DELHI PRESS PATRA PRAKASHAN LIMITED Vs. DIAMOND POCKET BOOKS PRIVATE LIMITED

JUDGEMENT

(1.) This is an appeal arising from an order passed by the Additional District Judge declining to grant injunction In favour of the plaintiff against the use or display of the title "Grahlokshmi" for a Hindi magazine being published by the defendant on the plaintiffs' plea that the plaintiff is already publishing a magazine under the title 'GRAHSHOBHA' which is also registered under the Trade & Merchandise Marks Act 1958 under Registered Trade Mark No. 387789 in Class 16 in respect of printed publication. It is alleged that the plaintiff has been publishing Grahshobha since January 1988 but the registration of the trade mark was granted to the plaintiff w.e.f. 18th March 1982.

(2.) The argument which is put forward on behalf of the plaintiff is that notwithstanding the lack of phonetic similarity, the adoption of the name Grahlakshmi is intended to trade upon the valuable goodwill of the plaintiff's mark Grahshobha in respect of magazines because the meaning conveyed by the two terms Grahshobha and Grahlakshmi would be the same because in of the Hindi dictionaries the term 'Lakshmi' has been stated to mean Goddess of wealth and it is also stated to be known by the name, inter alia, 'Shobha'. Therefore, the class of people who read such magazines are likely to be deceived since the meaning and idea conveyed by the use of each of the said titles is the same. The argument put forward on behalf of the respondent is that there are other magazines in different regional languages which are being published under the title Grahlakshmi and Grahshobha. It is alleged that the said user of the title Grahlakshmi in diferent regional languages goes back 25 years from now and is prior in time. However, no material has been placed on record to show that the adoption of the mark Grahlakshmi by the Respondent was prior to adoption of the mark Grahshobha. Under Section 2(1)(j) of the Trade & Merchandise Marks Act 1958, the term 'Mark' has been defined as - "mark" includes a device, brand, heading label, ticket, name signature, word, letter or numeral or any combination thereof : and the term 'Trade Mark' has also been defined in Section 2(v) of the said Act as under :-

(3.) In the cases where the trade mark has been registered, the registered proprietor of the trade mark under Section 28 of the Act enjoys exclusive right to use the trade mark in relation to the goods in respect whereof the trade mark is registered subject, however, to such conditions subject whereto the registration was granted. Section 29 of the Act provides that a registered trade mark is infringed by a person who not being the registered proprietor of the trade mark...uses or permits the use of a trade mark which is identical with or deceptively similar to the trade mark in relation to any goods in respect whereof the trade mark Is registered----." In the present case, it would not be necessary to go into the question of passing off or the new development in law of passing of whereby unfair trading even though it does not give rised to deception or confusion or the case of sale of goods under lawful trade description can also be looked into and such activity can be restrained by Courts As already observed above, a mark shall be deemed to be deceptively similar only if it bears such close resemblance with the other mark which is likely to deceive or cause confusion. Such similarity could be on account of similar get up or phonetic similarity in pronouncing the mark or no account of other one or more factors which may or are likely to cause confusion.