2013 (5) TMI 247 - HC - Companies Law

Permanent injunction - As per the plaintiff the trademark GULVARI of defendant deceptively or phonetically similar to the trademark of the Plaintiff GULABARI - Held that - As the plaintiff led evidence by filing affidavits & also exhibited its trade mark registration certificates, invoices, photographs and sale invoices, thus this Court is of the opinion that plaintiff has proved the facts stated in the plaint & since the plaintiff s evidence has gone unrebutted, said evidence is accepted as true and correct. Adoption of the trade mark GULVARI by the defendant amounts to infringement of the plaintiff s trade mark GULABARI - use of the mark GULVARI by the defendant which is deceptively similar to the plaintiff s registered trade mark GULABARI is bound to cause confusion in the mind of the consumers about the source of the rose water on account of deceptive similarity between the two marks. The possibility of confusion and deception is compounded on account of visual similarity between the trade dress and get up of the defendant s packaging with those of the plaintiff predominantly on account of similarity of colour combination of pink, white and silver as well as lay out and arrangement of features including the cap and size of the bottle. Also considering the nature of goods and the class of consumers who purchase and use rose water, this Court is of the opinion that confusion or deception is inevitable leading to passing off of the defendant s goods as those of the plaintiff. In favour of plaintiff.

Summary

Issues involved:
Violation of trademark rights and copyright infringement in the sale of rose water products.

Analysis:
1. The plaintiff filed a suit seeking permanent injunction against the defendant to restrain them from manufacturing, selling, or advertising rose water under the trademark "GULVARI" or any deceptively similar trademark to the plaintiff's "GULABARI." The plaintiff also sought injunction against the defendant's trade dress and layout similarities with the plaintiff's product.

2. The plaintiff claimed to have been engaged in the manufacture and sale of rose water under the trademark "GULABARI" for three decades, with the trademark and label registered under the Trade Marks Act, 1999. The plaintiff asserted copyright protection for the distinctive color combination of pink and white used in their product's packaging and label since 1993.

3. The defendant launched its rose water product under the name "GULVARI," which the plaintiff alleged was deliberately chosen to be deceptively similar to their trademark. The plaintiff contended that the defendant copied their trade dress to cause confusion among consumers and pass off their product as that of the plaintiff.

4. The Court issued an ex parte injunction against the defendant in 2008, restraining them from selling rose water under the name "GULVARI" or any deceptively similar trade dress. The defendant failed to appear despite notice, leading to the case being proceeded ex parte in 2012.

5. The plaintiff provided evidence through affidavits, trade mark registration certificates, invoices, photographs, and sale invoices, which the Court found to be unrebutted and accepted as true and correct. The Court concluded that the adoption of the trademark "GULVARI" by the defendant infringed upon the plaintiff's trademark rights.

6. The Court determined that the defendant's use of the mark "GULVARI" was deceptively similar to the plaintiff's registered trademark "GULABARI," likely to cause confusion among consumers. The visual similarities in color combination, layout, bottle size, and other features between the defendant's and plaintiff's products further supported the finding of potential confusion and passing off.

7. Consequently, the Court decreed in favor of the plaintiff, granting permanent injunction as per the prayers 'A' and 'B' of the plaint, and directed the registry to prepare a decree sheet accordingly.