R.P. Locks Co. Vs. Sehgal Locks Co. and ors. - Court Judgment

Excerpt:
- - they are similar both phonetically as well as visually. the act of infringement of the trade mark is, thereforee, clearly illegal and the continued user by the defendants is certainly likely to adversely affect the business and the reputation of the plaintiff.b.n. kirpal, j.(1) this order will dispose of the application under order 39 rules i and 2 filed by the plaintiff where the prayer is for the grant of a temporary injunction pending disposal of the suit.(2) the plaintiff is admittedly the owner of the registered trade mark harrison. this trade mark is used in respect of locks manufactured by the plaintiff. the registration was .granted to the plaintiff on 27th april, 1960. the case of the plaintiff is that it has a large turn over and the defendants have now started manufacturing and selling locks under the trade name and style of hartcon. this, according to the plaintiff, amounts to infringement of the plaintiff's trade mark.(3) along with the suit. an application under order 39 rules i and 2 was also sled for the grant of interim injunction and an ex parte injunction was granted on 27th november, 1987. an application was also filed under order 26 pursuant to which a local commissioner was appointed who took possession of the locks/padlocks bearing the name hartcon and the said locks have now been handed over by the local commissioner to the plaintiff on superdari.(4) in the reply and the written statement which have been filed by the defendants has been stated that the word hartcon has been imbibed 'after the redcon (red triangle) device of family planning'. from this, it is alleged that the user of the said mark by the defendants is honest.(5) it is also the case of the defendant that it has been manufacturing and selling the locks for the last four years and the plaintiff knew about the same and that the plaintiff having acquiesced to the sale cannot ask for an injunction. it is also contended by the learned counsel for the defendant that the two marks are not identical. it is submitted that whereas the plaintiff is using the trade mark harrison and on the locks it is stated that it is made by r. p. locks co., the defendants are using the mark haricon and it is stated on the locks itself that it is manufactured by defendant no. 1.(6) under section 28 of the trade marks act, the registered proprietor of a trade mark has the exclusive right to use the trade mark in relation to the goods in respect of which the trade mark is registered. he has also the right to obtain relief in respect of the infringement of the trade mark in the manner provided by the act. section 29 of the act, inter alia, provides that a trade mark is infringed if a person shall use in the course of a trade mark which is identical with or deceptively similar to trade mark in relation to which any goods in respect of the trade mark is registered and in such manner as to render the use of the mark likely to be taken as being used as a trade mark. in the present case, there is no doubt in my mind that the marks harrison and haricon are deceptively similar. they are similar both phonetically as well as visually. it is not unknown that the letter 'c' is at times pronounced as 'see' as in 'piece'. what the defendants have done is that it has substituted the letter 's' with the letter 'c' and has used one 'p.' instead of .two. it is, however, not disputed that the shape of the locks manufactured by the plaintiff and the defendants is similar. there is considerable force in the contention of the learned counsel for the plaintiff that on unwary customer is likely to be mistaken or misled by the mark haricon as being the mark of the plaintiff.(7) the trade mark which is registered in the present case is harrison. the fact that the defendants also indicate on the lock that the same is manufactured by sehgal locks co. does not mean that there is no infringement of the plaintiff's trade mark. the indication of the name of the manufacturer on the goods may be a relevant circumstance in a case of passing off action but in a case of infringement of a trade mark it is to my mind, of no consequence. what has to be compared in the case of infringement of a trade mark are the two marks which arc used by the parties. the two marks are harrison and haricon. as i have already indicated above, the two marks appear to be visually and phonetically similar and, to my mind, is a clear attempt by the defendants to try and cash in on the reputation of the plaintiffs.(8) the defendants have sought to give an explanationn as to how it has used the word haricon. the explanationn is that this word is derived from redcon (red triangle). i have not been able to understand as to how the word haricon has any resemblance with red triangle or how is it such that the red triangle used for propagating a family planning has anything to do with the manufacture of locks. the explanationn, on the face of it, is far fetched and noval.(9) with regard to acquiescence, according to the plaintiff: it has got to know about the sale of the locks only in 1987. that apart, acquiescence may be a relevant circumstance which is to be taken into consideration in deciding when damages are to be awarded. sections 28 and 29, read together, give an absolute right to the owner of the trade mark to the exclusive use of the said mark and prohibits anyone else from infringing the same. the act of infringement of the trade mark is, thereforee, clearly illegal and the continued user by the defendants is certainly likely to adversely affect the business and the reputation of the plaintiff. under section 106 of the trade marks act, one of the reliefs which can be granted to the holder of the trade mark. whose right is being infringed, is that of an injunction. once the court prima facie come? to the conclusion that the mark of the defendant is, on the face of it, deceptively similar to that of the plaintiff then it would be in the interest of all that interim injunction should be graned. it is to be borne in mind that deceptively similar marks are use so that the informer is able to mislead the general public and try and pass off its goods as being the genuine goods. the interim injunction which is granted under these circurnsfances, when there is a apparent infringement of the trade mark, not only protects the interest of the holder of the trade mark but also protect the general public, who are. more often than not, led to buy spurious goods in place of genuine ones. when a court, thereforee, comes to a conclusion that there is a deliberate attempt to pass off one's goods as that of another then he court should grant the injunction prayed for.(10) for the aforesaid reasons, the interim injunction is made absolute.(11) counsel turn the defendant states that the value of the goods belonging to the defendant which are now lying with the plaintiff on superdari is about rs. 25,000 to rs. 50,000. i, thereforee, direct that the plaintiffs shall, within one month from today, furnish to the satisfaction of the registrar of this court security for a sum of rs. 50,000. if the security is not furnished, the interim injunction shall stand automatically vacated. all the i. as. are accordingly disposed of.