ATMA RAM AGGARWAL Vs. PARIS STAR MANUFACTURING CO

JUDGEMENT

(1.) THIS is a suit brought by Atma Ram Aggarwal for perpetual injunction restraining the defendants namely M/s. Paris Star Manufacturing Co. from infringing the trade mark 'REIKO' on the Metallic Yarn, which the plaintiff is marketing from 1975. THIS trade mark it is stated was duly got registered under the Trade and Merchandise Marks Act, 1958 on 6th May 1978 and was effective from 1975, when the application in that direction was moved. The defendant it is alleged has started marketing the same type of Metallic Yarn under the name 'RINCO'. THIS is contended to be deceptively similar to that of the plaintiff's trade mark. Along with the suit, the plaintiff has moved an application under Order 39 Rules 1 and 2 read with Section 151 of the Code of Civil Procedure for an interim-order restraining the defendants from using the trade mark 'RINCO'. THIS application is opposed from the side of the defendants on the ground that the words are not deceptively similar which can cause any confusion with the unwary customers. The defendants have also moved an application under section 111 of the Trade and Merchandise Marks Act, 1958 for stay of the suit on the ground that they would like to assail the validity of the registration in plaintiff's favour before the High Court. THIS application is opposed by the plaintiff. I have heard both the sides and given my due consideration to all the circumstances. So far as the application of the defendants under Section 111 of the Trade and Merchandise Marks Act, 1958, the ground on which the trade mark of the plaintiff is said to be invalid is that it was got registered under class 23 while it should have been registered under clause 26 which specifically deals with place, embroidery ribbons etc. I however in this respect find that under Section 8 of the Act the decision of the Registrar as to the class under which any goods have to be registered has been made final. Till therefore the defendants are able to get the registration struck down on the ground that the same was under a wrong classification, the Court has to start with the presumption of the correctness of the registration. In any case since the defendants have expressed the desire to move under Section 111 for rectification of that trade-mark, the suit has to be stayed. However the stay of this suit does not prevent the Court from making an interim order against infringement as sub-section (5) specifically enjoins that till the rectification, an interim relief can be granted to the party holding the trade-mark. I therefore advert to the application which the plaintiff has moved under order 39 Rules 1 and 2 read with Section 151 of the Code of Civil Procedure. So far as the similarity of the cartons and labels, the plaintiff has not pressed his case in their regard at this stage. Instead the case is primarily based upon the similarity of the two words 'REIKO' and 'RINCO' and it is contended that visually and phonetically, they are equivalent and are likely to confuse the unwary customers. In this regard it is pointed out that the defendant is marketing the same Metallic Yarn and has started business from Sadar Bazar when the plaintiff is also operating. Another circumstances brought out by the plaintiff has been that in the yarn marketed by the defendant, although the length of the packet is described as ten thousand meters, the same in reality measures only eight thousand five hundred meters only. THIS on the face of it is a deception as naturally a lesser price would be charged from the customers representing the measurement to be ten thousand meters. A number of decisions have been cited from both the sides in order to bring out the similarity of different expressions and whether they can in the given circumstances result in confusion with the unwary buyers. A mark has to be treated as deceptively similar to another mark if it so nearly resembles the other mark as is likely to deceive or cause confusion. Now in the present case, the two marks 'REIKO' and 'RINCO' have similarity in their phonetic characteristic as they both start and end with almost the same phonetic result. There has of course been the insertion of 'N' by the defendant which in the pronunciation gives slightly different expression. However the over all result and the totality of impression remains the same. Another significant fact is that while the plaintiff has inserted in a small circle the word 'R' in the label affixed on the goods sold, the defendant has also incorporated the same word 'R'. Whether this word 'R' has the significance of registration or not is difficult to say. Suffice it to mention that some similarity has also been sought to be imported by the use of the word 'R'. The plaintiff has been owner of this trade-mark from 1975 and has filed figures of the sales in the different years which bring out that the sales have now started ranging around Rs. 10 lakhs. Considering the two names used by the parties in the sale of Metallic Yarns, I am prima facie of the view that the word 'RINCO' is deceptively similar to the word 'REIKO' and therefore the defendant should not use that during the pendency of this suit or till the time the defendant is able to get the trade-mark of the plaintiff rectified. I am not referring in detail to the different decisions cited as ultimately the view in a particular case has to be formed on the goods and the names actually used.