailments.”
(Emphasis supplied)
21.11 Applying the above principles, it is clear that the mark
BHARAT GATE clearly infringes the mark INDIA GATE. Both are
used for the same goods. They are phonetically similar. “Bharat” and
“India” convey the same idea, Preambularly and otherwise. Both are
used for rice. The triple identity test, too, therefore, stands satisfied.
22 Design difference
22.1 The learned Commercial Court then proceeds to note the
difference in packaging colour and design between the INDIA GATE
and BHARAT GATE rice bags, with different colours predominating.
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22.2 Assuming such visual differences the marks, seen as images on
the packs, exist, they do not serve to mitigate the existence of
infringement, and the law in this regard is, again, not res integra. The
issue stands concluded by the judgment of the Supreme Court in K.R.
Chinna Krishna Chettiar v Shri Ambal & Co25. In that case, the
Supreme Court was dealing with the marks “SRI AMBAL” and “SRI
ANDAL”, used for snuff in both cases. Ambal and Andal were Hindu
divinities, worshipped in the South of India. There is a specific
finding by the Supreme Court in the said decision that the two rival
marks were visually completely dissimilar. Despite this, the Supreme
Court has held that, as “ANDAL” and “AMBAL” were phonetically
similar, a clear case of confusion existed. The relevant paragraphs
from K.R. Chinna Krishna Chettiar may be reproduced thus:
“7. There is no evidence of actual confusion, but that might be
due to the fact that the appellant’s trade is not of long standing.
There is no visual resemblance between the two marks, but ocular
comparison is not always the decisive test. The resemblance
between the two marks must be considered with reference to the ear
as well as the eye. There is a close affinity of sound between Ambal
and Andal.
*****
9. The name Andal does not cease to be deceptively similar
because it is used in conjunction with a pictorial device. The case
of De Cordova v Vick Chemical Co.26 is instructive. From the
appendix printed at p. 270 of the same volume it appears that Vick
Chemical Company were the proprietors of the registered trade
mark consisting of the word “Vaporub” and another registered trade
mark consisting of a design of which the words “Vicks Vaporub
Salve” formed a part. The appendix at p. 226 shows that the
defendants advertised their ointment as “Karsote Vapour Rub”. It25 (1969) 2 SCC 131
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was held that the defendants had infringed the registered marks.
Lord Radcliffe said: “… a mark is infringed by another trader if,
even without using the whole of it upon or in connection with his
goods, he uses one or more of its essential features”.
22.3 This finding of the learned Commercial Court also effectively
obfuscates the distinction between infringement and passing off, as
noted by the Supreme Court in Kaviraj Pt Durga Dutt Sharma v
Navaratna Pharmaceutical Laboratories27, of which the impugned
order itself takes pointed notice. Kaviraj clearly outlined the
distinction thus, in the process also underscoring the essential
ingredients of the two torts:
“28. The other ground of objection that the findings are
inconsistent really proceeds on an error in appreciating the basic
differences between the causes of action and right to relief in suits
for passing off and for infringement of a registered trade mark and
in equating the essentials of a passing off action with those in
respect of an action complaining of an infringement of a registered
trade mark. We have already pointed out that the suit by the
respondent complained both of an invasion of a statutory right
under Section 21 in respect of a registered trade mark and also of a
passing off by the use of the same mark. The finding in favour of the
appellant to which the learned counsel drew our attention was
based upon dissimilarity of the packing in which the goods of the
two parties were vended, the difference in the physical appearance
of the two packets by reason of the variation in the colour and other
features and their general get-up together with the circumstance
that the name and address of the manufactory of the appellant was
prominently displayed on his packets and these features were all set
out for negativing the respondent’s claim that the appellant had
passed off his goods as those of the respondent. These matters
which are of the essence of the cause of action for relief on the
ground of passing off play but a limited role in an action for
infringement of a registered trade mark by the registered proprietor
who has a statutory right to that mark and who has a statutory
remedy for the event of the use by another of that mark or a
colourable imitation thereof. While an action for passing off is a
Common Law remedy being in substance an action for deceit, that
is, a passing off by a person of his own goods as those of another,27 AIR 1965 SC 980
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that is not the gist of an action for infringement. The action for
infringement is a statutory remedy conferred on the registered
proprietor of a registered trade mark for the vindication of the
exclusive right to the use of the trade mark in relation to those
goods” (Vide Section 2128 of the Act). The use by the defendant of
the trade mark of the plaintiff is not essential in an action for
passing off, but is the sine qua non in the case of an action for
infringement. No doubt, where the evidence in respect of passing
off consists merely of the colourable use of a registered trade mark,
the essential features of both the actions might coincide in the sense
that what would be a colourable imitation of a trade mark in a
passing off action would also be such in an action for infringement
of the same trade mark. But there the correspondence between the
two ceases. 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. Expressed in another way, if the
essential features of the trade mark of the plaintiff have been
adopted by the defendant, the fact that the get-up, packing and
other writing or marks on the goods or on the packets in which he
offers his goods for sale show marked differences, or indicate
clearly a trade origin different from that of the registered
proprietor of the mark would be immaterial; whereas in the case of
passing off, the defendant may escape liability if he can show that
the added matter is sufficient to distinguish his goods from those of
the plaintiff.
29. When once the use by the defendant of the mark which is
claimed to infringe the plaintiff’s mark is shown to be “in the course
of trade”, the question whether there has been an infringement is to
be decided by comparison of the two marks. Where the two marks
are identical no further questions arise; for then the infringement is
made out. When the two marks are not identical, the plaintiff would
have to establish that the mark used by the defendant so nearly
resembles the plaintiff’s registered trade mark as is likely to deceive
or cause confusion and in relation to goods in respect of which it is
registered (Vide Section 21). A point has sometimes been raised as
to whether the words “or cause confusion” introduce any element28 Parallel to Section 28(1) of the Trade Marks Act, which reads:
“28. Rights conferred by registration. –
(1) Subject to the other provisions of this Act, the registration of a trade mark shall,
if valid, give to the registered proprietor of the trade mark the exclusive right to the use of
the trade mark in relation to the goods or services in respect of which the trade mark is
registered and to obtain relief in respect of infringement of the trade mark in the manner
provided by this Act.
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which is not already covered by the words “likely to deceive” and it
has sometimes been answered by saying that it is merely an
extension of the earlier test and does not add very materially to the
concept indicated by the earlier words “likely to deceive”. But this
apart, as the question arises in an action for infringement the onus
would be on the plaintiff to establish that the trade mark used by the
defendant in the course of trade in the goods in respect of which his
mark is registered, is deceptively similar. This has necessarily to be
ascertained by a comparison of the two marks — the degree of
resemblance which is necessary to exist to cause deception not
being capable of definition by laying down objective standards. The
persons who would be deceived are, of course, the purchasers of the
goods and it is the likelihood of their being deceived that is the
subject of consideration. The resemblance may be phonetic, visual
or in the basic idea represented by the plaintiff’s mark. The purpose
of the comparison is for determining whether the essential features
of the plaintiff’s trade mark are to be found in that used by the
defendant. The identification of the essential features of the mark is
in essence a question of fact and depends on the judgment of the
Court based on the evidence led before it as regards the usage of
the trade. It should, however, be borne in mind that the object of the
enquiry in ultimate analysis is whether the mark used by the
defendant as a whole is deceptively similar to that of the registered
mark of the plaintiff.”
22.4 Thus, infringement is made out where there is deceptive
phonetic, visual, or idea similarity between the marks. The presence
of any one element, as is sufficient to confuse the consumer, would be
sufficient. All other features of distinction would, then, pale into
insignificance. The marks, moreover, have to be compared as wholes,
taking into account the essential features of the appellant’s mark.
There is no inherent contradiction in this principle; if the essential
features of the appellant’s mark stand replicated by the respondent,
either by plain copying or usage of features which are confusingly
similar, in such a manner as to render the respondent’s and appellant’s
marks, seen as wholes, confusingly similar to each other, the tort of
infringement stands committed.
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22.5 When one compares, visually, the appellant’s INDIA GATE
and respondent’s BHARAT GATE marks, as used on their respective
packs, it is apparent that the respondent has, besides using a word
mark which is phonetically similar and representing the same idea as
the appellant’s mark, also copied the essential features of the
appellant’s mark. Most tellingly, the figure of the India Gate figures
prominently on both the packs. I am, quite frankly, unable to
appreciate how the learned Commercial Court could hold that, in the
respondent’s mark, seen by the eye, the Taj Mahal was prominent, and
that the India Gate is visible only when the viewer views the package
“with great care and concentration”. It appears that the learned
Commercial Court might have been referring to some other mark, as,
in the respondent’s mark, it is the image of the Taj Mahal, if anything,
which is disproportionately small as compared to the India Gate,
which occupies the entire foreground:
22.6 In any event, applying the K.R. Chinna Krishna Chettiar
principle, therefore, the fact that there may be other visual
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dissimilarities would not make any difference to the aspect of
infringement.
22.7 It is relevant to note, in this context, that, in K.R. Chinna
Krishna Chettiar, there was no similarity whatsoever, visually,
between the rival marks as depicted on the rival products, as is
apparent from the following factual recital in the opening paragraph of
the judgement:
“…Trade Mark No. 126208 consists of a label containing a device
of a goddess Sri Ambal seated on a globe floating on water
enclosed in a circular frame with the legend “Sri Ambal parimala
snuff” at the top of the label, and the name and address “Sri Ambal
and Co., Madras” at the bottom. Trade mark No. 146291 consists
of the expression “Sri Ambal”. The mark of which the appellant
seeks registration consists of a label containing three panels. The
first and the third panels contain in Tamil, Devanagri, Telgu and
Kannada the equivalents of the words “Sri Andal Madras Snuff”.
The centre panel contains the picture of goddess Sri Andal and the
legend “Sri Andal”.”
Even in the case of marks which had thus no visual similarity between
them at all, the Supreme Court held that infringement stood
established because of the phonetic similarity between “Ambal” and
“Andal”. As against this, in the present case, not only is there
phonetic similarity between the rival marks; the case is further one of
blatant idea infringement, with, further, the most prominent visual
feature of the appellant’s mark, namely the India Gate, having been
slavishly copied by the respondent.
22.8 The reliance, by the learned Commercial Court, on the visual
dissimilarities between the appellant’s INDIA GATE and respondent’s
BHARAT GATE marks is, therefore, completely misplaced.
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23 “Bharat” being a synonym for India – Munday and Slazenger
23.1 While observing that “Bharat” is a synonym of “India”, the
learned Commercial Court, unfortunately, fails to notice the most
obvious sequitur.
“India Gate” has a well-known and well-recognized connotation,
being referable to one of our proudest national monuments, in the
heart of the Delhi. This is underscored by the pictorial representation
of the India Gate on the appellant’s package, accompanying the
INDIA GATE mark. “Bharat Gate”, on the other hand, has no
meaning whatsoever, except as a corrupted synonym of “India Gate”.
The usage, by the respondent, of the figure of the India Gate
prominently covering nearly the whole of the packing clearly indicates
a deliberate attempt, by the respondent, to deceive consumers into
confusing the respondent’s product with the appellant’s. The use of
“Bharat”, a synonym for “India” is, obviously, merely a misguided
attempt to avoid an allegation of slavish adoption. The case is,
therefore, prima facie one of a mala fide and deliberate attempt to
capitalize on the goodwill of the appellant. There is no conceivable
explanation as to why the respondent used “BHARAT GATE” for rice
where the appellant’s well-known mark “INDIA GATE” was already
in existence. The reason can only be to capitalise on the appellant’s
goodwill and ensure sales of the respondent’s product.
23.2 In such cases, the exordiums of Kekewich J in Munday v
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Carey29, and of Lindley, LJ in Slazenger & Sons v Feltham & Co.30
squarely apply. In Munday, Kekewich J held:
“…Where you see dishonesty, then even though the similarity
were less than it is here, you ought, I think, to pay great attention
to the items of similarity, and less to the items of dissimilarity.”
Lindley LJ emphasized the rigidity of the approach to be adopted in
the case of deliberate copying, in Slazenger, thus:
“One must exercise one’s common sense, and, if you are driven to
the conclusion that what is intended to be done is to deceive if
possible, I do not think it is stretching the imagination very much
to credit the man with occasional success or possible success. Why
should we be astute to say that he cannot succeed in doing that
which he is straining every nerve to do?”
23.3 Applying these principles to the case at hand, as the respondent
has deliberately copied the essential features of the appellant’s
registered INDIA GATE trade mark, by adopting a meaningless, but
phonetically similar BHARAT GATE mark which conveys the same
idea, “Bharat” being a synonym for “India”, the Court was required to
concentrate on the similarities between the marks, rather than their
minor dissimilarities. Also, in such a case, the Court is required to
presume that the attempt at deception, adopted by the respondent,
would succeed, rather than otherwise. A clear case of likelihood of
confusion, thereby, stands made out.
24 Re. the publici juris finding and the decision in Shree Nath
Heritage
29
1905 RPC 273
30 (1889) 6 RPC 531
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24.1 The learned Commercial Court has further held that, as “India”
is the name of our country, the appellant could not seek to monopolize
it, and that “Gate” is publici juris, over which no exclusive
proprietorial rights could be claimed by anyone including the
appellant. Ergo, holds the learned Commercial Court, the use, by the
respondent, of the mark BHARAT GATE was legitimate, and could
not be injuncted by the appellant on the ground that it was a prior
registrant and user of the mark INDIA GATE. The learned
Commercial Court has also sought, in the process, to distinguish the
judgement of the Division Bench of this Court in Shree Nath
Heritage on the ground that, there, the two marks had a common first
word, “Officer”.
24.2 The observation of the learned Commercial Court apropos the
decision in Shree Nath Heritage, we may straightaway observe, is
vitiated by clear non-application of mind. This Court was, in that
case, concerned with two allegedly infringing marks, “Officer’s
Special” and “Collector’s Choice”, of the appellant-defendant, vis-à-
vis the respondent-plaintiff’s mark “Officer’s Choice”. The learned
Commercial Court appears to have overlooked, perhaps inadvertently,
the fact that one of the rival marks was “Collector’s Choice”, which
did not involve any Officer.
24.3 In fact, para 63 of the report in Shree Nath Heritage squarely
covers this case, and also addresses, once again, the finding of the
learned Commercial Court on the aspect of difference in trade dress or
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visual appearance of the rival marks. It reads:
“63. Since the marks ‘Officer’s Choice’ and ‘Collector’s Choice’
are prima-facie deceptively similar as they convey the same
meaning, the impact of different trade dress is highly unlikely to
rule out consumer confusion between the two products in this case,
especially since consumers expect manufacturers of alcoholic
beverages to churn out variants.”
Both the observations in this single-sentence paragraph apply to the
facts before us. As in the case, the marks INDIA GATE and
BHARAT GATE convey the same meaning. Again, as in that case,
this renders the marks deceptively similar, so that the difference in
trade dress between the marks as visually depicted on the packages of
the appellant’s and respondent’s products would not mitigate the
confusion created by the infringement.
24.4 The learned Commercial Court has, however, unfortunately
failed to notice that “Collector’s Choice” was one of the infringing
marks in Shree Nath Heritage and has, therefore, brushed aside the
said decision as distinguishable on facts. In fact, on more than one
point, the decision squarely covers the present controversy.
24.5 The findings of the learned Commercial Court, regarding the
appellant’s mark being publici juris, is erroneous on various counts.
24.6 In the first place, while returning such a finding, the learned
Commercial Court could not have vivisected the appellant’s mark into
INDIA and GATE, especially as the appellant was claiming
exclusivity over the whole INDIA GATE mark, and was not seeking
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to contend that, owing to the common GATE feature, the respondent’s
BHARAT GATE mark was infringing. Section 1731 of the Trade
Marks Act, in fact, proscribes any claim to exclusivity by vivisecting a
mark, registered as a whole, into its parts, unless such parts are
individually registered.
24.7 Secondly, the learned Commercial Court has erred in failing to
notice that the appellant was not claiming exclusivity over the word
INDIA or the word GATE, but over the mark INDIA GATE.
Expressed otherwise, the appellant’s case was not that no could use
either “India” or “Gate” as part of its mark for rice, but that the mark
BHARAT GATE was infringing. The learned Commercial Court
appears, erroneously, to have treated the appellant’s case as a claim
for exclusivity over the words “India” and “Gate”.
24.8 Thirdly, the issue of whether a mark is, or is not, publici juris,
has to be examined by considering the whole mark, vis-à-vis the goods
in respect of which the mark is used. Facially common words might,
in the context of the goods or services in which they are used, be
rendered inventive, justifying a claim of exclusivity. This is one such
case. The mark INDIA GATE cannot, clearly, be regarded as publici
31 17. Effect of registration of parts of a mark. –
(1) When a trade mark consists of several matters, its registration shall confer on the
proprietor exclusive right to the use of the trade mark taken as a whole.
(2) Notwithstanding anything contained in sub-section (1), when a trade mark–
(a) contains any part--
(i) which is not the subject of a separate application by the proprietor for
registration as a trade mark; or
(ii) which is not separately registered by the proprietor as a trade mark; or
(b) contains any matter which is common to the trade or is otherwise of a non-
distinctive character,
the registration thereof shall not confer any exclusive right in the matter forming only a part of the
whole of the trade mark so registered.
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juris when used for rice. INDIA GATE, most certainly, is not a mark
or name of common usage, for rice. As a moniker for rice, therefore,
INDIA GATE is decidedly inventive, and would, on its registration,
insure the registrant – the appellant before us – from the use, by
anyone else, of a deceptively similar mark.
24.9 The finding of the learned Commercial Court, predicated on the
publici juris principle is also, therefore, unsustainable on facts and in
law.
25 The price aspect
25.1 On the aspect of price, too, the finding of the learned
Commercial Court is a trifle disquieting. The impugned order, in this
context, observes and holds thus:
“Though the Hon’ble High Court had held that difference in price
is of no use and avail for the defendants to cite any distinction with
the product of the Plaintiff or a registered Trade Mark user,
however, in the given set of facts and circumstances, I am of the
considered view that keeping in view the kind of product involved
in the present case, the customers’ segment of the Plaintiff’s
product is entirely different from the customers’ segment of
defendants’, because the brand owned by the Plaintiff is not within
the reach of the common man and is popular only amongst upper
strata of society who are well educated, rich and conscious about
the products and their brands.”
The learned Commercial Court has earlier, in the impugned order,
noted that the Supreme Court has held, in Renaissance Hotel
Holdings Inc v B. Vijaya Sai that, where infringement stands
committed, the difference in price between the rival goods or services
becomes irrelevant. The exact words used in the impugned order, in
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this context, read:
“Renaissance Hotel Holdings Inc v B. Vijaya Sai and Ors …
wherein it was held by the Apex Court that a price difference
between two similar products of same class would not negate the
effect of infringement and thus Plaintiff could not be held dis-
entitled for an injunction in its favour. However, in the cited case,
respondent had used the original name of Plaintiff by merely
putting a prefix of “Sai”.”
(Emphasis supplied)
25.2 One may also, in this context, note what the Supreme Court
held, in Renaissance Holdings:
“52. It could thus be seen that this Court again reiterated that the
question to be asked in an infringement action is as to whether the
defendant is using a mark which is same as, or which is a
colourable imitation of the plaintiff’s registered trade mark. It has
further been held that though the get-up of the defendant’s goods
may be so different from the plaintiff’s goods and the prices may
also be so different that there would be no probability of
deception of the public, nevertheless even in such cases i.e. in an
infringement action, an injunction would be issued as soon as it is
proved that the defendant is improperly using the plaintiff’s mark.
It has been reiterated that no case of actual deception nor any
actual damage needs to be proved in such cases. This Court has
further held that though two actions are closely similar in some
respects, in an action for infringement, where the defendant’s trade
mark is identical with the plaintiff’s trade mark, the Court will not
enquire whether the infringement is such as is likely to deceive or
cause confusion.”
The marks with which the Supreme Court was dealing, in
Renaissance Holdings, being RENAISSANCE and SAI
RENAISSANCE were not, strictly speaking, identical. Nonetheless,
in view of the above paragraph from the judgement, it is clear that,
where infringement is found to exist and the overall similarity of the
rival marks is such as is likely to result in confusion or deception, the
mere fact that the goods, on which the rival marks are to be found, are
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sold at different – or even widely different – prices, would not make
any substantial difference.
25.3 We may also reiterate, in this context, the Munday and
Slazenger principles that, where there is, prima facie, a clear intent to
copy and deceive, the Court would presume that the attempt is
successful, rather than that it is not. The defendant, as a dishonest
user of a deceptively similar mark, must suffer contrition and penance
for the deception, and the Court would incline, in such circumstances,
in favour of holding that the consumer of average intelligence and
imperfect recollection would be deceived, rather than otherwise.
25.4 A mechanical view that there is no likelihood of confusion,
predicated on the difference in price between the marks also, in our
view, ignores stark trade realities. It is a matter of common
knowledge that the same manufacturer may manufacture, under
different marks, goods which are of widely varying prices. Though
the author of this judgement is a stranger to their charms, we are given
to understand that, for example, the Johnny Walker brand of whiskies
is sold under various “Labels”, commanding widely varying prices,
with Blue Label probably being the most exclusive and highly priced,
and Red Label being the cheapest. The possibility of goods, widely
differing in prices, being sold by the same manufacturer under
different marks, depending on the perceived quality of the product is,
therefore, a common trade reality, which the impugned order ignores.
25.5 We may also note, in this context, the submission of Mr
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Bakhru, appearing for the appellant, that such a defence was never
even raised in the written statement filed by the respondent before the
learned Commercial Court. In that view of the matter, we also fail to
understand the basis for the finding, of the learned Commercial Court,
that the appellant’s product catered to the cognoscenti, and the
respondent’s to the laity. The impugned order provides no basis for
this finding, even prima facie. Needless to say, it is not open to any
Court to rely on personal knowledge while passing a judicial order.
Even on this ground, the finding, in the impugned order, that as the
appellant’s and respondent’s products commanded different prices,
they catered to different customer segments, cannot sustain.
25.6 In fact, as the product, in each case, was cooking rice, they
catered to the same consumer segment, as already noted earlier in this
judgment.
The sequitur
26. The learned Commercial Court has, therefore, proceeded on the
following premises which are erroneous, both in fact and in law:
(i) that there is no phonetic similarity between INDIA
GATE and BHARAT GATE,
(ii) that the fact that there are differences in colour and
design between the appellant’s and respondent’s marks
mitigates the possibility of confusion,
(iii) that the appellant could not seek injunction as
(a) the appellant could not claim exclusivity over the
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word “India”, and it was open to anyone to use the said
word, or its synonyms including “Bharat”, for any goods,
and
(b) the word “Gate” was publici juris,
(iv) that the image of the India Gate was not prominently
visible on the image of the BHARAT GATE mark as printed on
the respondent’s packs, and
(v) that the appellant’s and respondent’s products were so
differently priced as to render their customer segments
different, thereby mitigating any likelihood of confusion.
27. We find, on the other hand, for the reasons already elucidated
hereinbefore, that the respondent had, with clear intent to capitalize on
the appellant’s goodwill, adopted a mark which is transparently and
deceptively similar to the registered trade mark of the appellant. The
case is clearly one of infringement, within the meaning of Section
29(2)(b) of the Trade Marks Act. Where prima facie infringement is
found to exist, an injunction must necessarily and inexorably follow.
The exordium to this effect, as contained in the following passage
from judgement of the Supreme Court in Midas Hygiene Industries
(P) Ltd v Sudhir Bhatia32, is entirely applicable to the present case:
“5. The law on the subject is well settled. In cases of
infringement either of trade mark or of copyright, normally an
injunction must follow. Mere delay in bringing action is not
sufficient to defeat grant of injunction in such cases. The grant of
injunction also becomes necessary if it prima facie appears that the
adoption of the mark was itself dishonest.”
32 (2004) 3 SCC 90
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28. The learned Commercial Court has proceeded, in the impugned
order, on premises which are fundamentally erroneous on fact as well
as in law. Even within the peripheries chalked out by the Supreme
Court in Wander, therefore, a case for interference, in appeal, is
eminently made out.
Conclusion
29. Resultantly, the impugned order, dated 9 January 2024, passed
by the learned Commercial Court, is quashed and set aside. The ad
interim order dated 9 October 2020, passed by the learned
Commercial Court, stands restored and is made absolute pending
disposal of the suit.
30. The appeal stands allowed in the aforesaid terms, without any
orders as to costs.
31. Needless to say, observations in this judgement are only
intended to dispose of the appeal preferred against the impugned
order, disposing of the application filed by the respondent under Order
XXXIX of the CPC.
C. HARI SHANKAR, J.
AJAY DIGPAUL, J.
JANUARY 15, 2025/ar
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