VINAY PAROLIA Vs. K. S. IMPEX

JUDGEMENT

(1.) Learned Advocate appearing for the plaintiff submits that, the defendants are guilty of infringing the registered label and trade mark of the plaintiff, namely, ADVANCE and ADVANCE GEAR respectively by using deceptively similar words for their products.

(2.) Learned Advocate appearing for the plaintiff draws the attention of the Court to the label which the plaintiff obtained registration on January 9, 2006. He submits that, a distinctive mark was registered as a label. He refers to registration of the trade mark ADVANCE GEAR with the distinctive logo on March 17, 2009. He draws the attention of the Court to the application made by the defendants for registration of the trade mark. He submits that, the registration was made on November 16, 2017. He draws the attention of the Court to the contents of the application. He submits that, according to the defendants, the trade mark which the defendants applied for registration was proposed to be used. Therefore, such proposed trade mark was not in use by the defendants prior to the making of the application. He submits that, the trademark which the defendants proposed registration contains the word ADVANCE PRO. The defendants have been used Pro in very small size in the entire set up. The same was done to deceive the public in general into believe that the product of the defendants is that of the plaintiff. The word is similar to the one which is used by the plaintiff much prior in point of time. He produces the products of both the parties and submits that, the packaging used by the defendants is deceptively similar to the one of the plaintiff. The same colour combination is used by the defendants as that of the plaintiff. According to him, any person of average intelligence with imperfect recollection will be deceived by the product of the defendants. He relies upon All India Reporter 2016 Calcutta 41 (Assam Roofing Ltd. and Ors. v. JSB Cement LLP and Ors.), 2006 Volume 8 Supreme Court Cases 726 (Ramdev Food Products (P) Ltd. v. Arvindbhai Rambhai Patel and Ors.), 2010 Volume 3 CHN 912 (R.R. Proteins and Agro Limited v. Hari Shankar Singhania and Anr.) as well as 2014 (2) AIR Bom R 142 (Pidilite Industries Limited v. Jubilant Agri and Consumer Products Limited) in support of his contentions.

(3.) Learned Advocate appearing for the plaintiff submits that, in the facts of the present case, Section 17 of the Act of 1999 is not attracted. Since, there is a registration mark in favour of the plaintiff and since, the plaintiff is the prior user, admittedly, on the basis of the documents as disclosed, the plaintiff is entitled an order of injunction, if not an order directing the defendants to maintain accounts.