WUXE ZHANG Vs. SUBHASH AGARWAL

JUDGEMENT

(1.) The plaintiff has filed the present suit to seek the reliefs of injunction, passing of, copyright infringement, rendition of accounts, delivery up and damages against the defendants.

(2.) The case of the plaintiff is that it is the prior user and adopter of the trademark "G'FIVE", which has been adopted by the plaintiff since 01.09.2008. The defendant has been using the mark, "X'FIVE" which is phonetically, visually similar and deceptively similar to the plaintiff's mark, "G'FIVE". The user of the defendant is in the same class of goods i.e. class 35 in which plaintiff's mark is registered. The plaintiff and the defendants are using their respective marks in respect of mobile phones. When the plaintiff preferred the present suit, its application for registration of its trademark, "G'FIVE" was pending registration. The same has been registered vide Certificate bearing No. 1825260 dated 03.06.2009 in class 9, No. 1956322 dated 26.04.2010 in class 9 and No. 1956323 dated 26.04.2010 in class 35, during the pendency of the suit.

(3.) The mark of the plaintiff which has since been registered is as follows: