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b. Defendants have applied for registration of various trademarks such as 'UNOMINDA', 'SPARKMINDA', 'MINDAUTO PLUS','MINDAUTO MAX' and 'MINDA UTO PRO' in class 04 for lubricants, industrial oil, grease, engine and brake oil.

Defendant No. 3 has applied for registration of UNOMINDA on 29.09.2019 in class 04 for lubricants, etc. and has obtained registration for the mark MINDAUTO, applied for under application dated 03.07.2018 in class 04 for lubricants, industrial oil and grease, while applications for other trademarks under classes 01 and 04 are pending registrations. Defendant No. 3 has been continuously using the trademark SPARKMINDA since 2019 and has gathered considerable popularity in the market with considerable sales.

d. Contention of the Defendants that their trademark MINDA UTO is registered for goods in class 04 while Plaintiffs' trademarks are not registered with respect to goods in class 04 and therefore, no infringement is made out, is misconceived. It is a settled law that classification of goods and services adopted by the Registry or the international classification is not the determining factor for ascertaining the similarity of goods. Test of similarity has to be judged from a business and commercial point of view and factors such as trade channels, nature of goods and use of goods ought to be considered. Reliance was placed on the judgments in Assam Roofing Ltd. & Anr. v. JSB Cement LLP & Anr., 2015 SCC OnLine Cal 6581 and Dharampal Premchand Ltd. v. M/S. Ganpati Wood Products, 2002 SCC OnLine Del 839. The contention that rival goods are disimilar and thus, the Plaintiffs have no case for alleging infringement under Section 29 of the Act, is equally misplaced. Section 29 (2)(b) of the Act clearly provides that a registered trademark is infringed by a person, who not being a registered proprietor or a person using by way of permitted use, uses in the course of trade, a mark which because of its similarity to the registered trademark and similarity of goods and services covered by such registered trademark is likely to cause confusion in the public or an association with the registered trademark. It is settled that similarity of goods would include a case where the impugned goods are cognate and allied to the goods of a Plaintiff, for which the trademark is registered. In the present case, there is no gainsaying that the lubricants, industrial oils and grease sold by the Defendants are allied and cognate to the goods of the Plaintiffs, which can be broadly categorised as automobile spare parts.

503. The dispute there concerned the use of the Plaintiff's trademark, RANA, registered under Class 6, by the Defendant who had a registered trademark, RANA TOR, under Class 19. While allowing the Plaintiff's prayer for confirmation of an earlier ex parte injunction granted against the Defendant, the Court explained the scope Section 28 of the Act, in para 23, as follows:

44. Having interpreted Section 28(3) of the Act, the Court observed that the Plaintiff was seeking to protect its own trademark SHRIDHAR registered in class 29 from infringement, by restraining Defendants from using SHREEDHAR for goods in class 29 and not for goods for which Defendants hold registration, i.e., class 30 goods. In Rana Steels (Supra) Plaintiff had registration of the trademark RANA registered in respect of goods falling under class 06, i.e., steel rolled products, angles, channels, guarders, etc. and Defendant was a registered proprietor of the mark RANA TOR in respect to building material (steels) falling under Class 19. On the strength of Section 28(3) and 30(2)(e) of the Act, Defendant claimed that it had not infringed Plaintiff's registered trademark. The Court in this context observed as under:-