Reliance Industries Limited, Mumbai Vs. Games Knitting Co., Tirupur - Court Judgment

S. Jagadeesan, Chairman

1. The appeal is directed against the order of the Assistant Registrar of Trade Marks, Chennai dated 18.1.96 overruling the objection of the appellant in the matter of Application No. 380935 in Class 25 filed in the name of Chennai Pandaram Arunachalam, Chennai Pandaram Krishnan, trading as M/s. Games Knitting Company, the respondent herein. The respondent engaged in the business of Hosiery including banians, knitted underwears, jatties, etc., trading in the name and style of M/s, Games Knitting Company, having their registered office at 19/B (2), P.N. Road, Tirupur, Coimbatore District. They filed an application for registration of the 1 able mark consisting of a device of a pair of human lips alongwith the word 'AIMLA' under Application No. 380935. The respondent claimed that they are using the said mark from 12.8.81. When the application of the respondent was accepted and notified, the appellant herein opposed the same by entering an opposition on the ground that the registration of the impugned trade mark would be contrary to the provisions of Sections 9, 11(a), 11(e), 12(i) and 18 of the Trade and Merchandise Marks Act, 1958. After hearing both the counsel, the Assistant Registrar of the Trade Mark, Chennai overruled the objection of the respondents and directed the registration of the impugned trade mark in the name of the respondent. This appeal is against the said order.

2. The respondent is not represented either in person or through counsel. We heard the arguments of Mr. M.K. Rao, the learned counsel for the appellant. The main contention of the learned counsel for the appellant is that the appellant's trade mark is 'VIMAL' in the backdrop of oval black colour. The respondent, with slight change in the shape of the letters have inscribed their trade mark 'AIMLA' in a similar backdrop. Since the structural similarity is there, there is every possibility that the goods of the respondent will be mistaken for that of the appellants. Further, there is every possibility that the customers of the appellants may mistake that the appellant had diversified their activities and involved themselves in the production of the hosiery. The letters in both the trade mark are also identical with the big size of 'M' in the centre. Though the goods produced by the appellant and the respondent are not the same, still the appellant is entitled to oppose the registration of the impugned trade mark on the ground that it may cause confusion in the minds of the unwary purchasers. He also relied upon an unreported judgment of the learned single Judge of the Bombay High Court in Miscellaneous Petition No. 8/91.

3. Though the learned counsel for the appellant relied upon the judgment of the Bombay High Court, we are of the view that it is of no assistance for the appellant. The appellant herein who is the appellant before the Bombay High Court opposed the registration of the trade mark SONAL and that was upheld by the Bombay High Court on two grounds. One is, phonetically, the words 'VIMAL' and 'SONAL' are similar and M/s. Anand Traders who filed for registration of the trade mark SONAL wanted to register the same in respect of textile fabrics and textile piece goods which are identical to that of the appellant herein. On facts, the principal laid down by the Bombay High Court may not applicable to the facts of the present case.

4. We carefully considered the contentions of the learned counsel for the appellant. The appellants trade mark 'VIMAL' and the respondents trade mark which is sought to be registered is 'AIMLA' are as follows:-

5. In order to consider the deceptive similarity it is relevant to consider the following factors:-

(i) Phonetic similarity; (ii) Structural similarity; (iii) The goods similarity

6. So far as the phonetic similarity is concerned, we are of the view that the appellants trade mark cannot be said to be phonetically similar to that of the respondent. The two names are different and distinguishable. The pronounciation is also totally different. One is 'VIMAL', and the other is 'AIMLA'. When an unwary purchaser wants to purchase the hosiery by using the respondent's trade mark, definitely, there cannot be any confusion between the respondents and the appellants trade mark. In fact, the Assistant Registrar of the Trade Mark had elaborately discussed the aspect. We agree with the same.

7. Coming to the question of the similarity of the goods, admittedly the appellants are dealing with textile piece goods of all kinds. The respondents are not dealing with textile piece goods of all kinds. The appellants are not dealing with hosieries. The respondents are dealing with hosiery including banians, knitted underwears, jat-ties, readymade garments, etc. The appellants and the respondents are trading in different commodities or articles. When that be so, there is absolutely no possibility for the unwary purchasers to mistake the commodity of the respondents for that of the appellants. Hence, there is no similarity of the goods also.

8. So far as the structural similarity is concerned, the backdrop of the appellants letters is an oval shape black colour. The respondent's is the black backdrop of lip shape. Though it can be said that the backdrop of both the trade mark is slightly similar, one cannot say that it is identical. There is some slight variation or change in both the back drops. One is plain oval shape. The other is lip shape. When we consider the different nature of the goods dealt with by the appellants and the respondents respectively and the different phonetic terms in the names used by both the appellants and the respondents, i.e., 'VIMAL' and 'AIMLA', the backdrop may not have much significance.

9. However, considering the similarity of the letter used by the respondent by having the middle 'M' to that of the appellants, we are of the view that some modification with regard to the letters used by the respondent in their mark would satisfy to clear any doubt. Hence, the respondent's application for registering their trade mark 'AIMLA' is ordered with a direction to the respondent to use all the 5 letters in equal size by reducing the size of the letter 'M' in the label to that of the other letters. The respondent is to take immediate action by filing the necessary request before the Trade Marks Registry to amend their mark as directed above.

10. With the above direction, the appeal is disposed of. No order as to costs.