BOMBAY VESTORS Vs. CRYSTAL KNITTERS

JUDGEMENT

(1.) 1. C. S. No. 333 of 1986 has been filed by the plaintiff therein under Section 120 of the Trade and Merchandise Marks Act, hereinafter referred to as the Act, for a declaration that the threat by the defendant against the plaintiff using the trade mark'costal'in connection with its hosiery goods including banians is unjustified and for a permanent injunction restraining the defendant from continuing the said threat. Application No. 2666 of 1986 has been filed by the plaintiff for an order of interim injunction. An ad interim injunction has been granted, to vacate, which the defendant therein has filed Application No. 3499 of 1986.

(2.) C. S. No. 479 of 1986 has been filed by the defendant in C. S. No. 333 of 1986 against the plaintiff in C S. No. 333 of 1986 under section 28 of the Act for infringement of the plaintiffs registered Trade mark 'crystal'seeking an injunction restraining the defendant therein from manufacturing and marketing hosiery goods including banians and other garments under the offending trade mark'costal'or any other mark, which is identical with or deceptively similar to the plaintiff's registered trade mark'crystal'. Application No. 3501 of 1986 is by the plaintiff therein for an order of interim injunction pending disposal of suit.

(3.) THE word'crystal'and the word'costal', when pronounced, sound similar. THEre is thus phonetic similarity between the two. Both the words have two syllables, the word'crystal'has the two syllables 'cry'and'stal'and the word'costal'has the two syllables'co'and'stal'. THE last syllable is identical in both. In the pronouncement of there two words the emphasis is on the second syllable'stal'and a man of average intelligence and imperfect recollection is apt to ignore the negligible dissimilarity in the first syllable and consider both the goods to be the same. THE mark'costal' therefore, amounts to an infringement of the mark'crystal'. I shall now refer to decided illustrations on this aspect. In Colgate Palmolive Limited v. Pattron, 1978 RPC 635 (PC) 635, the word'tringate'was held similar to colgate. Similarly VIMCO was held similar to'simco' (1977 IPLR 191)'formis' was held similar to'charmis' (1976 IPLR 40)'ucolite'was held similar to 'coalite' (1931) 48 RPC 477 Prima facie, therefore, the defendant's trade mark 'costal'is deceptively similar to the plaintiff's registered trade mark 'crystal'and is an infringement of the same.