1 The Appellant-Original Plaintiff has challenged order dated 15 December 2012 passed by the learned District Judge, Pune whereby dismissed the application for injunction restraining the Respondent-Defendant from infringing the Appellant's registered trade mark 'SAMRAT'. The dispute is therefore with regard to the word-mark 'SAMRAT'.
2 The Appellant is a Company engaged in carrying business of manufacturing, distribution and marketing Besan, Pulses, Wheat, Flour and preparations made from Cereals, Rava, Maida, Atta and other products in the trade since 1983. They got registered trade mark 'SAMRAT' in relation to the said goods in class 30 under the Trade Marks Act, 1999 (for short 'the Act'). They made an application for renewal with new identity and label with distinct features of food products and a device of a lady in the year 2007. The Appellant is also holder and registered proprietor of the original artistic work under the mark 'SAMRAT' under the Copyright Act, 1957.
3 The Respondent-Defendant has started selling atta under the mark 'SAMRAT' which according to the Appellant, is phonetically, structurally and visually identical to their registered mark with device. The Respondent-Defendant, inspite of a caution and restrain notice and requests to refrain and stop selling atta, has denied falsely. Therefore, the Appellant filed the suit in September 2012, as it also violates the provisions of Section 9(2) and 11(1) of the Act.
4 The Appellant in April 2012 noted again such products in the market in the name of 'SAMRAT' and therefore filed the suit and also prayed for mandatory injunction. The Respondent-Defendant denied and resisted every aspect of the averments and the case so sought to be submitted by the Appellant. The Defendant-Company, basically doing business in South India and also resisted that the Appellant failed to aver and produce the documents to show the Appellant's ownership of any common rights for such reliefs. The denial is also made by the Respondent that the packing and artistic work used in their product is similar and that the Respondent has been continuously using a trade mark 'SAMRAT' with device of a crown with unique getup and packaging. Both these are part of record as filed by both the parties in support of their respective cases.
5 The Respective-Defendant contended that they are doing this business since 1993 by manufacturing and marketing of arappu powder, turmeric powder, chilli powder, dhania powder etc. and their turnover is more that two crores per annum and they have also spent huge amount towards advertisement. They denied any similarity phonetically, structurally and visually with regard to the alleged trade mark.
6 After hearing both the parties and considering both the labels-trade marks, I am also inclined to hold that the marks are quite different and both these marks are not structurally similar either phonetically or even visually. There is no question of any confusion of the mind of relevant customers. The delay and latches on the part of the Appellant, apart from the acquiescence and long use of the mark by the Respondent-Defendant also cannot be overlooked at this stage.
7 The basic registered trade mark of the Appellant is of crown with device having words 'Swadist and Ruchkar Padarthasathi 'Samrat' brand Chana Besan'. The Appellant in 2007 applied for new identity and label with distinct features of food products and a device of a lady which consists and contains the word 'SAMRAT'. However, the same was approved under the Registered Copyright Act and not under the Trade Marks Act. Therefore, apparently the trade mark issue artistic work but under Class 30 of the Act. The original trade mark produced on record, as recorded as 'Crown' with device having the words in question. The copyright, even if any, of artistic work with picture of a lady admittedly issued on 4.1.2011 as applied on 14.11.2009, but this means it was not since 1983. The copyright issue of wrapper therefore Cannon be treated as trade mark.
8 The Respondent, on the contrary, produced on record their trade mark of word 'SAMRAT' with device of crown. But later on the device of crown was disclaimed under the trade mark 'SAMRAT' for class 30 in respect of coffee only is not in dispute. On the wrapper, the Respondent-Defendant used their trade mark for products namely cereal, wheat, atta. The Appellant was not using his original trade mark of the year 1983. The Appellant's trade mark was not used by the Respondent-Defendant on its products. Therefore, there is no question of confusion and/or deception, as sought to be contended.
9 The learned Judge has given clear finding that the trade mark of the Appellant is of king with device of crown with vernacular word which is similar and/or identical with the trademark of the Respondent-Defendant, namely the word 'SAMRAT' with device of crown. Therefore, the learned Judge observed that no prima facie material in support of the Appellant. The learned Judge has observed that both the parties are using the mark 'SAMRAT' in their packaging. However, the style of writing the word 'SAMRAT' is different. The word 'SAMRAT' is commonly used as common name and no one can have trade mark for the same. The word 'SAMRAT' therefore is common name known as 'king'. The Appellant had the trade marl of vernacular word 'SAMRAT' and therefore there is no case of infringement.
10 The learned Judge has also observed, after considering the material on record there is no prima facie material to show that the Plaintiff was using mark 'SAMRAT' atta prior to Defendant. The Defendant using the trade mark 'SAMRAT' with device of crown since 1995 though it was for coffee, but using the word 'SAMRAT' since 1997, is certainly after the registration of the Appellant's product in 2011. There is no similarity of any kind. There is no case of deception and/or confusion, specifically when the word 'SAMRAT' is common name.
11 Therefore, in the present facts and circumstance
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s of the case, no case is made out as even the pouches of atta so placed on record, the same are of different colours and combination and there is no similarity and/or any identity. The name of the manufacturer is written in bold. The aspect of spoken word 'SAMRAT' as contemplated under Section 28 read with Section 29 and also in the present facts and circumstances, is not sufficient to consider the case of the Appellant at this stage of the proceedings. 12 No case of perversity and illegality. The order is well within law and the record. Suit expedited. 13 For the above reasons, the Appeal from Order is dismissed, so also Civil Application. No costs.