Indian Kanoon - Search engine for Indian Law

Vs. A.B. Sugars Ltd. 204 (2013) DLT 177 where this Court held that there was a deceptive similarity between the marks of "Old Monk" and "Told Mom"

qua the alcoholic beverage of rum;

(E) The list of deceptively / conceptually similar names as given in McCarthy on Trademark (Vol. III), Section 23:29;

(F) Cadila Health Care Ltd. Vs. Cadila Pharmaceuticals Ltd. 2001 (5) SCC 73 on the concept of passing off; (G) Pfizer Products, Inc. Vs. Rajesh Chopra 2006 (32) PTC 301 (Del.) and Mars Incorporated Vs. Kumar Krishna Mukerjee 2003 (26) PTC 60 (Del.) to contend that apprehension that the defendant would pass off its goods within the jurisdiction of the Court is enough to give the Court jurisdiction;

if found to be similar or deceptively similar to the trademark "OLD MONK" of the plaintiff is likely to affect the goodwill attached to the trademark of the plaintiff. A trademark which distinguishes the goods of one person from those of the other is infringed not only when a average consumer thereof is led into buying the goods of the latter presuming the same to be of the former but also when such consumer by consuming the goods of the latter, under the impression that they are of the former forms an impression/opinion of the quality of the said goods and which impression/opinion guides the further purchases by the customer of the said goods and the reputation which the customs propagates of the goods.

(f) by taking unfair advantage of the distinctive character or repute of the registered trade mark;

13. Section 2(h) of the Act defines "deceptively similar as such near resemblance as is likely to deceive or cause confusion.

14. In my view, the test prescribed of „infringement‟, of deceptive similarity with, identity with and association with registered trade mark and of likelihood of confusion, simply put, is a test of possibility of the goods under the impugned trade mark being purchased by the intending consumers thereof, owing to the trade mark they bear, as the goods earlier consumed by them and which they intend to repeat or as originating from the same manufacturer / supplier whose goods were consumed and intended to be repeated or as goods recommended to them for purchase or consumption. A trade mark, in the absence of anything else, is the „face‟ of the goods by which the consumer / customer thereof identifies or recognizes or remembers the goods. Such identification / recognition / remembrance is dependent on the memory of the customers / consumer of such goods.

26. The application is accordingly allowed. The ex parte order dated 19.12.2013 is made absolute till the decision of the suit. In addition, the defendant is also restrained during the pendency of the suit from selling, distributing, advertising or otherwise dealing in goods bearing any mark / label similar or deceptively similar to the plaintiff‟s mark / label "Officer‟s Choice" or from doing anything leading to passing off their goods as the goods and business of the plaintiff.

27. Needless to say, nothing contained herein will affect the final decision in the suit.