AI Structured Summary
Not yet generated for this judgment
No AI summary yet
Generate an eight-section analysis of this judgment — facts, issues, reasoning, ratio and a plain-language gist.
Judgment
56 paragraphs · 877 wordsYear Sales,(In Rs.)
1990.1991,"11,401.00
1991.1992,"38,945.00
1992-1993,"5,16,084.00
1993-1994,"13,89,412.00
1994-1995,"18,09,110.00
1995-1996,"25,89,775.00
1996-1997,"33,45,237.00
1997-1998,"16,95,731.34
1998-1999,"32,30,604.20
1999-2000,"43,72,817.00
2000-2001,"97,72,913.00
2001-2002,"98,58,835.00
2002-2003,"1,65,64,137.00
the market labels which are more similar to the applicant's and thereafter the applicant will be constrained to file a suit to protect his interest if this,
statutory remedy is not granted.,
6 . We considered the submissions of the learned counsel for the applicant. The pleadings and documents show that the applicant's predecessor in title,",
the sole proprietary concern has been selling the products known as 'PAURUSH JEEVAN'. The earliest trade mark registration is No. 709971 dated,
17.07.1996. The deed of assignment dated 24.04.2006 also shows that the sole proprietary concern has transferred its rights and interests in this label.,
The sales effected by the applicant are referred to in his pleadings and there are documents to show the volume of sales as well as the fact that his,
products are widely advertised in the media. The two words/marks are 'PAURUSH JEEVAN' and 'AMBE NAVIN PAURUSH'.,
In AIR 1963 SC 449 (supra) it was held:,
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,
'Lakshmandhara' 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. The question has to be approached from the point of view of a man of average",
and imperfect recollection.,
In 2007 35 PTC 406 (supra) it was held as follows:,
14... in the case of Ramdev Food Products Ltd v. Arvindbhai Rambhai Patel & Others: 2006 (8) SCC 726, the Supreme Court has observed that the",
test for determining deceptive similarity in an infringement action would be the same as in the case of a passing off action.,
The test for determining whether one trademark is deceptively similar to another is based on the likelihood of confusion or deception arising in the,
minds of the consumers....,
9 . In AIR 1970 SC 146 (supra) it was held that 'The resemblance between the two marks must be considered with reference to the ear as well as the,
eye.,
In 2001 PTC 876 (supra) the Court had referred to the ordinary procedure. '23' Such packets are purchased by common people in the towns as,
well as in village, literate and illiterate. To such a man, the overall structural depiction and use of RUCHI'S which, in the case of the plaintiff has been",
put in green colour on the top of NUTRELA and which in the case of defendant has been in green colour by putting SAHARA and in place of,
NUTRELA, the defendant has used RUCHI in a manner so as to, in my opinion, would likely to deceive or cause confusion. Unwary purchaser of",
average intelligence and imperfect recollection is bound to be deceived. As unintending purchaser go more by overall structural and colour similarity in,
the nature of the food product which has been purchased previously or which has been sold. The colourable imitation would also bring an action for,
passing off....,
28 . Therefore, the true test would be whether an ordinary purchaser purchases with common caution, not expected to make a close and careful",
examination of the products, was likely to be induced or confused into buying a wrong product. The use of word RUCHI along with SAHARA,",
RUCHI being an essential part of the trade mark/label of the plaintiff used in conjunction with NUTRELA and the manner of using the colour scheme,
and manner of placement of impugned label clearly show that the defendants want to take advantage of the goodwill and reputation of the plaintiff. If,
that is so, the court should not be reluctant in safeguarding the reputation and goodwill which are attached to trade name or trade style in comparison",
to a person who has come recently in the market and wants to pass off its goods as that of the plaintiff which has acquired reputation and goodwill.,
Balance of convenience would also be in restraining such a user of impugned trademark/trade name.,
In this case, it is indisputable that the average man may very likely not mention the name of the medicine in full but just the name 'Paurush'. Even",
otherwise the likelihood of his attention being drawn to the word 'Paurush' alone cannot be ruled out. The decision above referred to the likelihood of,
confusion. On the face of it, the claim of the user by the respondent is subsequent to the applicant's user. Therefore, we are of the opinion that the",
applicant is entitled to succeed.,
In view of the above, the rectification application No. ORA/276/2009/TM/DEL is allowed. The Registrar of Trade Marks is directed to remove",
the mark 'AMBE NAVIN PAURUSH' registered under No. 1606945 from the Register of Trade Marks. M.P. No. 273/2009 stands closed. No order,
as to costs.,
(Disclaimer: This order is being published for present information and should not be taken as a certified copy issued by the Board.),