P.M. PALANI MUDALIAR & CO. REP. BY ITS MANAGING PARTNER MR. P. PANDIAN 36, CORAL MERCHANT STREET MANNADY, CHENNAI 600 001 Vs. M/S. JANSONS EXPORTS NO.129, SDN ROAD TIRUCHENGODE 637 211, NAMAKKAL DISTRICT

JUDGEMENT

(1.) These appeals are directed by the unsuccessful applicant against the order passed by the learned single Judge, whereby the learned single Judge vacated the interim injunction granted in favour of the applicant.

(2.) The appellant herein/applicant filed the original applications seeking an order of interim injunction against the respondents/defendants from using the words "SHAMS" and "ICE" in their label, as they being deceptively similar and further it infringes on the trademark of the appellant and for injunction restraining the respondents/defendants from passing off their product as that of the appellant herein/applicant.

(3.) It is the case of the appellant herein/applicant, before the learned single Judge, that the appellant being the prior user of the trademark "SHAMS" and "ICE", which is a registered mark, the respondents/defendants, with a view to gain productivity by the use of the already registered trademark, held by the appellant, have coined their label mark deceptively similar to that of the appellant so as to sell off their product as that of the appellant. It is the further case of the appellant that the 1st respondent, a relative of the appellant, due to business rivalry, with a view to capture the market of the appellant, has adopted the tactic of using the deceptively similar trademark and label as that of the appellant in order to further his business prospects and has registered the trademark with similarity in the label and also by using the word "SHAMS" and "ICE", which the appellant has been using for almost a period of three decades. It is the further case of the appellant that the label of the 1st respondent, though not an identical depiction of the pictorial representation of the appellant's trademark, nonetheless, is deceptively similar and, therefore, in all probability there is all likelihood of confusion that could arise in the mind of the common buyer. It is the further case of the appellant that the overall label of the 1st respondent is so very identical in almost all types of pictorial depiction, be it the band on the side or the band on the lower portion, that any ordinary buyer, in all likelihood, would be misled into believing that he is buying the product of the appellant. It is the further case of the appellant that the word "SHAMS" and "ICE" that is depicted on the label is the one in which the appellant has been trading since 1988 and that the words have got a brand value for itself. It is the further contention of the appellant that mere prefixing of the word "JABEL" before the word "SHAMS", which is used by the appellant is not so very pertinent, since the word "JABEL" signifying mountain in Arabic, is almost used by the major chunk of the traders in their trading activity in Arab countries. Therefore, the thrust would be very much on the word "SHAMS" rather than on "JABEL SHAMS" as people would associate the textile only with "SHAMS" and "JABEL" has no significance in the whole context of the label. The act of the 1st respondent in just prefixing the word "JABEL" is only with a view to mislead the buyer into buying the commodity on the premise that what is being bought is the product covered under the label of "SHAMS". Therefore, it is just and necessary that the interim injunction granted should have been made absolute, which, on a rather, misconstruction of the matter, has been vacated by the learned single Judge and the same requires to be interfered with by this Court.