At, High Court of Delhi
By, THE HONOURABLE MR. JUSTICE C.K. MAHAJAN
For the Plaintiff: Mr. K.G. Bansal & Mr. S.K. Bansal, Advocates.
C.K. Mahajan, J:
1. By way of present application, the plaintiff seeks an ad-interim injunction restraining the defendant from using, manufacturing, selling, offering for sale and dealing in any manner in small domestic utensils and containers, kitchen and tablewares etc. under the impugned trade mark `RAJKAMAL TOP No. 1 label with device of Lotus flower or any other trademark/lable identical or deceptively similar to that of plaintiff's trademark RAJKAMAL Label with device of Lotus Flower.
2. The plaintiff claims to be the owner of trademark RAJKAMAL Label in respect of aforesaid goods since 1972 and has been continuously using the same. The said trademark was registered by the plaintiff in August, 1986. Plaintiff is also copyright owner of the artistic work in respect of aforesaid label. The plaintiff's trademark has gained recognition in the market due to extensive advertisements in various magazines and newspapers and the plaintiff enjoys a good reputation in the market. It is alleged that in August, 1998, the defendant started manufacturing and marketing of small domestic utensils and containers, kitchen and tablewares under the trademark RAJKAMAL TOP No. 1 which is a colourable imitation of the plaintiff's trademark and artistic work and infringement of its legal rights.
3. The defendant in its reply contended that this Court has no territorial jurisdiction to entertain the suit as the defendant is not selling the goods in Delhi or having any branch or shop in Delhi. An issue to this effect has been framed in the suit and will be decided at the time of final hearing.
4. The crucial test to be applied for judging an infringement action or a passing off action is as to whether the customers of average intelligence and of imperfect recollection are likely to be confused on the first impression. The plaintiff has to prove not only the similarity in the trade names but also that the defendant's goods as so marked, made up or described by them, as to be calculated to mislead ordinary purchasers and to lead them to mistake the defendant's goods for those of the plaintiffs.
5. I have examined the label of the plaintiff as well as that of the defendant. The plaintiff has used the tradename "Rajkamal" with a flower of lotus in a circle, above it whereas the defendant has used the tradename "Rajkamal Top No. 1" with a "trishul" in a circle on the left side of the label. The plaintiff has used the words "International Quality" on the left side corner whereas these words in the label of the defendant appear on the left side below the "trishul".
6. The deception can be caused by user of one or more essential features of a mark. In the present case, in both the labels the word "Rajkamal" is used in somewhat similar fashion and prima facie it appears to me that the defendants has intentionally used the word "Rajkamal" to confuse the customers of average intelligence.
7. I have carefully considered the pleadings and examined the documents. Prima facie, I am of the considered opinion that the defendant's product is bound to cause confusion and deception in the minds of unwary class of purchasers having imperfect recollection.
8. In view of the above discussion, the defendant is restrained from using, manufacturing, selling, offering for sale and dealing in any manner in small domestic utensils and containers, kitchen and tablewares etc. under the impugned trade mark `RAJKAMAL TOP No. 1' label with device of Lotus flower of any other trademark/lable identical or deceptively similar to
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that of plaintiff's trademark RAJKAMAL Label with device of Lotus Flower, till the disposal of the suit. 9. However, the observations made herein are only for the purpose deciding the present application and shall not be taken as an expression of opinion on the merits of the case for the final determination of the respective rights of the parties. I.A. stands disposed of.