Sanjeevi Mechanical Works Pvt. Ltd. vs Bhagyanagar Ploymers Pvt. Ltd.

Heard the learned Counsel for both parties. This CMA is directed against the order granting temporary injunction in favour of the respondent-plaintiff restraining the appellant from manufacturing, marketing, delivering and selling the adhesive product using the brand name ''Charminar'' or ''New Charminar'' with the logo design, packing and inscriptions identical or deceptively similar to the respondent''s product pending disposal of the suit.

Admittedly, the respondent-plaintiff is not the registered owner or proprietor of the trade mark ''Charminar''. Though the respondent is stated to have applied for registration of its trade mark ''Charminar'' to the Trade Marks Registrar on 14-2-1995, so far the registration has not been completed even after the lapse of more than four years. There is nothing on record to show that the said application is still pending. It cannot therefore be said that there is any infringement of the registered trade mark of the respondent-plaintiff. The only question for consideration therefore is whether the trade mark used by the appelant-defendant is deceptively similar to that of the respondent-plaintiff and there is any likelihood of the goods of the defendant being passed off as those of the plaintiff?

A photograph depicting both the marks as well as the tins in which the products of the plaintiff and the defendant are marketed have been produced before me for examination. Even on a superficial examination, one finds several dissimilarities between the two marks. The most prominent difference is in the colour Scheme. Whereas, the trade mark of the plaintiff is on black colour with white letters and white stripes, the trade mark of the defendant is on black colour with yellow letters and stripes. The plaintiffs brand name is ''Charminar'' whereas the defendant''s brand name is ''New Charminar''. The names of the respective manufacturers are printed in bold letters. The picture of Charminar depicted in both the marks is also dis-similar. The logo of the two manufacturers is also different. I am therefore of the view that there is no deceptive similarity between the two marks which is likely to mislead the purchaser. The learned Counsel for the respondent-plaintiff contends that the product manufactured by the plaintiff and the defendant is mostly used by cobblers and other artisans who are mostly illiterate and who are not sophisticated and as such, there is every possibility of their being mislead. But having regard to the striking dis-similarities in the colour scheme and the over all design, it cannot be said that any customer who is well acquainted with the products available in the market is likely to be mislead. Moreover, the respondent-plaintiff has not been able to establish that there is any immediate threat of causing damage or loss to it by the defendant marketing the adhesive manufactured by it under the brand name ''New Charminar''. That apart, Charminar which is a famous monument in the city cannot be claimed as the exclusive property of any person.

For the aforesaid reasons, I am satisfied that the lower Court was not justified in granting temporary injunction as sought for by the plaintiff.

The appeal is accordingly allowed and the order of the lower Court is set aside. The temporary injunction is vacated. The lower Court is however directed to dispose of the suit as expeditiously as possible preferably within six months from today, in accordance with law uninfluenced by any observations made herein. No costs.