Unisn Health Check Up And Diagnostics ... vs Unison Pharmaceuticals Pvt. Ltd on 16 July, 2024

[Cites 30, Cited by 0]

Gujarat High Court

Unisn Health Check Up And Diagnostics ... vs Unison Pharmaceuticals Pvt. Ltd on 16 July, 2024

Bench: Sunita Agarwal

                                                                                         NEUTRAL CITATION




    C/AO/98/2024                                    CAV JUDGMENT DATED: 16/07/2024

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                   IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
                         R/APPEAL FROM ORDER NO. 98 of 2024
                                         With
                      CIVIL APPLICATION (FOR STAY) NO. 1 of 2024
                        In R/APPEAL FROM ORDER NO. 98 of 2024

FOR APPROVAL AND SIGNATURE:
HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE SUNITA AGARWAL
and
HONOURABLE MR. JUSTICE PRANAV TRIVEDI
 ==========================================================

1    Whether Reporters of Local Papers may be allowed to                      No
     see the judgment ?

2    To be referred to the Reporter or not ?                                 Yes

3    Whether their Lordships wish to see the fair copy of the                 No
     judgment ?

4    Whether this case involves a substantial question of                     No
     law as to the interpretation of the Constitution of India
     or any order made thereunder ?

==========================================================
            UNISN HEALTH CHECK UP AND DIAGNOSTICS LLP
                                  Versus
                 UNISON PHARMACEUTICALS PVT. LTD.
==========================================================
Appearance:
KAMAL J UPADHYAYA(7469) for the Appellant(s) No. 1
MR.ADITYA J PANDYA(6991) for the Appellant(s) No. 1
DIGPALSNGH H RATHORE(8083) for the Respondent(s) No. 1
MR. HARSHIT TOLIA, SR. ADV. WITH MR HARSHIL SHAH WITH MR.
DIGPALSINGH RATHORE(1936) for the Respondent(s) No. 1
==========================================================

    CORAM:HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE SUNITA
          AGARWAL
          and
          HONOURABLE MR. JUSTICE PRANAV TRIVEDI

                         Date : 16/07/2024
                         CAV JUDGMENT

(PER : HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE SUNITA AGARWAL)

1. The present Appeal under Order XLIII Rule 1(R) of the Code of Civil Procedure, 1908, has been filed challenging the Page 1 of 38 Downloaded on : Thu Jul 18 20:55:27 IST 2024 NEUTRAL CITATION C/AO/98/2024 CAV JUDGMENT DATED: 16/07/2024 undefined judgment and order dated 18.05.2024 passed by the Judge, Commercial Court, City Civil Court, Ahmedabad in deciding the Application (Exhibit 7), for interim injunction under Order XXXIX Rule (1) & (2), in Commercial Trade Mark Suit No.13 of 2023. The said suit has been filed with the relief of perpetual injunction restraining the defendant and its agent etc. from using the trade mark / trade name 'UniSN', to carry out their trade, on the plea that the act of the defendants amounts to infringement of plaintiff's registered trade mark 'UNISON' in Class 5 and Class 10.

2. The Trial Court while allowing the interim injunction application (Exh.7) has observed that the plaintiff has been using the trade mark 'UNISON' since 1980 and got the said trade mark registered since 2003 and 2012. Documentary evidences such as invoices, Statement of account, turnover of goods under the said trade mark from the year 1998-1990 onward had been filed by the plaintiff. The finding is that the defendant is using trade mark "UniSN" only from 14.06.2021 and the registered trade mark of the plaintiff was well within the knowledge of the representatives of the defendant. The plaintiff has acquired goodwill and reputation of the trade mark 'UNISON' in public at large.

3. The Trial Court after recording the above noted admitted facts, further noted that before institution of the suit, legal notice dated 16.08.2022 had been given to the defendant, to which reply was given by the defendant on 18.01.2023, Page 2 of 38 Downloaded on : Thu Jul 18 20:55:27 IST 2024 NEUTRAL CITATION C/AO/98/2024 CAV JUDGMENT DATED: 16/07/2024 undefined wherein it is claimed that they are in the business of hospital, pharmaceutical products distribution, pharmaceutical research institute and the new business of 'UniSN' for health checkup and diagnosis in furtherance of its established business.

4. On the pleadings and the evidences led by the plaintiff, the Trial Court has recorded that with the registration in Class 5 & 10 of the trade mark 'UNISON', the plaintiff is registered to deal with the goods such as surgical, medical, dental and veterinary apparatus and instruments, artificial limbs, eyes and teeth, orthopedic articles, suture materials etc.. The plaintiff firm is in the name of 'UNISON'. The registration in Class 5 and Class 10 made on 15.12.2003 and 22.10.2012 is vaild upto 15.12.2023 and 22.10.2032; respectively. Whereas, the defendant is using the trade mark 'UniSN' for providing services such as health checkup as well as diagnostic services. The definitions of 'trade mark' and 'medical device' were considered by the trial court to note that the plaintiff has prima facie established that drug includes diagnosis and medical device also substances used in victro diagnosis. So from the service of the defendant under the trade mark 'UniSN' to provide diagnostic and healthcare services, which include drug etc., the trial court has reached at the conclusion that the trade mark of the plaintiff and the defendant are prima facie similar phonetically, structurally and visually. The plaintiff is also providing diagnostic services as per the evidence on record. The plaintiff has Page 3 of 38 Downloaded on : Thu Jul 18 20:55:27 IST 2024 NEUTRAL CITATION C/AO/98/2024 CAV JUDGMENT DATED: 16/07/2024 undefined been able to prima facie establish that the defendant is using the trade mark similar, identical and deceptive of its trade mark and action of the defendant is likely to confuse or deceive the public at large from the similarity of the two trade marks. The use of word 'UniSN' by the defendant is likely to cause confusion to the general public as to the association of the defendant with plaintiff's trade mark / trade name / word 'UNISON'. For the word used as a trade mark, which is likely to cause confusion to the general public and the said word being associated with the plaintiff's trade mark, both the elements of grant of interim relief namely prima facie case and balance of convenience are made out in favour of the plaintiff and, in case, the defendant is not injuncted, the plaintiff would suffer irreparable loss and injury.

5. On the test to determine the question of infringement, it was noted by the Trial Court with the aid of the judgment of the Apex Court in Cadila Health Care Ltd. vs. Cadila Pharmaceutical Ltd. [(2001) 5 SCC 73] that the test to determine two trade marks is similarity and not the dissimilarity between the competing marks. The phonetic similarity is not to be ignored when the competing words are written differently. The question has to be approached from the point of which an Indian of average intelligence and imperfect recollection and not from the point of view of English man. It was noted that the defendants Dr. Samir Page 4 of 38 Downloaded on : Thu Jul 18 20:55:27 IST 2024 NEUTRAL CITATION C/AO/98/2024 CAV JUDGMENT DATED: 16/07/2024 undefined Rami and Dr. Nishil R. Shah, two Directors of the company, are practicing in Surat. Both are frequently visited by the medical representatives of plaintiff company prior to incorporation of the defendant company. Thus representatives of the defendant were conscious about the well known reputation and goodwill of plaintiff's trade mark. It was concluded that the plaintiff would be directly affected and its reputation in the market would suffer irreparable injury, which cannot be compensated in terms of money, if injunction is refused. All the three essential elements i.e. prima facie case, balance of convenience, irreparable loss, are tilting in favour of the plaintiff and it would suffer irreparable loss and injury, which cannot be compensated in terms of money and hence the defendant is injuncted from selling or offering for sale or marketing or manufacturing any medicinal or advertising or providing for medical services such as health check-up and diagnostic or pharmaceutical preparation and using in any manner whatsoever including website under the trade mark / trade style, deceptively similar to the trade mark / trade name of the plaintiff 'UNISON'.

6. Challenging this order, it was argued by the learned counsel for the appellant that the trade mark 'UNISON' of the plaintiff is registered in Class 5 and Class 10, whereas the defendant is using trade mark 'UniSN' in Class 44 for the services in support of the goods. The application of the Page 5 of 38 Downloaded on : Thu Jul 18 20:55:27 IST 2024 NEUTRAL CITATION C/AO/98/2024 CAV JUDGMENT DATED: 16/07/2024 undefined plaintiff for registration of trade mark in Class 44 is pending. There is stark distinction between the two trade marks and they cannot be said to be deceptively similar creating a situation of likelihood of confusion of the defendant's product being associated with that of the plaintiff. The Trial Court considered only phonetic similarity and has ignored that both the trade marks are to be compared as a whole, inasmuch as, the plaintiff is claiming protection to the entire trade mark. The requirement was to consider all elements of the trade mark including the surrounding circumstances to reach at the conclusion as to whether the plaintiff is entitled to any protection much less interim protection.

7. Attention of the Court is invited to page '42' of the paper book to submit that the Legal Use Certificate of the plaintiff shows that the registered trade mark is a 'device trade mark', wherein there are other characters apart from the word 'UNISON'. The 'device' registered under the trade mark has covered wider aspects and the word 'UNISON' cannot be said to be registered as a trade mark. The mentioning of the word 'UNISON' as a wordmark in the Legal Use Certificate of the plaintiff would only mean that the said word is a part of the registered trade mark covering wider area as a device trade mark. The plaintiff cannot claim exclusive right over the word 'UNISON' by mentioning it as its registered trade mark.

8. Even otherwise, the registration of the trade mark is only a Page 6 of 38 Downloaded on : Thu Jul 18 20:55:27 IST 2024 NEUTRAL CITATION C/AO/98/2024 CAV JUDGMENT DATED: 16/07/2024 undefined prima facie evidence of its validity. As per the requirement of Section 17 of the Trade Mark Act, when a trade mark consists of several matters, it's registration shall confer on the proprietor exclusive right to use the trade mark taken as a whole, but if its any part is separately registered by the proprietor as a trade mark, the registration shall not confer any exclusive right in the matter of forming only a part of the whole of the trade mark so registered. The contention is that the device trade mark of the defendant 'UniSN Health Checkups and Diagnostic' bears unique font style, design and view with its label and is different from the trade mark of the plaintiff. These aspects in comparison of the two registered device trade marks have been conveniently ignored by the Trial Court. The device trade mark registered in its composite form is distinctively different from that of the defendant. The registered trade mark of the plaintiff is devoid of any distinctive character and as per own claim of the plaintiff in the proceedings before the Registrar of the trade mark, on the application of the plaintiff for registration in Class 44, the trade mark applied by the plaintiff is a label trade mark and is capable of distinguishing the goods of the plaintiff/applicant. An objection has been taken by the Registrar of the trade mark on the application of the plaintiff that because of the same / similar trade mark (s) is/are already on record of the Registrar for the same or similar goods / services, under Section 11(1) of the trade marks Act, 1999, because of such identity or similarity there exists a Page 7 of 38 Downloaded on : Thu Jul 18 20:55:27 IST 2024 NEUTRAL CITATION C/AO/98/2024 CAV JUDGMENT DATED: 16/07/2024 undefined likelihood of creating confusing in the minds of the general public. It is, thus, argued that the trial court has committed a grave error of law in granting injunction to the plaintiff on the premise that the word 'UniSN' used in the device trade mark of the defendant is identical to the word mark 'UNISON' of the plaintiff, which is a part of the device mark registered in the name of the plaintiff, for the goods and services which are clearly different.

9. Reliance is placed on the decision of the Apex Court in F. Hoffmann-LA Roche & Co. Ltd. vs. Geoffrey Manners & Co. Pvt. Ltd. [(1969) 2 SCC 716] to submit that the test to determine similarity, and not dis-similarity is to examine and judge both the marks by their look and by their sound, also by considering the goods to which they are applied and further the nature and kind of the customers who would be likely to buy those goods. In fact, the Court must consider all the surrounding circumstances and further as to what is likely to happen if the trade mark is used in a normal way as a trade mark for the goods of the respective owners of the marks. Only when on consideration of all these circumstances, the Court comes to the conclusion that there will be a confusion in the minds of the public, which will lead to confusion in the goods, they can be said to be deceptively similar and the registration may be refused. It was urged by the learned advocate for the appellant that the Trial Court has erred in laying emphasis on the phonetic similarity of the two Page 8 of 38 Downloaded on : Thu Jul 18 20:55:27 IST 2024 NEUTRAL CITATION C/AO/98/2024 CAV JUDGMENT DATED: 16/07/2024 undefined words, which is also incorrect. The finding that the words 'UNISON' and 'UniSN' are phonetically similar, is also erroneous.

10. Reliance is further placed on the decision of the Apex Court in Nandhini Deluxe vs. Karnataka Cooperative Milk Producers Federation Ltd. [(2018) 9 SCC 183] to submit that the entire trade mark with logo adopted by both the parties are to be compared. The Trial Court has erred in taking out word the 'UNISON' on the assumption that the dispute is about the similarity in the Word Mark ignoring that the word 'UNISON' has not been registered as a Word Mark separately and the registration of the whole trade mark with logo and other character does not confer any exclusive right to the plaintiff.

11. The judgment of the Delhi High Court in TV 18 Broadcast Limited vs. Bennet Coleman and Company Limited (2023 SCC OnLine Del 3837) has further been relied on to substantiate the above submissions and to assert that the goods and services with respect to which the plaintiff has got registered its trade mark pertain to Classes 5 and 10, whereas the defendant is dealing with the goods and services falling in Class 44. In the totality of the facts and circumstances of the case, it cannot be said that trade mark of the defendant is deceptively similar to that of the plaintiff so as to create confusion in the minds of the consumers, who are essentially Doctors, Corporate Clients i.e. those working in the field of medicine. The goods and services supplied by the defendant Page 9 of 38 Downloaded on : Thu Jul 18 20:55:27 IST 2024 NEUTRAL CITATION C/AO/98/2024 CAV JUDGMENT DATED: 16/07/2024 undefined are not to be used by the ordinary consumers, as the class includes hospital services, medicine, clinic services, medical analysis services, dentistry, pharmacy advice, dietry, nutritional advice, health check-up services etc.

12. Further placing reliance on the judgment of the Bombay High Court in Shantapa vs. Anna (2023 SCC OnLine 2566), it was argued that in reply to the Registrar of the Trade Mark, noted hereinbefore, when the plaintiff was asked to explain as to why the registration be not refused as the trade mark 'UNISON' is similar to other registered trade mark, a statement was made by the plaintiff that it has its distinct characteristic and is not similar. Once this was the stand of the plaintiff, it is not entitled for injunction.

13. Mr. Harshit Tolia, the learned senior counsel for the respondent/plaintiff, in rebuttal, would rely upon the decisions in Amritdhara Pharmacy vs. Satya Deo Gupta (AIR 1963 SC 449); Kaviraj Pandit Durga Dutt Sharma vs. Navaratna Pharmaceutical Laboratories (AIR 1965 SC 980); K.R. Chinna Krishna Chettiar vs. Shri Ambal & Co., Madras & Anr. [(1969) 2 SCC 131]; Cadila Health Care Ltd. Vs. Cadila Pharma [(2001) 5 SCC 73] to submit that as compared to the legal position in the Pre-Act of 1999, phonetic similarity of the Word Mark, which is distinctive element of the registered trade mark has been given a statutory form and character by insertion of sub-section(9) in Section 29 of the Trad Marks Act, 1999. The submission is that when two words are Page 10 of 38 Downloaded on : Thu Jul 18 20:55:27 IST 2024 NEUTRAL CITATION C/AO/98/2024 CAV JUDGMENT DATED: 16/07/2024 undefined phonetically similar and other characteristics of the words used in the trade mark are identical, Section 29(9) will come into play and the word mark 'UNISON' being distinctive element of the registered trade mark, the defendant is liable to be injuncted from use of the word 'UniSN' in its trade mark, which is sought to be registered in Class 44.

14. It was argued that similarity between the two competing words is to be seen rather than dis-similarities to determine whether there is likelihood of deception or causing any confusion. It is to be examined by the Court as to what is essential, prominent and leading feature of the registered trade mark, which is the word 'UNISON' in the case of the plaintiff. Much emphasis has been laid on the language of Section 29 to assert that the case of the plaintiff falls in the said category, inasmuch as, the registered trade mark of the plaintiff is infringed by the defendant in course of trade, a mark which is similar to the registered trade mark, for the identical and similar goods and the services covered by the registered trade mark. The Court while examining as to whether the mark used by the defendant is identical or deceptively similar to the trade mark of the plaintiff, has to apply the test of perception as a common man, to reach at the conclusion as to whether the use of the word 'UniSN' by the defendant for the goods and services covered by Clause 44 has a likelihood to create confusion in the minds of the consumers.

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15. Reliance is further placed on Renaissance Hotel Holding Inc. vs. B. Vijaya Sai & Ors [(2022) 5 SCC 1] to submit that the label is immaterial and the act of infringement has to be determined in view of the provisions of of sub-section (9) of Section 29 of the Act. It is further submitted that the plaintiff has not only pleaded infringement, but also the prayer has been made to seek injunction against pass off the defendants' products / services / business activities and for the products/service/ business activities of the plaintiff. When Passing off action is sought against the defendant, it becomes essential to consider three aspects to find out as to whether a prima facie case of passing off action is made out or not. The three ingredients are, (i) prior use; (ii) good-will and (iii) likelihood of damage. In the trial for 'passing off', the Court has to see whether the plaintiff is able to make out a case to restrain the defendant from passing off its goods and service as that of the plaintiff.

16. The assertion in paragraph No. '31' of the plaint at page No. '25' of the appeal memo, is sought to be placed before us to submit that a specific relief has been sought to restrain the defendant from using the trade mark / trade name 'UniSN' same with that the plaintiff, inasmuch as the plaintiff has already suffered huge loss and damage due to unlawful activities of the defendant in carrying on business of providing its medical services, such as health check-up and diagnostic and other business activities relating to pharma Page 12 of 38 Downloaded on : Thu Jul 18 20:55:27 IST 2024 NEUTRAL CITATION C/AO/98/2024 CAV JUDGMENT DATED: 16/07/2024 undefined trade at Surat and Ahmedabad under the name and style of 'UniSN'. It was stated therein that though the plaintiff has no knowledge about the extent and quantity of sale / turn over of the impugned products by the defendant, it has strong apprehension that the defendant is passing off its goods and services in the market as that of the plaintiff. The submission is that the plea of injunction is not limited to the date of institution of the suit as in a case where passing off action is complained, it is to be seen by the Court the way in which the business may be carried on in future, not necessarily being carried on precisely on the date of the suit proceedings. The Court has to look into as to whether there is probability of confusion in the minds of the consumers in future and there may be a circumstance, where there is a likelihood of the defendant passing off its goods and services as that of the plaintiff.

17. The reputation of the goods, possibility of deception, likelihood of damage to the plaintiff are some of the essential ingredients to determine whether a prima facie case has been made out by the plaintiff to seek injunction. The plaintiff has started its business in the year 1980 and has been using the trade mark 'UNISON' for a period of more than 42 years. With the passage of time, it has acquired goodwill in the use of word 'UNISON'. The Trial Court has recorded a categorical finding that the defendant has been using the said trade mark only from the year 2021 while the plaintiff has Page 13 of 38 Downloaded on : Thu Jul 18 20:55:27 IST 2024 NEUTRAL CITATION C/AO/98/2024 CAV JUDGMENT DATED: 16/07/2024 undefined been using the trade mark since last more than 42 years.

18. It is further noted that as per the documentary evidence produced by the plaintiff, it has acquired a tremendous goodwill and reputation in the public at large by using the registered trade mark and the total turnover of the goods under it is quite good. The defendants were conscious about the well known reputation and goodwill of plaintiff's trade mark as they both being doctors were frequently visited by the medical representatives of the plaintiff company prior to incorporation of the defendant company.

19. A categorical finding has, thus, been returned by the trial court that it is a case of dishonest adoption of trade mark by the defendant and the act of the defendant in using such trade mark is not bona fide. In an infringement action, the plaintiff is entitled to injunction, if it has proved that the defendant is improperly using the plaintiff's mark. The test to determine as to whether the defendant's trade mark is identical with the plaintiff's mark and there is likelihood of confusion or deception arising from similarity of marks in passing off action, has been made out. In view of the detailed findings returned by the trial court, it was urged by the learned counsel for the respondent that in the case of passing off / infringement, there is no requirement to prove that the defendant is using the trade mark of the plaintiff.

20. Reliance is placed upon the decision of the Apex Court in Page 14 of 38 Downloaded on : Thu Jul 18 20:55:27 IST 2024 NEUTRAL CITATION C/AO/98/2024 CAV JUDGMENT DATED: 16/07/2024 undefined Midas Hygiene Industries Pvt. Ltd. and Anr. vs. Sudhir Bhatia and Others [(2004) 3 SCC 90] to vehemently argue that the law is well settled that in case of infringement of the trade mark, normally an injunction must follow. The grant of injunction becomes necessary, if it prima facie appears that the adoption of the mark was itself dishonest. It was urged that it has been held by the Apex Court and various High Courts that difference in business activities is not a bar in the action of passing off. In view of the provisions of Section 29 (2)(4) and (9), the focus is only on likelihood to cause confusion and deception in the public and consequent violation of the statutory right of the plaintiff, irrespective of different classes of goods / services. It was, thus, urged that no interference is called for in the findings returned by the Trial Court in arriving at the conclusion that prima facie case and balance of convenience is in favour of the plaintiff. It is, thus, prayed that the appeal be dismissed.

21. Heard the learned counsels for the parties and perused the record. To appreciate the rival contentions of the learned counsels for the parties, it would be appropriate to go through the legislative scheme of the Trade Marks Act, 1999 (hereinafter referred to as 'the Act, 1999').

22. Sub-section(1) of Section 28 of the Act, 1999 provides that subject to the other provisions of the Act, the registration of the Trade Mark shall, if valid, give to the registered proprietor of the trade mark, the exclusive right to use of the Page 15 of 38 Downloaded on : Thu Jul 18 20:55:27 IST 2024 NEUTRAL CITATION C/AO/98/2024 CAV JUDGMENT DATED: 16/07/2024 undefined trade mark in relation to the goods or services in respect of which the trade mark is registered, and, to obtain relief in respect of infringment of trade mark in the manner provided by the Act. Sub-section(2) of Section 28 provides that the exclusive right to the use of the trade mark given under sub- section (1) of Section 28 shall be subject to the conditions and limitations to which the registration is subject to. The rights created by Section 28(1) of the Act, 1997 in favour of the registered proprietor of the trade mark is not an absolute right and is subservent to the other provisions of the Act namely Sections 27(2) and 33 etc.. Neither Section 28 nor any other provision of the Act bars an action for passing off by an anterior user of the trade mark against a registered user of the same. [(Reference :N.R.Dongre & Other vs. Whirlpool Corporation and Others (AIR 1995 Del 389)].

23. Sub-section(1) of Section 29 of the Act, 1999 provides that a registered trade mark is infringed by a person using by way of permitted use, use in the course of trade, a mark which is identical with, or deceptively similar to, the trade mark in relation to the goods or services in respect of which the trade mark is registered and in such manner as to render the use of the mark likely to be taken as being used as a trade mark. Sub-section (2) of Section 29 provides three situations. The use of a mark in the course of the trade is likely to cause confusion on the part of the public or likelihood to have association with the registered trade mark. Sub-section(3) Page 16 of 38 Downloaded on : Thu Jul 18 20:55:27 IST 2024 NEUTRAL CITATION C/AO/98/2024 CAV JUDGMENT DATED: 16/07/2024 undefined of Section 29 provides that in any case falling under Clause(c) of sub-section(2), the Court shall draw a presumption that it is likely to cause confusion on the part of the public.

24. At this juncture, we may note that it is not the case of the plaintiff that the present case falls under clause (c) of sub- section(2) of Section 9, rather the submission is that the present case will fall in the eventuality covered by clause(b) of sub-section(2), for the trade mark used by the defendant because of its similarity to the registered trade mark and the identity or similarity of the goods or services covered by the registered trade mark (of the plaintiff). There is, thus, no question of presumption that the impugned mark is likely to cause confusion on the part of the public.

25. Sub-section(9) of Section 29, has been pressed into service by the learned counsel for the plaintiff/respondent to assert that the registered trade mark consists of word "UNISON" and has been infringed by the spoken use of the word 'UNISON', which is distinctive element of the registered trade mark. The submission is that the Legislature has given due importance to the phonetic similarity of the words used in the trade mark, where distinctive element of registered trade mark consists of and includes words. The insertion of sub- section(9) in Section 29 in the amendment brought in the trade mark by Trade Mark Bills 1999, is noticeable and shall be given due importance while examining the similarity in two trade marks.

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26. While considering the legislative scheme under Section 28, 29, 30 and 31 of the Act, 1999, the Apex Court has observed in paragraph No. 48 of Renaissance Hotel Holding Inc. (supra) as under :-

"48. The legislative scheme is clear that when the mark of the defendant is identical with the registered trade mark of the plaintiff and the goods or services covered are similar to the ones covered by such registered trade mark, it may be necessary to prove that it is likely to cause confusion on the part of the public, or which is likely to have an association with the registered trade mark. Similarly, when the trade mark of the plaintiff is similar to the registered trade mark of the defendant and the goods or services covered by such registered trade mark are identical or similar to the goods or services covered by such registered trade mark, it may again be necessary to establish that it is likely to cause confusion on the part of the public. However, when the trade mark of the defendant is identical with the registered trade mark of the plaintiff and that the goods or services of the defendant are identical with the goods or services covered by registered trade mark, the Court shall presume that it is likely to cause confusion on the part of the public."

27. In Ressainence (supra) quoted above, the Apex Court has held that the said case was squarely covered by the provisions of Section 29(2)(c) read with sub-section(3) of Section 29 of the Act. The High Court has erred in observing that there was no infringement of trade mark while setting aside the judgment and decree passed by the Trial Court, taking into consideration of Clause(c) of sub-section(2) of Section 29 of Page 18 of 38 Downloaded on : Thu Jul 18 20:55:27 IST 2024 NEUTRAL CITATION C/AO/98/2024 CAV JUDGMENT DATED: 16/07/2024 undefined the Act in isolation, ignoring the circumstances, in which the benefit of Section 30 of the Act, 1999 could be granted. The ratio of the said decision based on the effect of Section 29(2)

28. The question as to whether the present case falls under Clause(b) of Sub-section(2) of Section 29 of the Act, 1999 so as to injunct the defendant from using its trade mark with the word 'UniSN' is to be examined by us to examine the validity of the order of the Trial Court in granting injunction to the plaintiff. To deal with the said question, we must set out the test laid down to ascertain as to whether the trade mark used by the defendant is likely to deceive or cause confusion by its resemblance to the registered trade mark of the plaintiff and whether the impugned trade mark is used for identical or similar goods or services covered by the registered trade mark, as it is likely to create an impression to have association with the registered trade mark.

29. The Act does not lay down any criteria for determining what is likely to deceive or cause confusion. It is settled that each case must be dependent on its own particular facts and the judicial pronouncements are to be looked into as to the test applied for determining what is likely to deceive or cause confusion. In case the plaintiff is able to satisfy the Court by the test applied by it that the trade mark (impugned) is likely to deceive or cause confusion, it is entitled for injunction.

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30. In F. Hoffmann-LA Roche & Co. Ltd. (supra), the Apex Court has applied the test for comparison of the two word marks, formulated by Lord Parker in Pianotist Co. Ltd.'s case (23 RPC 774), wherein it was said that :-

"You must take the two words. You must judge of them, both by their look and by their sound. You must consider the goods to which they are to be applied. You must consider the nature and kind of customer who would be likely to buy those goods. In fact you must consider all the surrounding circumstances; and you must further consider what is likely to happen if each of those trade marks is used in a normal way as a trade mark for the goods of the respective owners of the marks. If, considering all those circumstances, you come to the conclusion that there will be a confusion, that is to say, not necessarily that one man will be injured and the other will gain illicit benefit, but that there will be a confusion in the mind of the public which will lead to confusion in the goods - them you may refuse the registration, or rather you must refuse the registration in that case."

31. It is stated in F. Hoffmann-LA Roche & Co. Ltd. (supra) that it is necessary to apply both the visual and phonetic test. The test formulated therein are :-

(i) That two words must be similar both by their look and by their sound;

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(ii) The Court must consider the goods to which they are to be applied;

(iii) The Court must consider the nature and kind of the customers who would be likely to buy those goods.

(iv) All the surrounding circumstances must be considered and further that what is likely to happen, if each of those trade marks is used in a normal way as a trade mark for the goods of the respective owners of the marks.

32. It is stated therein that if considering all those circumstances, the Court reaches at the conclusion that there will be confusion in the minds of the public which will lead to confusion for the goods, the registration must be refused. It is held in F. Hoffmann-LA Roche & Co. Ltd. (supra) that it is important that the marks must be compared as wholes. It is not right to take a portion of the word and say that because that portion of the word differs from the corresponding portion of the word in other case, there is no sufficient similarity to cause confusion. The true test is whether totality of the proposed trade mark is such that it is likely to cause deception or confusion or mistake in the minds of the persons accustomed to the existing trade mark. The words of Lord Johnston in Tokalon Ltd. Vs. Davidson & Co. (32 RPC at 133 at 136) have been noted in F. Hoffmann-LA Roche & Co. Ltd. (supra), in the following manner :-

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NEUTRAL CITATION C/AO/98/2024 CAV JUDGMENT DATED: 16/07/2024 undefined "...We are not bound to scan the words as we would in a question of comparatio literarum. It is not a matter for microscopic inspection, but to be taken from the general and even casual point of view of a customer walking into the shop.""

33. The Apex Court in Cadila Health Care Ltd. (supra) has noted the observations made in Amritadhara Pharmacy vs. Satya Deo Gupta (AIR 1963 SC 449) as under:-

"In an action for infringement, the plaintiff must, no doubt, make out that the use of the defendant's mark is likely to deceive, but where the similarity between the plaintiff's mark and the defendant's mark is so close either visually, phonetically or otherwise and the court reaches the conclusion that there is an imitation, no further evidence is required to establish that the plaintiff's rights are violated."

34. In Nandhini Deluxe (supra), it was observed that the proprietor of the trade mark cannot enjoy monopoly over the entire class of goods and particularly when he is not using the said trade mark in respect of certain goods falling under the same Class. It was held therein that the reasoning of the High Court that the goods belonging to the appellant and the respondent (though the nature of the goods different) belong to the same class and, therefore, it would be impermissible for the appellant to have the registration of the trade mark concerns in its favour would be meaningless, as there is no such principle of law. It was further held that though the goods of the appellant as well of the respondent fall under the same classes 29 and 30, notwithstanding the goods of the Page 22 of 38 Downloaded on : Thu Jul 18 20:55:28 IST 2024 NEUTRAL CITATION C/AO/98/2024 CAV JUDGMENT DATED: 16/07/2024 undefined appellant are different from that of the respondent. The word "'NANDHINI" and "NANDINI" is a generic term. It is not invented or coined word of the respondent. The nature and style of the business of the appellant and the respondent are altogether different. Though there is phonetic similarity in so far as the words "'NANDHINI" and "NANDINI" are concerned, the trade mark with the logo adopted by the two parties are altogether different. The Court has proceeded to examine each and very characteristics of the two trade marks and has held that when these marks are seen in totality, there is hardly any similarity of the appellant's mark with that of the respondent. The observation in this regard in paragraph Nos. '26.3 to 26.7', are relevant to be extracted hereinbelow:-

"26.3 The goods of the appellant as well as respondent fall under the same Classes 29 and 30. Notwithstanding the same, the goods of the appellant are different from that of the respondent. Whereas the respondent is producing and selling only milk and milk products the goods of the appellant are fish, meat, poultry and game, meat extracts, preserved, dried and cooked fruits and vegetables, edible oils and fats, salad dressings, preserves etc. and it has given up its claim qua milk and milk products.

26.4 Insofar as application for registration of the milk and milk products is concerned, it was not granted by the trade mark registry. In fact, the same was specifically rejected. The appellant was directed to file the affidavit and Form 16 in this behalf to delete the goods 'milk and milk products' which affidavit was filed by the appellant. Further concession is already recorded above.

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NEUTRAL CITATION C/AO/98/2024 CAV JUDGMENT DATED: 16/07/2024 undefined 26.5 NANDINI/NANDHINI is a generic, it represents the name of Goddess and a cow in Hindu Mythology. It is not an invented or coined word of the respondent. 26.6 The nature and style of the business of the appellant and the respondent are altogether different. Whereas respondent is a Cooperative Federation of Milk Producers of Karnataka and is producing and selling milk and milk products under the mark 'NANDINI', the business of the appellant is that of running restaurants and the registration of mark 'NANDHINI' as sought by the appellant is in respect of various foodstuffs sold by it in its restaurants.

26.7 Though there is a phonetic similarity insofar as the words NANDHINI/NANDINI are concerned, the trade mark with logo adopted by the two parties are altogether different. The manner in which the appellant has written NANDHINI as its mark is totally different from the style adopted by the respondent for its mark 'NANDINI'. Further, the appellant has used and added the word 'Deluxe' and, thus, its mark is 'NANDHINI DELUXE'. It is followed by the words 'the real spice of life'. There is device of lamp with the word 'NANDHINI'. In contrast, the respondent has used only one word, namely, NANDINI which is not prefixed or suffixed by any word. In its mark 'Cow' as a logo is used beneath which the word NANDINI is written, it is encircled by egg shape circle. A bare perusal of the two marks would show that there is hardly any similarity of the appellant's mark with that of the respondent when these marks are seen in totality."

35. The High Court of Madras in S.N.R. Dhall Mill vs. Kaleesuwari Refinary Private Ltd. [2022(92) PTC 217 (Mad) (DB] while dealing with the matter alleging infringement of the registered trade mark of the plaintiff and passing off, has noted that the plaintiff therein had a registered trade mark for the device containing the word "GOLD WINNER" and Page 24 of 38 Downloaded on : Thu Jul 18 20:55:28 IST 2024 NEUTRAL CITATION C/AO/98/2024 CAV JUDGMENT DATED: 16/07/2024 undefined other elements in Class-29. They apply only for the device mark in Class-30 and their application was still pending. Whereas, the defendant therein did not have the registered trade mark for the mark "GOLD WINNER" in Class-30. While examining the question as to whether the defendant has infringed the registered trade mark of the plaintiff, it was further noted that the registered trade mark of the plaintiff is a device mark. In view of Section 17 of the Trade Marks Act, 1999, when the trade mark consists of several parts, its registration shall confer upon the proprietor the exclusive right to the use of trade mark, taken as a whole and the registration shall not confer exclusive right in the matter forming only a part of the whole of the trade mark registered.

36. The High Court of Madras has compared the composite mark of the plaintiff and that of the defendant to reach at the conclusion that there was no occasion to form an opinion that the defendant's device mark could deceive any buyer and create any confusion to him when the defendant's mark is similar to that of the plaintiff's trade mark. It was admitted therein that when the two marks are compared, as a whole, they are different in Class. The Division Bench judgment of the Madras High Court in M/s Pathanjali Ayurved Limited and Divya Yog Mandir Trust vs. Arudra Engineers Private Limited [2021(85) PTC 523(Mad)(DB)], considering the scope of Section 17 of the Trade Marks Act, has been considered therein to Page 25 of 38 Downloaded on : Thu Jul 18 20:55:28 IST 2024 NEUTRAL CITATION C/AO/98/2024 CAV JUDGMENT DATED: 16/07/2024 undefined note that even under Section 17 of the Trade Marks Act, 1999, protection is only afforded to the entire trademark as registered, and not to mere parts of the trade mark. The composite trade mark, which contained other elements and not only the word "Coronil" as envisaged under Section 15, cannot be dissected and split up when registered as a label mark, though it is otherwise capable of being individually registered. The court will not dissect the label mark into its component parts and grant an injunction.

37. It was observed therein that the conflicting composition marks are to be compared by looking them as a whole, rather than breaking the marks up into their component parts for comparison. This is termed as 'anti-dissection' rule, which means a mark should not be dissected or split up into its component parts and each part then compared with corresponding parts of the conflicting mark to determine the likelihood of confusion. It would be violation of the anti- dissection rule to focus upon the prominent feature of a mark and decide likely confusion solely upon that feature, ignoring all other elements of the mark. It is improper to find that one portion of a composite mark has no trade mark significance, leading to a direct comparison between only that what remains.

38. The High Court also considered the impact of Section 29(9) of the Trade Marks Act, which was termed as an exception to Page 26 of 38 Downloaded on : Thu Jul 18 20:55:28 IST 2024 NEUTRAL CITATION C/AO/98/2024 CAV JUDGMENT DATED: 16/07/2024 undefined the Anti-dissection Rule, inasmuch as, the provision talks of comparison of a distinct and essential feature of the registered trade mark. It was noted that it is a settled law that the essential feature in trade mark has to be determined in the facts and circumstances of each case. The identification of the essential feature of a mark is a question of fact and depends upon the judgment of the Court based on the evidence led before it as regards usage of the trade mark. Reference has been made to the decision of the Apex Court in Kaviraj Pandit Durga Dutt Sharma (supra) to note as under:-

"29.......'The identification of the essential features of the mark is in essence a question of fact and depends on the judgement of the Court based on the evidence led before it as regards the usage of the trade. It should, however, be borne in mind that the object of the enquiry in ultimates analysis is whether the mark used by the defendant as a whole is deceptively similar to that of the registered mark of the plaintiff.''

39. Taking note of the above, we may further note the content of Class-5 and Class-10 under which the trade mark of the plaintiff has been registered as a device mark :-

Class 5 Pharmaceuticals, medical and veterinary preparations; sanitary preparations for medical purposes; dietetic food and substances adapted for medical or veterinary use, food for babies; dietary supplements for human beings and animals; plasters, materials for dressings; material for stopping teeth, dental wax; disinfectants;

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Explanatory Note Class 5 includes mainly pharmaceuticals and other preparations for medical or veterinary purposes.

This Class includes, in particular:

- sanitary preparations for personal hygiene, other than toiletries;

- diapers for babies and for incontinence;

- deodorants, other than for human beings or for animals;

- medicated shampoos, soaps, lotions and dentifrices;

- dietary supplements intended to supplement a normal diet or to have health benefits;

- meal replacements and dietetic food and beverages adapted for medical or veterinary use.

This Class does not include, in particular:

- ingredients for use in the manufacture of pharmaceuticals, for example, vitamins, preservatives and antioxidants (Cl. 1);

- sanitary preparations being non-medicated toiletries (Cl. 3);

- deodorants for human beings or for animals (Cl. 3);

- support bandages, orthopaedic bandages (Cl. 10);

- meal replacements and dietetic food and beverages not specified as being for medical or veterinary use, which should be classified in the appropriate food or beverage classes, for example, low-fat potato crisps (Cl. 29), high-protein cereal bars (Cl.

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30), isotonic beverages (Cl. 32).

Class 10 Surgical, medical, dental and veterinary apparatus and instruments; artificial limbs, eyes and teeth; orthopedic articles; suture materials; therapeutic and assistive devices adapted for persons with disabilities; massage apparatus; apparatus, devices and articles for nursing infants; sexual activity apparatus, devices and articles.

Explanatory Note Class 10 includes mainly surgical, medical, dental and veterinary apparatus, instruments and articles generally used for the diagnosis, treatment or improvement of function or condition of persons and animals.

This Class includes, in particular:

- support bandages, orthopaedic bandages;

- special clothing for medical purposes, for example, compression garments, stockings for varices, strait jackets, orthopaedic footwear;

- articles, instruments and devices for menstruation, contraception and childbirth, for example, menstrual cups, pessaries, condoms, childbirth mattresses, forceps;

- therapeutic and prosthetic articles and devices for implantation made of artificial or synthetic materials, for example, surgical implants comprised of artificial materials, artificial breasts, brain pacemakers, biodegradable bone fixation implants;

- furniture especially made for medical purposes, for example, armchairs for medical or dental purposes, air mattresses for medical purposes, operating tables.

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NEUTRAL CITATION C/AO/98/2024 CAV JUDGMENT DATED: 16/07/2024 undefined This Class does not include, in particular: -

- medical dressings and absorbent sanitary articles, for example, plasters, bandages and gauze for dressings, breast-nursing pads, diapers for babies and for incontinence, tampons (Cl. 5);

- surgical implants comprised of living tissue (Cl. 5);

- tobacco-free cigarettes for medical purposes (Cl. 5) and electronic cigarettes (Cl. 34);

- wheelchairs and mobility scooters (Cl. 12);

- massage tables (Cl. 20)

40. We may also note Class-44 under which, admittedly the defendant has filed an application for registration of the trade mark "UniSN Health Checkups and Diagnostics" :-

Class 44 Medical services; veterinary services; hygienic and beauty care for human beings or animals; agriculture, aquaculture, horticulture and forestry services.

Explanatory Note Class 44 includes mainly medical care, including alternative medicine, hygienic and beauty care given by persons or establishments to human beings and animals, as well as services relating to the fields of agriculture, aquaculture, horticulture and forestry.

This Class includes, in particular:

- hospital services;

- telemedicine services;

- dentistry, optometry and mental health services;

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- medical clinic services and medical analysis services for diagnostic and treatment purposes provided by medical laboratories, such as x-ray examinations and taking of blood samples;

- therapy services, for example, physiotherapy and speech therapy;

- pharmacy advice and preparation of prescriptions by pharmacists;

- blood bank and human tissue bank services; convalescent home and rest home services;

- dietary and nutritional advice;

- health spa services;

- artificial insemination and in vitro fertilization services;

- animal breeding;

- animal grooming;

- body piercing and tattooing;

- services relating to gardening, for example, plant nursery services, landscape design, landscape gardening, lawn care;

- services relating to floral art, for example, flower arranging, wreath making;

- weed killing, vermin and pest control for agriculture, aquaculture, horticulture and forestry.

This Class does not include, in particular:

- vermin and pest control, other than for agriculture, aquaculture, horticulture and forestry (Cl. 37);

- installation and repair services for irrigation devices (Cl. 37);

- ambulance transport (Cl. 39);

- slaughtering of animals and taxidermy (Cl. 40);

- timber felling and processing (Cl. 40);

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- animal training services (Cl. 41);

- health clubs for physical exercise (Cl. 41);

- scientific research services for medical purposes (Cl.

42);

- boarding for animals (Cl. 43);

- retirement homes (Cl. 43);

- funerary undertaking (Cl. 45).

41. A perusal of the classes in which the goods and services for which the trade mark of the plaintiff has been registered namely Class-5 and Class-10, it is clear that the goods and services falling in clauses 5 and 10 of the plaintiff are quite different from the goods and services covered by Class-44 wherein the defendant is doing its trade. There is no overlapping between the goods and services for two classes. The word "UNISON", though capable of being individually registered, but has been made part of a device mark, which contains other elements such as a suffix design of a Capsule with the word "UNISON" inscribed into it and word "Pharmaceuticals" as a suffix. There are other designs at the bottom of the word 'UNISON' in the shape of two horizontal rectangular boxes. The registration has been obtained by the plaintiff of a device mark with the words "UNISON Pharmaceuticals" and a suffix of capsule with the word "UNISON" inscribed into it, and not as a word mark "UNISON" envisaged under Section 15.

42. The plaintiff, thus, for the purpose of Section 29(4) of the Page 32 of 38 Downloaded on : Thu Jul 18 20:55:28 IST 2024 NEUTRAL CITATION C/AO/98/2024 CAV JUDGMENT DATED: 16/07/2024 undefined Trade Marks Act, 1999, cannot claim monopoly over the word "UNISON" as it was registered as a part of the composite mark. Any such effort to split up the component of a composite device mark would be in contravention of the 'anti-dissection' rule. It would be contrary to pick out and focus upon one feature of a mark to decide as to whether the usage of the trade mark 'UniSN' by the defendant is likely to create confusion, solely based upon that feature, ignoring other elements of the device mark.

43. Further, considering sub-section (9) of Section 29, we may note that even if the distinctive element of the plaintiff's registered trade mark is treated as consisted of word "UNISON", it would be necessary for us to apply both the tests of phonetic as well as visual similarity. The visual representation of two marks, where plaintiff's mark is "UNISON Pharmaceuticals Pvt. Ltd." with other elements included in the device mark and the defendant's mark is "UniSN Health Checkups and Diagnostics", show no similarity. The defendant is engaged in the business/services of providing health check-up and diagnostic services and it's case is that the word "UniSN" has been coined by the defendant by suffixing 'SN' which comprised of the first alphabet taken from the first names of two promoters of the defendant's firm combining with the word 'Uni'. The contention is that the defendant's mark additionally has a unique artistic character, which are creation of the defendant. On the visual Page 33 of 38 Downloaded on : Thu Jul 18 20:55:28 IST 2024 NEUTRAL CITATION C/AO/98/2024 CAV JUDGMENT DATED: 16/07/2024 undefined representation of two marks, the design and view seem different. Further, the phonetic similarity between two marks on account of use of common word "UNI", as opined by the trial court, does not seem to be convincing, inasmuch as, it cannot be said with full confidence at the prima facie stage that both the words "UNISON" and "UniSN" are phonetically similar.

44. Further, the Classes of goods and services being provided under Class-44 by the defendant mainly included hospital services, tele-medicine services, optometry, mental health services, medical clinic services and medical analysis services for diagnostic and treatment purposes provided by medical laboratories, such as X-ray, collection of blood samples, etc. apart from therapeutic services such as physiotherapy and speech therapy. The other services such as dietary and nutritional advice, health spa, body piercing and tattooing, services relating to gardening, floral art, artificial insemination, animal breeding and animal grooming are not such services which are directly provided to ordinary consumer. The customers to whom these services are to be provided would be professionals such as doctors, veterinarian and corporate clients. Insofar as the medical, surgical and dental services are concerned, even if it is accepted for a moment that there would be some overlapping in the services pertaining to medical, dental, pharmaceutical fields, as being provided by the plaintiff in Class-5 and Class-10, it is difficult Page 34 of 38 Downloaded on : Thu Jul 18 20:55:28 IST 2024 NEUTRAL CITATION C/AO/98/2024 CAV JUDGMENT DATED: 16/07/2024 undefined for the Court to form an opinion at the prima facie stage that the professionals to whom the goods and services are being provided, would not be able to notice the difference, noted by us from the visual representation of two device trade marks. From the nature of goods and services provided by the plaintiff and defendant, the chance of confusion is remote.

45. Thus, having taken into account the surrounding circumstances of the present case, viz. visual and phonetic representation of the two device trade marks, the goods to which they are applied, the nature and kind of customers to whom such goods and services are being provided, we have reached at a prima facie opinion that there is no possibility of confusion in the minds of the public as to the goods and services provided by the defendant and the plaintiff being similar.

46. Coming to the arguments of the learned counsel for the respondent on the plea of Passing-off, we may note that, at this interlocutory stage, once we have reached at the conclusion that the nature of the plaintiff's mark is a composite device and there is no degree of resemblance between the two marks in terms of phonetic and visual similarity and the nature of goods in respect of which they are used as trade marks are different, we do not find it a fit case for grant of injunction, as in our opinion, there is no likelihood of confusion between two marks.

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47. We may note that the Apex Court in Cadila Health Care Ltd.

(supra), has held that in an action for Passing-off on the basis of unregistered trade mark generally for deciding the question of deceptive similarity, the following factors are to be considered :-

a) The nature of the marks i.e. whether the marks are word marks or label marks or composite marks, i.e. both words and label works.

b) The degree of resembleness between the marks, phonetically similar and hence similar in idea.

c) The nature of the goods in respect of which they are used as trade marks.

d) The similarity in the nature, character and performance of the goods of the rival traders.

e) The class of purchasers who are likely to buy the goods bearing the marks they require, on their education and intelligence and a degree of care they are likely to exercise in purchasing and/or using the goods.

f) The mode of purchasing the goods or placing orders for the goods,

g) Any other surrounding circumstances which may be relevant in the extent of dissimilarity between the Page 36 of 38 Downloaded on : Thu Jul 18 20:55:28 IST 2024 NEUTRAL CITATION C/AO/98/2024 CAV JUDGMENT DATED: 16/07/2024 undefined competing marks.

48. It is held therein that weightage to be given to each of the aforesaid factors depends upon the facts of each case and the same weightage cannot be given to each factor in every case. Given conscious consideration to all the above factors in light of the facts of the instant case, it is difficult for us to form a prima facie opinion that the defendant had committed an act of Passing-off their goods as that of the plaintiff. Moreover, the said issue has to be decided by the trial court on the evidence led by the parties.

49. In view of the above discussion, we find that the identification of the essential feature of the mark for the purpose of Section 29(4) of the Trade Mark Act, 1999 and the plea of the plaintiff that the defendant has committed the act of Passing-off their goods as that of the plaintiff, being questions of fact, have to be determined by the trial court based on the evidence led before it as regards usage of the two trade marks.

50. In the ultimate analysis of the material before us, we find that the plaintiff has failed to make out a prima facie case for grant of interim injunction. The trial court has made an error in holding otherwise, heavily relying on the contention of the plaintiff that it is using the trade mark "UNISON" for running its business since more than 42 years and the defendant is using the trade mark "UniSN" since 14.06.2021, Page 37 of 38 Downloaded on : Thu Jul 18 20:55:28 IST 2024 NEUTRAL CITATION C/AO/98/2024 CAV JUDGMENT DATED: 16/07/2024 undefined ignoring the tests to be applied in the facts and circumstances of the case to arrive at the opinion of similarity between two trade marks so as to form a prima facie opinion of the defendant having infringed the registered trade mark of the plaintiff.

51. In view of the above discussion, we find that the judgment and order dated 18.05.2024 passed by the Judge, Commercial Court, Ahmedabad below Exhibit 7 in Commercial Trademark Suit No.13 of 2023 is liable to be set aside being perverse. The interim injunction application, is accordingly dismissed.

52. Needless to state that any observations made hereinabove, are for the purpose of adjudication of the interim injunction application and shall have no bearing on the merits of the case of the parties in the suit. The Trial Court is required to examine the plea of the parties on the evidence led by them during the course of the proceedings without being influenced by any of the observations made hereinabove.

53. In the result, the Appeal stands allowed.

The Civil Application would not survive and is disposed of accordingly, in view of the disposal of the main Appeal itself.

(SUNITA AGARWAL, CJ ) (PRANAV TRIVEDI,J) C.M. JOSHI/Bijoy Pillai Page 38 of 38 Downloaded on : Thu Jul 18 20:55:28 IST 2024

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