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Upon careful comparison of the plaintiff’s trade dress and that of the defendants, it became apparent that the overall colour scheme, get-up and layout of the defendants’ impugned packaging is nearly identical to that of the plaintiff’s trade dress.
The plaintiff averred that given the widespread sale, promotional and advertising activities undertaken by the plaintiff, the registered trade marks has become the single source identifier of the plaintiff and its goods and services.
The plaintiffs submitted that the confusingly similar trade mark in the field of pharmaceuticals, create greater injury as compared to products and services in other fields.
“It is clear that the impugned mark has been adopted by Respondent 1 dishonestly to trade upon the goodwill and reputation of the petitioner under the RAPIDO marks and to associate itself with the petitioner.”
“Petitioner has established that that it was the prior registered proprietor and prior user of the mark ‘GANESH’ and its other formative marks since 1936. The adoption and use of the mark ‘GANESH HARA MATAR’ by Respondent 1, is likely to create confusion in the market.”
Defendant’s dishonesty is evident as only after defendant received applicant’s cease-and-desist notice, it filed a trade mark application for the impugned mark “JHAMPA” on 05-09-2024, claiming use from 01-01-2024.
No plausible explanation was provided by the defendants as to why the trade mark ‘AMUL’ was adopted. No written statement was filed on behalf of the defendants. The conduct of the defendants highlighted their mala fide and dishonesty in adopting the same mark, as that of the plaintiffs’.
The plaintiffs submitted that Defendant 1 is dishonestly using an identical and deceptively similar trade mark as that of the plaintiffs’, so that any ordinary consumer would be misled to believe that Defendant 1’s products are that of the plaintiffs or associated with or emanating from the plaintiffs.
The term “Aashiqui” does not describe the general category of goods or services (films) but instead functions as a distinctive brand identifier for the Aashiqui Franchise.
“Even after the termination of their contractual relationship and the explicit withdrawal of rights to use the plaintiff’s trademarks and logos, defendants have unauthorisedly continued use of their deceptively similar marks.”
Defendant earlier using the mark “Ashirvad by Aliaxis” and adopting “ARTISTRY” only after plaintiff’s “ARTIZE” mark gained repute, prima facie, shows that there is a conscious attempt to ride on plaintiff’s reputation.
Plaintiff, Wow Momo made out prima facie case for grant of ex parte ad interim injunction and balance of convenience also lies in favour of plaintiff.
“Since defendants are using different marks on outer packaging of the impugned products and identical roundel devices on the individual cigarette sticks, the Local Commissioner is permitted to open cigarette packs to inspect the logos/devices on the individual cigarette sticks.”
“Balance of convenience lies in favour of plaintiff, and they are likely to suffer irreparable harm in case the injunction, as prayed for, is not granted.”
“Even if two device marks are visually completely dissimilar, and if their textual components are deceptively similar to each other, then visual dissimilarities between marks, owing to “added matter”, pale into insignificance, where infringement is concerned.”
“Balance of convenience lies in the plaintiff’s favour, considering that it is a well-known company in the travel business who has built its goodwill and reputation throughout the years, if an injunction is not granted it will lead to irreparable loss to the plaintiff.”
There will be confusion in the market, especially, in the nature of the product being Cookies, sold in the shelves of supermarkets, any ordinary customer looking at the shelf is bound to be deceived. Therefore, the product of ITC Ltd. is deceptively similar to that of Britannia.
“In view of pictorial depiction of stag, the “STAG” part of plaintiff’s mark has necessarily to be held to be its essential and dominating feature and the use, by defendant, of word STAG along with pictorial depiction of stag, clearly indicates imitation, by defendant, of essential features of plaintiff’s mark.”
“The confusion is exacerbated by the look and feel of the defendants’ website which has, obviously, deliberately and intentionally, been made to copy the plaintiffs’ website.”
“One cannot forget that these are ayurvedic preparations and not allopathic medicines or scheduled drugs for which, doctors’ prescriptions are required. These are over the counter preparations, which are often brought by patients without prescription.”