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1. The present suit for permanent injunction restraining passing off; dilution & tarnishment; unfair competition; damages; rendition of accounts; delivery up; etc. has been filed by the plaintiff against the defendant in respect of the trademark MAXTRADE. Along with the suit, plaintiff also filed an application under Order 39 Rule 1 and

2. The suit along with said interim application was listed before Court on 24th May, 2013. After hearing, detailed ex-parte order was passed restraining the defendant, its officers, agents, servants, etc. from using the trade mark MAXTRADE or any other mark that is identical/deceptively similar to the plaintiff's registered trade/service mark MAXTRAD in respect of the same services that are being offered by the plaintiff.

20. The use of the impugned mark by the defendant is creating and is bound to create confusion in the minds of the general public who due to the deceptive similarity between the impugned mark and the plaintiff's mark will associate the services rendered by the defendant with those of the plaintiff or as having some nexus or connection with the plaintiff. In fact various complaints have been lodged by consumers against the defendant's fraudulent conduct and services.

21. On coming to know of the misuse of its trademark 'MAXTRAD' the plaintiff vide notice dated 4th February 2013 informed the defendant of its rights and in order to amicably settle the matter requested the defendant to furnish an undertaking not use the impugned identical/deceptively similar mark in relation to their services. The defendant replied to the plaintiff's notice through its letter dated 5th March 2013 wherein though it admitted to be later in adoption of the impugned mark 'MAXTRADE', it expressed its intention to continue to use the impugned mark.

32. Section 29(2) of the Act is a new provision introduced in the Act whereby the scope of infringement enlarged than under the earlier enactment. The words used in Section 29(2)(b) are "similarity" of trademarks as opposed to use of the word "deceptively similarity" used in Section 29(1). The threshold for considering similarity of trademarks under this section is therefore apparently different from the consideration related to "deceptive similarity" of trade mark.

In order to come under this provision, it is sufficient that the similarity of the marks is such as is likely to cause confusion not deception or to cause any association with the registered trade mark.

(viii) In the decision reported as (1945) 65 RPC 62, Aristoc Ltd v. Rysta Ltd. decided by the House of Lords, it was held that the comparison of trademarks was a matter of first impression, but the mark "Rysta" too closely resembled mark "Aristoc" phonetically and it would be liable to lead to deception and confusion.

38. Thus, it appears to the Court that the trademark used by the defendant is deceptively similar to the trademark of the plaintiff and the use of the mark MAXTRADE by the defendant is likely to cause confusion and deception, as it is almost identical to the trademark of the plaintiff.