Karnataka High Court: P. Krishna Bhat J., set aside the impugned order with a direction to the Court to hear and dispose of the applications afresh by giving an opportunity to both sides and in accordance with the law.
The facts of the case are such that the respondent/plaintiff in the original suit is doing business under the name ‘Matru Ayurveda’ since the year 2015 having trademark deceptively similar to the appellant/defendant who started his business in the year 2018 with his trademark ‘Matruveda’, thereby established contacts of the respondent/plaintiff got deceived and she has suffered huge losses. Therefore she prayed for a decree of permanent injunction to restrain the appellant/defendant from infringing respondent/plaintiff established registered trademark ‘Matru Ayurveda’ by using the offending trademark ‘Matruveda’ in the preparation, sale and distribution of herbal products or by using a deceptively similar well established and registered trademark ‘Matru Ayurveda’. A suit and applications under Order XXXIX Rule 1 and 2 CPC was filed wherein temporary injunction was granted and appellant/defendant were restrained from infringing and passing off of the respondent/plaintiff registered trademark. Assailing this order, the instant appeal was filed.
Counsel for the appellant/defendant submitted that the plaintiff had started her business under the tradename and trademark ‘Matru Ayurveda’ which is laid inside a logo and similarly the appellant/defendant had started his business under the tradename ‘Matruveda’ with a logo and there is no such resemblance between the same as will lead any purchaser of the products of either parties to confuse between the same. It was further submitted that he had no opportunity of producing documents in support of his stand that the trademark of the appellant/defendant is not deceptively similar to the trademark of the respondent/plaintiff and further that there were several manufacturers who are using trademarks closely similar to the trademark of the respondent/plaintiff and the defendant with the prefixes ‘Matro’.
Counsel for the respondent/plaintiff submitted that the trademark got registered by the appellant/defendant is subsequent to the registration of the trademark of the respondent/plaintiff. It was further submitted that the respondent/plaintiff is a well-established businesswoman who has been marketing her products ever since the year 2015 and the appellant/defendant had started his business only in the year 2018. It was further contended that on account of the close resemblance of the trademark of the defendant with that of the plaintiff, the business of the respondent/plaintiff has been affected drastically and therefore the appellant/defendant is liable to be injuncted from carrying on his business under the trademark ‘Matruveda’.
The Court observed that as per Section 2 (1) (zb) of the Trade Marks Act, 1999, the ‘trademark’ is totally different from the trade name. There may be cases where trade name is also the trade mark but in very many cases it may not be so.
The Court further observed that in the present case there cannot be any dispute that trade names are only a part of the composite whole of the trade mark. The Court while deciding such cases should have in mind the ‘quintessential common man’ who goes to the neighborhood shop with the idea of purchasing product of his liking. Quoting the Court “Has not the Hon’ble Supreme Court said …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…”
The Court thus held that the “impugned order is totally bereft of any discussion of the same. Absent of such discussion, weight of authorities dictate that the impugned order be characterized as perverse and resultantly it is liable to be set aside.”
In view of the above, appeal was disposed off.[N. Dinesh Kumar v. Shweta Khandelwal, Miscellaneous First Appeal No. 790/2021, decided on 15-03-2021]
Arunima Bose, Editorial Assistant has reported this brief.