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13. The plaintiff claims to have been extremely vigilant about protecting its rights and interests in its trademark 'MEX'. Some illustrative examples have been set out in the plaint with supporting documents filed on the record of the suit. Whenever deceptively similar trademarks were advertised by the trademark registry, the appellant claims to have opposed the same from time to time and succeeded in its opposition on the basis of its prior adoption and extensive use. In this regard, details of an opposition to a similar trademark advertised by one Nand Lal Laxmichand Asrani and Kishor Nand Lal Asrani trading as M/s Nand Lal & Company who had filed an application for registration of trademark MAX in class 9 bearing application no.328028 in respect of similar goods have been provided. In those proceedings, the Assistant Registrar of Trade Marks, Bombay upheld the contention of the plaintiff under Section 12(1) and Section 11 of the Trade Marks Act, 1999. In other words, the Registrar came to the conclusion that the impugned trademark would be deceptively similar to that of the plaintiff's. However, he disallowed the opposition on the ground that the applicant therein could avail of the benefit of sub-section 3 of Section 12 of the Act.

31. A joint reading of Sections 28 and 29 of the statute discloses that a registered trademark is infringed by a person, who, not being a registered proprietor thereto uses it in the course of trade mark which is identical or deceptively similar in relation to the goods or services which are identical or similar to that in respect of which the trademark is registered without the permission of the trademark owner.

32. It is trite that upon registration of a trademark, the registered proprietor, under Section 28, gets the exclusive right to the use of such trademark in connection with the goods in respect of which it is registered and if there is any invasion of this right by any other person using the trademark which is the same or deceptively similar to this trademark, he can protect the trademark by action of infringement in which he can obtain an injunction. (Ref. AIR 1986 SC 137, : 1986 (6) PTC 71 (SC), American Home Products v. Mac Laboratories; AIR 1971 SC 898 : PTC (Suppl) (1) 586 (SC), National Bell Co. v. Metal Goods Mfg. Co.)

35. In this regard, reference may usefully be made to the pronouncement of the Supreme Court in AIR 1970 SC 146 : PTC (Suppl) (1) 258 (SC), K.R. Chinna Krishna Chettiar v. Sri Ambal& Co. In this case, the Supreme Court had held that an ocular comparison is not always the decisive test. The resemblance between two marks must be considered with reference to the ear as well as to the eye. In this case, the Registrar held that the sound of "AMBAL" does not so nearly resemble the sound of "ANDAL" in spite of certain letters being common to both the marks, as to be likely to cause confusion or deception. The Registrar thus found that the marks were not deceptively similar. In appeal, both, the ld. Single Judge and the Division Bench of the High Court, found that the marks were deceptively similar. The Supreme Court had dismissed the appeal and held that there were striking similarity and affinity of sound between the words and there was a real danger of confusion between the two marks.

51. The defendant has adopted the plaintiff's trademark 'MEX'and merely prefixed 'O' to the same. It has also adopted the word "GOLD" after OMEX.

52. Mr.Shailen Bhatia has drawn our attention to the several attempts made by the respondent No.1 to seek registration of alleged trademarks, which are deceptively similar to the trademark 'MEX' of the plaintiff. The following details of applications for registration of such deceptively similar trademarks filed by the respondent No.1 have been placed before us: