Goel Pocket Books v. Raja Pocket Books
1997(17) PTC 573 (Del)
Respondent was the proprietor of the mark ‘NAGRAJ’ and was using the same for comic books as a lead character. Appellant also launched it’s comic books with the character and mark ‘NAGPUTRA’. Respondent filed a suit against the Appellant before the Court of District Judge, Delhi for passing off against the Appellant on the ground that the two marks are deceptively similar. Appellant was restrained by the District Judge to use the mark ‘NAGPUTRA’ during the pendency of the suit. Aggrieved by the said order, Appellant filed the present appeal before the Hon’ble High Court of Delhi.
• The trade mark ‘NAGRAJ’ consists of two descriptive words ‘Nag’ and ‘Raj’. They are of common use. Hence the Respondent cannot claim any monopoly on the use of the said words.
• The trade mark ‘NAGPUTRA’ is distinct and different from mark ‘NAGRAJ’.
• They are written in different style and colour and are as such different from each other in every respect.
• The Appellant has been publishing their comic series since June, 1991 under the trade mark ‘NAGPUTRA’.
• The comic series cater to the taste of the affluent and literate class of children who are quite intelligent and are capable of making distinction in the two marks.
• Thus there is absolutely no reason, as to how and why comic series under the name and style of ‘NAGPUTRA’ would be taken as comic series from the source of the Respondent.
• The words ‘NAGRAJ’ and ‘NAGPUTRA’ are almost the same. They convey the same meaning. Whereas the word ‘NAGRAJ’ means a king of snakes, the word ‘NAGPUTRA’ on the other hand, which is the combination of two Hindi words i.e. ‘Nag’ and ‘putra’ means the son of a snake.
• The main word which is being relied upon by the Respondent to sell his comics is the word ‘Nag’. Thus if the same is allowed to be used by the Appellant to sell his comics then the unwary purchasers of the said comics would buy the comics sold under the mark ‘NAGPUTRA’ to be that of the Respondent.
• This is more so in the instant case, as purchasers of the comics are none else but the children of tender age.
• Respondent have been using the said trade mark since the year 1986.
• It has thus become distinctive and has acquired a secondary meaning on account of the continuous user and people have come to associate the publication of the Respondent with the said trade mark.
• The sales of the Respondent under the said trade mark are to the tune of Rs. 50 lacs.
• Appellant adopted the impugned trade mark ‘NAGPUTRA’ since the year 1991.
• It is thus prima fade established that the Respondent is a prior user.
• There is a common word ‘Nag’ in the two trade names, the word ‘NAGRAJ’ means the king of snakes whereas the word ‘NAGPUTRA’, on the other hand, means the son of a snake. The common word in between the two is ‘Nag’ which is likely to convey the impression that the books belonging to the Appellant are coming from the same source i.e. of the Respondent.
• This is more likely to happen in the instant case inasmuch as the purchasers of the said comics are none else but the unwary and credulous children of tender age. It is well known that the judgments of the children are immature. They are not patient as a grown-up man to analyze and scrutinise the goods before opting for the purchase of the same.
• It is true that we can make distinction between a literate child and an illiterate child. However, a child is after all a child and there cannot be any dispute with regard to the fact that the judgment of a child is not right and mature enough. He is thus likely to be misled.
The Appeal was dismissed.