Madan Lal Arora v. Soni Udyog and Anr.
1997 (17) PTC 651 (Del)
Plaintiff was sole proprietor of M/s. Calcutta Wire Netting Industries. Plaintiff was in the business of manufacturing and marketing Wire and Wire Nettings under the trade mark ‘TIGER’ with device of ‘TIGER’. Defendant was using the mark ‘LION’ with device of ‘LION’ for identical products. Plaintiff bought an action for passing off against the Defendant.
• Plaintiff is the prior user since 1964 and has tremendous goodwill and reputation in it’s trade mark.
• Defendant No. 1, is manufacturing Wire and Wire Nettings since September, 1995 and has adopted the trade mark ‘LION’ with device of Lion in respect of the said product with a view to take advantage of the reputation of the Plaintiff’s product and to cause deception and confusion in the minds
• Both ‘LION’ & ‘TIGER’ are different names and have no common resemblance, there is no visual or phonetic similarity between the two marks.
• Plaintiff has placed on record various documents from where it appears that he has been continuous user of the trade mark ‘TIGER’ at least from February, 1967.
• As noticed above, it has also placed on record the year wise break-up of its sales, which shows that its sales in the year 1992-93 have been to the tune of Rs. 3.18 crores and in 1993-94 Rs. 2.75 crores, which tends to indicate that the Plaintiff has established a substantial market for its product of wire nettings. Although the Plaintiff has not filed document in support of the contention that its concern has spent substantial amounts on publicizing its product, but the quantum of sales is a safe indicator of the fact that it has acquired good reputation/goodwill in the market, in the use of trade mark ‘TIGER BRAND’.
• It is true that the words ‘TIGER’ and ‘LION’ are not phonetically similar but the test to be applied is whether an unwary and innocent purchaser could be persuaded to purchase the goods of the Defendants as those of the Plaintiff. The wire nettings are mostly purchased by the carpenters, who are barely literate. Both the words, ‘LION’ and ‘TIGER’ are known and called in Hindi, Urdu and Punjabi and perhaps in other local directs as ‘SHER’. When a product with either ‘LION’ or ‘TIGER’S’ picture is shown to a customer, with his normal memory, he is not expected to first ascertain whether another brand depicting picture of ‘LION’ in a different manner is also available and then examine the two brands of goods by keeping them side by side. Taking into account the entire get of the labels, the essential features of the two labels appear to be same.
• To determine whether in the ordinary course of things a person with reasonable apprehension would be deceived or not, the label/trade mark has to be seen in its entirety and not its parts in isolation.
Defendants were restrained from manufacturing, selling or offering for sale or otherwise dealing in wire and wire netting under the trade mark “LION BRAND” with device of LION” till the disposal of the suit.