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40. A plain reading of Section 29(1) of the TM Act indicates that a registered trademark is infringed by a person who is not its registered proprietor if: (a) an identical or deceptively similar mark is used; (b) the use is in relation to goods and services in respect of which the trademark is registered; and (c) the mark is used in a manner likely to be perceived as being used a trademark. All the said conditions are required to be cumulatively satisfied. In the present case, there is no dispute that the impugned mark is used in relation to goods and services for which the appellant's trademark is registered, that is, in class 25 [clothing, footwear and headgears]. There is no dispute that the impugned marks are used by the respondents as a trademark for their goods. Thus, the only question to be examined is whether the impugned marks are deceptively similar to the appellant's trademarks, and in particular its trademark 'UNDER ARMOUR'.

49. We also consider it relevant to refer to the following observation of this Court in Vasundhra Jewellers Pvt. Ltd. v. Kirat Vinodbhai Jadvani & Anothers5: -

"33. Having stated the above, it is also necessary to bear in mind that examining the dominant part of the trademark for comparing it with the conflicting mark is solely for the purpose of determining whether competing marks are deceptively similar when viewed as a whole. It is, thus, not permissible to hold that two competing marks are deceptively similar by examining a portion of one mark and comparing it with the portion of another mark, if the composite marks viewed as a whole are dissimilar...."

82. The Hon'ble Apex Court in Vishnudas Trading as Vishnudas Kishendas v. Vazir Sultan Tobacco Co. Ltd.13 had considered the products in Class 34 and the various products covered within it. While considering identical mark of 'Charminar' in respect of manufactured Tabacco (cigarettes) and 'quiwam' & 'zarda' the Court noted:

"47. The respondent Company got registration of its brand name "Charminar" under the broad classification "manufactured tobacco". So long such registration remains operative, the respondent Company is entitled to claim exclusive use of the said brand name in respect of articles (1997) 4 SCC 201 made of tobacco coming under the said broad classification "manufactured tobacco". Precisely for the said reason, when the appellant made application for registration of quiwam and zarda under the same brand name "Charminar", such prayer for registration was not allowed. The appellant, therefore, made application for rectification of the registration made in favour of the respondent Company so that the said registration is limited only in respect of the articles being manufactured and marketed by the respondent Company, namely, cigarettes. In our view, if a trader or manufacturer actually trades in or manufactures only one or some of the articles coming under a broad classification and such trader or manufacturer has no bona fide intention to trade in or manufacture other goods or articles which also fall under the said broad classification, such trader or manufacturer should not be permitted to enjoy monopoly in respect of all the articles which may come under such broad classification and by that process preclude the other traders or manufacturers from getting registration of separate and distinct goods which may also be grouped under the broad classification. If registration has been given generally in respect of all the articles coming under the broad classification and if it is established that the trader or manufacturer who got such registration had not intended to use any other article except the articles being used by such trader or manufacturer, the registration of such trader is liable to be rectified by limiting the ambit of registration and confining such registration to the specific article or articles which really concern the trader or manufacturer enjoying the registration made in his favour. In our view, if rectification in such circumstances is not allowed, the trader or manufacturer by virtue of earlier registration will be permitted to enjoy the mischief of trafficking in trade mark. Looking to the scheme of the registration of trade mark as envisaged in the Trade Marks Act and the Rules framed thereunder, it appears to us that registration of a trade mark cannot be held to be absolute, perpetual and invariable under all circumstances. Section 12 of the Trade Marks Act prohibits registration of identical or deceptively similar trade marks in respect of goods and description of goods which is identical or deceptively similar to the trade mark already registered. For prohibiting registration under Section 12(1), goods in respect of which subsequent registration is sought for, must be (i) in respect of goods or description of goods being same or similar and covered by earlier registration and (ii) trade mark claimed for such goods must be same or deceptively similar to the trade mark already registered. It may be noted here that under sub-

111. In view of the above, the impugned order is set aside. The respondents are restrained from using the impugned marks or any other mark deceptively similar to the appellant's word mark 'UNDER ARMOUR' till the disposal of the suit.

112. The appeal is allowed in the aforesaid terms. All pending applications are also disposed of.