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them whether by themselves or of their servants, agents and assigns or otherwise howsoever from infringing or caused to infringe or enabling others to infringe the Trademark 'NIHAR' of the petitioner for any other mark which is of substantial reputation or colourable imitation therewith;

e) injunction restraining the respondents and each one of them whether by themselves or by their servants, agents or assigns or otherwise howsoever from selling or offering for sale or marketing 'NIKHAR' coconut oil in any manner whatsoever or in any way using the impugned label contained in Annexure 'J' herein or any colourable imitation therewith;"

The next decision Mr. Bose has relied on is in the case of Marico Limited - Vs. - J.K. Enterprises & Ors., reported in 2010 (44) PTC 443 (Cal). Mr. Bose has relied on paragraph 12 of the said decision which is set out below :

"12. Since the first defendant has not questioned the plaintiff's rights as the owner of the registered mark "Nihar", it has to be assessed as to whether in the use of the mark "Nihal" in conjunction with other words by the first defendant, there is infringement of the registered mark. There is no dispute that the two marks are used in respect of coconut oil, though the first defendant claims that its coconut oil is only of edible grade. At the highest, the products may not be identical in nature but in both being coconut oil, whether of the edible kind or the hair oil variety, they are certainly similar in nature. Infringement or passing- off is decided on the basis of both the visual and the phonetic appreciation of the rival marks. If the first defendant's word mark on its pouch is "Nihal Uttam", as it claims, it does not appear to be so in the manner of the writing thereof. "Nihal" is written in similar style as "Nihar" and "Uttam" is written in different colour and smaller size below "Nihal" on the first defendant's pouch. Even if, technically, the first defendant's word mark is "Nihal Uttam" it is the "Nihal" aspect which is emphasised on in the manner in which the word mark is represented on its pouch. "Nihal" is deceptively similar to the plaintiff's mark "Nihar" within the meaning of Section 2(h) of the Trade Marks Act, 1999 and the manner of presentation of the mark by the first defendant would, prima facie, entitles the plaintiff to an order of injunction against the first defendant both on account of infringement and passing-off. In the first defendant's plastic containers, the word "Fresh" appears to be more a description of the product than a part of its mark. Again, it is "Nihal" which stands out as the prominent feature of the mark. The visual depiction of the defendant's mark is such that the product will be recognised as "Nihal" and not as "Fresh Nihal" and despite the first defendant's insistence that its mark is "Fresh Nihal," "Nihal" is so prominently featured and "Fresh" is so indistinct in its plastic containers that it is likely to deceive or cause confusion within the meaning of the expression "deceptively similar" in Section 2(h) of the Act. Prima facie, there is very little to tell between the plaintiff's discontinued pouch and the first defendant's pouch; there is hardly any dissimilarity between the rival plastic containers. The test is not by placing the two products side by side and counting the minor differences; the test is as to whether the offending package is such that it reminds a casual viewer of the original package or gives an impression that it may be associated with the original package. The matter has to be assessed from the point of view of the prospective customer who, more often than not, will not have the benefit of having the two packages side by side or even the time or interest to compare the two; but who will go by pure impression and his indistinct memory."

Although, the said decision has been passed in the interlocutory stage of the matter but the principle enunciated in the decision is applicable in the present case and, therefore, I do not find any reason not to apply such well established principle in the present case.

In view of the ratio decided by the Hon'ble Apex Court and what has been established by the plaintiff through his evidence, this Court is of the view that the defendants are liable for passing off coconut oil bearing the Trademark 'NIHAR' and/or trade dress 'NIHAR' of the plaintiff by substantial reproduction or colourable imitation thereof and they are also liable for infringing the Trademark 'NIHAR' by substantial reproduction or colourable imitation thereof.