Gujarat High Court
Rameshkumar Nagjibhai Solanki vs Dantiwada Seeds on 7 August, 2015
Author: Akil Kureshi
Bench: Akil Kureshi
C/AO/534/2014 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
APPEAL FROM ORDER NO. 534 of 2014
With
CIVIL APPLICATION NO. 13941 of 2014
In
APPEAL FROM ORDER NO. 534 of 2014
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RAMESHKUMAR NAGJIBHAI SOLANKI....Appellant(s)
Versus
DANTIWADA SEEDS....Respondent(s)
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Appearance:
MR POPATJI H SOLANKI, ADVOCATE for the Appellant(s) No. 1
MR HIREN U TRIVEDI, ADVOCATE for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE AKIL KURESHI
Date : 07/08/2015
ORAL ORDER
1. The Appellant is the Original Defendant. He has challenged the order dated 18.2.2004 passed by the learned Additional District Judge, Deesa below Application Exh.5 in Regular Civil Suit No. 2 of 2013. By such order the Respondent was restrained from using its trademark on its label of Seeds which was produced by the Plaintiff at Mark 4/2.
Brief facts are as under.
2. The Respondent herein - Original Plaintiff is a proprietary concern and deals in manufacturing and trading of all kinds of Hybrid Page 1 of 6 HC-NIC Page 1 of 6 Created On Tue Aug 11 01:38:20 IST 2015 C/AO/534/2014 ORDER Seeds included in Class 31 of the Trade Marks Act, 1999 (hereinafter referred to as "the Act"). The Plaintiff is the registered proprietor of the trade mark of a logo with 'DANTIWADA SEEDS' as also a label 'MUSTARD DS - 26' both in Class-31 of the Act. Such registration has been granted to the Plaintiff in the year 1985 and 1997 respectively. Ever since, the Plaintiff is using such registered trade mark in respect of its goods. As per the Plaintiff, the sales turn over for the year 1994-1995 were Rs.10.34 lacs which by the year 2012-2013 reached Rs.1.35 crores. This was achieved by the Plaintiff through the Plaintiff's efforts of publicity in which the Plaintiff has expended considerable amounts. According to the Plaintiff, the Defendant, who is also dealing in the same business, selling hybrid seeds in the name of 'DANTAWADA SEEDS SALES' has adopted the mark 'MUSTARD' along with DSS-26+ and used the label 'DANTAWADA SEEDS SALES' with a view to passing of his mark which is phonetically and visually similar to the Plaintiff's registered trade mark of 'DANTAWADA SEEDS' and 'MUSTARD DS - 26' label mark in respect of the said products namely the hybrid seeds. According to the Plaintiff, the Defendant has adopted such means to confuse and deceive the unwary consumers by giving false impression and use a deceptively similar Page 2 of 6 HC-NIC Page 2 of 6 Created On Tue Aug 11 01:38:20 IST 2015 C/AO/534/2014 ORDER trademark as that of the Plaintiff. Case of the Plaintiff also is that the Defendant has started using such mark long after the Plaintiff's use of its registered trademark. The Defendant has thereby tried to encash the Plaintiff's goodwill in the market. The Plaintiff therefore prayed for permanent injunction against the Defendant using such mark and also for damages. Pending the suit the Plaintiff prayed for following interim injunction:
"(A) The Hon'ble court be pleased to restrain the defendant, their agents, servants, dealers, representative and all other persons on their behalf by order of permanent injunction for manufacturing and marketing their product under the trademark and its label from using the trademark and its artwork MUSTARD along with DSS-26+ and used DANTIWADA SEEDS SALES in respect of Hybrids Seeds goods which is deceptively similar to the plaintiff's trademark and its label which amounts to infringement of trademarks plaintiffs suit product DANTIWADA SEEDS, DS-26 and MUSTARD DS-26.
(B) That pending hearing and final disposal of the suit, defendant, their agents, servants, dealers, representative and all other persons on their behalf from using the trademark and its label MUSTARD along with DSS-26+ and used DANTIWADA SEEDS SALES in respect of Hybrids Seeds goods which is deceptively similar to the plaintiff's trademark and its label which amounts to infringement of trademark of plaintiff's suit product DANTIWADA SEEDS, DS-26 and MUSTARD DS-26 be restrained by an order of permanent injunction of this Hon'ble Court from in any manner using the impugned trademark and its label in respect of the Hybrids Seeds goods."
3. The trial court granted ex parte injunction as under:
"Issue show cause notice to the defendant on payment of P.F. returnable on 25th October, 2013. Meanwhile defendant is hereby restraining to use the similar label which is produced below Exh.4/2 by way of ex-parte injunction and plaintiff is directed to Page 3 of 6 HC-NIC Page 3 of 6 Created On Tue Aug 11 01:38:20 IST 2015 C/AO/534/2014 ORDER follow the procedure of Order 39 Rule 3 of C.P.C."
4. The Defendant filed a common written statement - cum - reply to the Exh. 5 application contending that the Defendant had not breached any provision of the Act and that the two labels are vastly different.
5. After the bipartite hearing the trial court confirmed such injunction by the impugned order giving rise to this Appeal from Order.
6. Counsel for the Appellant - Original Defendant submitted that the two marks are completely different, there is no possibility of any deception or confusion. The Defendant has therefore not breached any provision of law. Trial court therefore committed serious error in granting injunction.
7. On the other hand, learned Counsel for the Original Plaintiff supported the order under challenge. He drew my attention to the two labels of the Plaintiff as well as that of the Defendant pointing out that phonetically and visually the marks are similar, the consumers are illiterate persons.
8. Having thus heard learned Counsels for the parties and having perused the documents on record it may be recalled that the Plaintiff is a proprietor of a registered trademark of the logo 'DANTAWADA SEEDS' as also the label 'MUSTARD DS-26'. Both have been registered in the year 1985 and 1997 respectively. Page 4 of 6 HC-NIC Page 4 of 6 Created On Tue Aug 11 01:38:20 IST 2015 C/AO/534/2014 ORDER Ever since the Plaintiff has been using such marks. The Defendant does not claim that its mark is a registered one. I have been shown both marks and logos. Both are substantially in English, printed on the cloth bags containing the hybrid seeds being sold by the Plaintiff and the Defendant respectively, both are similar colour scheme, both carry their names 'DANTAWADA SEEDS' written similarly. Except in case of the Defendant, it carries further word 'SALES' after 'DANTAWADA SEEDS'. The logos carry 'DS-26' in case of the Plaintiff whereas 'DSS-26+' in case of the Defendant. There is thus great scale of similarity between the two. As a proprietor of a registered trade mark, the Plaintiff is entitled to protect its exclusive use thereof against any other user of any unregistered mark which is deceptively similar to that of the Plaintiff. The term deceptively similar trademark is defined in Section 2(h) of the Act. It provides that a mark shall be deemed to be deceptively similar to another mark if it so nearly resembles that to other mark as to be likely to deceive or cause confusion.
9. In view of close similarity between the two marks in phonetic and visual aspects there is every possibility of the trademark of the Defendant deceiving the general consumers that the product being marked as that of the Plaintiff. One must recall that the goods being sold are hybrid seeds. The consumers would be Page 5 of 6 HC-NIC Page 5 of 6 Created On Tue Aug 11 01:38:20 IST 2015 C/AO/534/2014 ORDER agriculturists. Many of them may not be highly literate. Particularly when both the labels are in English, there is every possibility of the similarities mentioned creating confusion or deception amongst the seller. The trial court therefore committed no error in granting the injunction. Appeal from Order therefore fails and is dismissed along with Civil Application.
(AKIL KURESHI, J.) JNW Page 6 of 6 HC-NIC Page 6 of 6 Created On Tue Aug 11 01:38:20 IST 2015