Rajiv Narain Raina, J. - (1.) THIS petition arises out of a suit for trademark infringement M/s. Nikit Chem, Ludhiana manufactures multipurpose adhesives and holds a registered trademark for its products known in the market as "Nikit's American Bond". The trademark registration authority has registered this trademark on 1st July, 2007. It is claimed that the trademark enjoys great reputation in the market and its product is very popular. M/s. K.V. Associates Private Limited, a competitor has emerged in Ludhiana which is the defendant in the original suit brought on 30th September, 2013 at Ludhiana. It also makes multipurpose adhesives. It has started selling its products under the name "Radon Aferican Bond". This company is not a trademark holder of its brand name but has applied for trademark registration before the competent authority. Along with the suit, an application was filed under Order 39 Rule 1 & 2 of the C.P.C. seeking interim relief during the pendency of the suit for restraining the defendants from selling their products in the market under the aforesaid name which is deceptively similar to their registered trademark and of unlawfully passing off the products to the detriment of the plaintiff. Notice of the suit was given to the defendants. They appeared and have contested the case. They prayed for denial of a temporary injunction and rejection of the application and the suit. They revealed in their reply that they had applied for a trademark through an application dated 18th September, 2013 in the name and style "Radon Aferican Bond". They claimed that there is a world of a difference between the two trade names in their designs and the words used on the wrappers in which the two products are sold. It is pleaded that the wrappers of the plaintiff are of Brown yellow mixed colour with different photographs whereas the colour of the wrappers of the plaintiff is yellow.
(2.) THE learned Additional District Judge, Ludhiana being the trial court under the trade mark law, vide his order dated 12th February, 2014 has granted temporary injunction in favour of the plaintiff, the respondents in this petition. The reason for denial when paraphrased is twofold; one, that the plaintiffs possessed a registration certificate dated 12th March, 2010 issued under the Trademarks Act, 1999 protecting its product named "Nikit's American Bond". The other reason given is that the word "Aferican" resembles the word "American" and a customer visiting the market might think the products are from the same source. The trial Judge opines that Nikit and Radon are distinguishable but this distinction can be detected by 'applying mind'. What the learned Trial Court means is that two products look alike. Though he does not use the words passing off anywhere in the judgment but what he really means is of passing off an action. The law on trademarks is settled that even an unregistered owner of an trademark or brand name can bring forth a suit on principles of passing off and the defendant can be injuncted from selling a product which can pass of as a product of the plaintiff. In the present case, the plaintiff is the trademark holder. The defendant is a trademark seeker. At several places in the impugned order dated 12th February, 2014, the word "African" has been used. African is name of a country and is a proper noun. However, the product of the petitioner is cleverly put spelt "Aferican" bond. There is a wide difference between the words "Aferican" and "African". The arrangement of letters a -f -e -r -i -c -a -n is a trick and together do not constitute a word with meaning and if it were a word it is not found in the English dictionary or in any spoken language.
(3.) THE trial Judge has granted temporary injunction in favour of the plaintiff and has restrained the defendant from using the trademark in selling the product till the disposal of the suit. Against this order, the present petition has been filed by the defendant.;