Pankaj Mithal, J:
1. The plaintiff-respondent M/s Girraj Food Products, Hathras through its proprietor instituted Original Suit No. 1 of 2009 against the defendant-appellants under the Trade Marks Act, 1999 (hereinafter referred to as an Act) for permanent injunction restraining the defendants from packing and selling 'Namkeen' with the name of 'Raja Chaudhary' which was said to be similar and deceptive to the registered trade mark 'Chacha Chaudhary' of the plaintiff-respondent; for accounting with regard to sale so for made with the deceptive name; and for seizer of all such deceptive material.
2. The suit was instituted on 12.12.2007 and an application for interim injunction was also moved therein. The application was opposed by the defendant-appellants by filing objection on 19.3.2009 and further written statement and it was inter alia contended that as the registered trade mark of the plaintiff-respondent itself is in question, the proceedings of the suit are liable to be stayed and that the trade name used by the defendant-appellants is quite distinct and different to the registered trade mark of the plaintiff-respondent so as to be called deceptive. The application on contest has been allowed by the impugned judgment and order dated 20.4.2009 and the defendant-appellants have been restrained from packing, selling and marketing any 'Namkeen' under the trade name 'Raja Chaudhary' which is said to be similar and deceptive to the trade mark 'Chacha Chaudhary' which is prima facie registered in the name of the plaintiff-respondent.
3. Aggrieved, the defendant-appellants have preferred this First Appeal From Order.
4. I have heard Sri Kshitij Shailendra, learned counsel for the defendant-appellants and Sri S.N. Singh, Advocate assisted by Sri Anil Kumar Shukla, learned counsel appearing for plaintiff-respondent.
5. At the very first day when the appeal came up for consideration as the plaintiff-respondent has entered caveat, the counsel for the parties agreed for the final disposal of the appeal at the admission stage itself. They were accordingly allowed time to exchange necessary affidavits so that appeal be heard finally on merits. On exchange of affidavits with the consent of the parties the matter was heard on merits for final disposal.
6. Sri Kshitij Shailendra, learned counsel for the defendant-appellants has basically made three arguments. His first submission is that the interim injunction of the nature as granted by the Court below could not have been granted in view of the language used under Section 135(2) of the Act. Secondly, as the registered trade mark of the plaintiff-respondent itself was in question and pleadings to this effect were made, the proceedings of the suit were liable to be stayed under Section 124 of the Act. Lastly, he has submitted that the trade name 'Raja Chaudhary' used by the defendant-appellants for manufacturing and marketing of their 'Namkeen' products do not resembles the registered trade mark of the plaintiff-respondent as such is not deceptive in nature. Moreover, the registered trade mark of the plaintiff-respondent is for 'Dalmoth' only whereas defendant-appellants are selling various kinds of 'Namkeen' under the trade name of 'Raja Chaudhary'.
7. There is no dispute to the fact that the plaintiff-appellants is the prior user of the registered trade mark of 'Chacha Chaudhary' (registered on 7th July 2005 w.e.f. 24.1.2002) having registration No. 01075846. The said trade mark is registered for marketing all kinds of 'Namkeen' preparations and confectionery products (see certified copy of registration of trade mark page 104 of the paper book of the appellants). This certificate establishes that the aforesaid trade mark has been registered permitting the plaintiff-respondent to market all kinds of 'Namkeen' preparation and confectionery products and is not confined for the packing and selling of any one particular kind of 'Namkeen' i.e. 'Dalmoth'. At the same time, it is also admitted that the defendant-appellants till date are not having any registered trade mark and they are selling their 'Namkeen' under the trade name of 'Raja Chaudhary' for which the registration is said to be pending since 9.8.2008.
8. Section 134 of the Act provides that a suit for infringement of trade marks etc. is to be instituted before the District Court and Section 135 of the Act provides for the relief which can be claimed in such a suit for infringement or passing of the trade marks. For the sake of convenience relevant part of Section 135 of the Act is reproduced herein below.
"135. Relief in suits for infringement or for passing off. - (1) The relief which a court may grant in any suit for infringement or for passing off referred to in section 134 includes injunction (subject to such terms, if any, as the court thinks fit) and at the option of the plaintiff, either damages or an account of profits, together with or without any order for the delivery-up of the infringing labels and marks for destruction or erasure.
(2) The order of injunction under sub-section (1) may include an ex parte in junction or any interlocutory order for any of the following matters, namely:-
(a) for discovery of documents;
(b) preserving of infringing goods, documents or other evidence which are related to the subject-matter of the suit;
(c) restraining the defendant from disposing of or dealing with his assets in a manner which may adversely affect plaintiff's ability to recover damages, costs or other pecuniary remedies which may be finally awarded to the plaintiff.
(3) .................... ."
9. A plain reading of the aforesaid provision demonstrates that apart from the relief for infringement for passing off referred to under Section 134 of the Act, the Court is competent to grant injunctions subject to such terms as it may think fit and at the option of the plaintiff, even damages for such infringement. It also provides and specifies the injunctions which may be granted by the Court. The nature of injunctions or any interlocutory order specified in sub-section 2 of Section 134 of the Act are inclusive and not exhaustive in nature. Therefore, by the very nature of the language employed in the aforesaid provision the list of the matters in respect whereof injunctions can be granted by the Court is not exhaustive and in no way limits the power of the Court to grant injunctions in respect of matters not specified therein. Therefore, even if the injunction as granted by the Court below in the instant case do not strictly fall within the matters specified in sub-section 2 of Section 135 of the Act, it cannot be said that the Court has no power to grant such an injunction if the Court is otherwise satisfied that a case for the grant of any interim relief has been made out. Section 135 of the Act apart, the Civil Court is always vested with the jurisdiction to grant interim injunction in any suit by virtue of its powers under Order XXXIX Rule 1 and Section 151 C.P.C. independently which power also do not stand curtailed. Therefore, the first submission of the learned counsel for the appellant has no merits and is liable to be rejected.
10. The second submission is in respect of Section 124 of the Act which provides for the stay of the proceedings where the validity of the registration of the trade mark itself is in question. It provides that where in a suit for infringement of a trade mark the defendant pleads that the registration of the trade mark is invalid the Court trying the suit shall, if such proceedings for rectification in relation to the plaintiff's trade mark are pending, stay the suit pending disposal of such proceedings.
11. Learned counsel for the appellant in this connection has drawn my attention to page 167 (appellants' paper book) which is a document of the Ministry of Commerce and Industry Department of Industrial Policy and Promotion Controller General of Patents Designs and Trade Marks Registry dated 24th March 2007. It describe the status of the trade mark No. 1075846 which belongs to the plaintiff-respondent and states that a rectification has been filed in that regard. In para 19 of the written statement it has been pleaded that the validity of the registration of the certificate of the plaintiff is pending adjudication before the Registrar, Trade Mark, New Delhi through a rectification petition and, therefore, proceedings of the suit are liable to be stayed in view of Section 124 of the Act.
On the strength of the above, it is argued that as the defendant-appellants have sufficiently pleaded that in respect of the registration of the plaintiff-respondent's trade mark as rectification is pending, therefore, the Court had no option but to stay the proceedings of the suit. A perusal of the pleadings of the defendant-appellants reveals that though it has been pleaded that a rectification application against the registration of the plaintiff-respondent's trade mark is pending before the competent authority but the pleadings are silent and does not contain any details as to by whom such rectification has been claimed. It is not disputed that the aforesaid rectification or invalidity of the plaintiff-respondent's registration of trade mark has not been claimed by the defendant-appellants. The language of Section 124 of the Act does not in so many words prescribes that such an application either for invalidation or rectification of the trade mark should be moved by the contesting defendant. Nonetheless, a plain reading of sub Section (2) of Section 124 of the Act indicates that it has to be by the party seeking stay of the proceedings. The words used "the party concerned proves to the Court that he has made any such application as is referred to in ........." signals that the application has to be by the party concerned and not by any third party. Therefore, the application for rectification of the trade mark of the plaintiff-respondent by any third party would not enure to any benefit of the defendant-appellants for the purposes of Section 124 of the Act.
Moreover, rectification so pending is said to be on behalf of the Diamonds Comics, the publishers of comic magazine with a popular character 'Chacha Chaudhary' which is a product altogether different to the products marketed by the plaintiff-respondent. Besides the above, sub-section 5 of Section 124 of the Act provides that stay of a suit for the infringement of the trade mark under Section 124 would not preclude the Court from making any interlocutory order or from passing an injunction order during the period of the stay of the suit. Thus, even if the proceedings are treated to under stay the Court below was competent to decide the injunction application despite pendency of rectification of the registered trade mark of the plaintiff-respondent. Therefore, there is no error of jurisdiction.
12. Last submission of the learned counsel for the appellant is that trade name of 'Raja Chaudhary' as used by the defendant-appellants is not deceptive or similar to the registered trade mark 'Chacha Chaudhary' of the plaintiff-respondent.
13. Section 2 (h) of the Act contains the definition "deceptively similar" and provides as under:
"2 (h) "deceptively similar". - A mark shall be deemed to be deceptively similar to another mark if it so nearly resembles that other mark as to be likely to deceive or cause confusion;"
14. Undoubtedly, the trade mark 'Chacha Chaudhary' is a registered trade mark of the plaintiff-respondent. It is actually on the register of the Registrar of the Trade Mark and the plaintiff-respondent is the registered prior user thereof. Now the only question is whether the trade name 'Raja Chaudhary' which is being used by the defendant-appellants is deceptively similar to the registered trade mark of the plaintiff-respondent. For purposes of deciding the above point, first the nature of the product has to be kept in mind and secondly it has to be seen as to who are the persons generally using and consuming the said product. The products herein are 'Namkeen' and all kinds of confectionery which are generally used in every household and more particularly by a common man who is not very literate and in a position to make distinction between two types of the products if there is even slight resembles. In India most of the people even though not illiterate but are "little Indians" who on account of their socio economic conditions are not capable of making a fine distinction between two products of the same nature. Therefore, when a certain mark or a word which may be phonetically same is either pre-fixed or suffixed to any name or word or mark it comes to be associate in the public mind as an indication of the same source and results creating confusion or causing deception. This is what appears to be the situation in the present case also.
15. In the case of Geepee Coval Proteins and Investment Pvt. Ltd. v. Saroj Oil Industry, 2003(27) PTC 190 (Del) the Delhi High Court was dealing with the trade mark in respect of the edible oil. The plaintiff therein was using the word 'Chambal' and the defendantstarted using the word 'Chambal Deep' and it was held that phonetically the word 'Chambal' and 'Chambal Deep' were similar and as such the word 'Chambal Deep' was held to be deceptively similar to the prior registered trade mark 'Chambal' within the meaning of Section 2 (h) of the Act. Similarly, the Allahabad High Court in the case of M/s. Poonam Detergent Industries v. Kanpur Trading Co. Ltd.. 2004 A.L.J. 2545 while dealing with the trade mark concerning a detergent held that as the plaintiff was using the trade mark 'Ghari' and the defendant had started using 'Pooja No. 1 Ghari'. The trade mark 'Ghari' was the main focal point of attraction and identification of the product marketed, therefore, the plaintiff who was a prior user is entitled to grant of injunction as the product marketed as 'Pooja No. 1 Ghari' was similar in design and was used by the defendant to confuse and deceive the customer. Thus, applying the reasoning as laid down in the aforesaid two decisions, I am of the view that as the plaintiff
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-respondent is admittedly a prior user of the registered trade mark 'Chacha Chaudhary' 'Namkeen' products, the marketing of similar kind of 'Namkeen' products by the defendant-appellants under the trade name 'Raja Chaudhary' is prima facie deceptive in nature which is likely to affect the goodwill earned by the plaintiff-respondent by creating confusion amongst customers. 16. In view of the above, the plaintiff-respondent had certainly made out a prima facie case for grant of interim injunction in his favour. The balance of convenience was also in his favour inasmuch as he has been doing the business with the aforesaid trade mark since 2002. Therefore, if the defendant-appellants were allowed to do business in the same name or with a deceptively similar name, the plaintiff-respondent would have suffered irreparable loss and injury. Therefore, in the totality of the facts and circumstances, I am of the view that the Court below has not erred in law in granting interim injunction to the plaintiff-respondent and the interim order so passed suffers from no defect or error of jurisdiction. Accordingly, the appeal has no merits and fails. However, since the matter relates to the trade mark affecting the livelihood of the both parties, it is expected that the Court below will proceed and decide the suit most expeditiously preferably within a period of three months from the date of production of the certified copy of this order for which the parties undertake to cooperate. The appeal is dismissed with the above observation. Parties to bear their own costs.