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This Product is Licensed to Mr. V. Ponnusamy, Advocate, Karur

Citation :- CDJ 1997 SC 1265

Court : Supreme

Court of India of 1997

Case No : C.A. Nos. 241-243 Judges: HON'BLE Parties : Tube

JUSTICE M. JAGANNADHA RAO AND HON'BLE JUSTICE (MRS.) SUJATA V. MANOHAR

Investments of India Limited Versus Trade Industries, Rajasthan

Appearing Advocates : For Date of Judgment : 02-05-1997 Head Note :-

COMPARATIVE CITATIONS: 1997 (S) ARBLR 171, 1997 (6) SCC 35, 1997 (17) PTC 655
Judgment :-

SUJATA V. MANOHAR, J. The appellants are well-known manufacturers of bicycles and bicycle parts. As per the counter-affidavit of the respondent, the total sales of the appellants for the years 1993-94 were to the tune of Rs. 41, 715.10 lakhs and their expenditure on advertisements alone for the year was Rs. 384.31 lakhs. The appellants have a registered trade mark bearing their initials TI in two concentric circles. It is registered in the year 1972 and the registration is still in force. The trade mark is registered for goods in Class 12 for bicycles and its parts and fittings including free wheel clutches for land vehicles, hubs, saddles, rims, tyres, tubes, stands for cycles, saddle carriers for cycles, gears for cycles, bells for cycles and pumps for cycles - all these goods being included in Class 12 2. The respondent is a small manufacturer. He set up his business in the year 1976 in Jodhpur and his sales for the year 1995-96 were amounting to Rs. 12, 50, 717 and his expenditure on advertisements for that year was Rs. 71, 000/-. The respondents uses a mark TI in a circle in all his goods. The respondent manufactures saddle covers on which he uses this mark. An examination of the mark used by the respondent with the registered mark of the appellants shows that the mark used by the respondent is prima facie similar to the mark used by the appellants. In the respondent's mark also 'T' is a capital. 'T' and 'I' is a capital 'I' and is shorter and placed below 'T'. The respondent contends that he uses only one circle around his mark instead of two concentric circles. However, this small difference does not make much impact on the obvious similarity between the two marks. The visual similarity between the two marks coupled with the fact that the respondent's mark is used on bicycle saddle covers, prima facie posed a real danger that the product of the respondent can be passed off as a product of the appellants. Use of the mark by the respondent on goods falling in Class 12 is, prima facie, violative of the appellant's rights in respect of their registered trade mark for goods in Class 12 3. The respondent has relied upon the decision of this Court in Vishnudas Trading v. Vazir Sultan Tobacco Co. Ltd. 1996 PTC 512). This decision deals with rectification of registration of a trade mark and has no bearing on the question before us. The respondent has also cited the decision of the Calcutta High Court in Gopal Hosiery v. Dy. Registrar of Trade Marks 1981 AIR(Cal) 53) which also has no bearing on the question before us 4. In fact, the respondent had applied for registration at Delhi of his mark in the year 1984 in respect of goods in Class 18 which deals with leather and leather goods. The appellants had filed their opposition to registration. Ultimately in 1991, the respondent withdrew his application. He has filed another application for registration of the same mark for the same category of goods in Ahmedabad which application is pending 5. In the above circumstances, looking to the fact that the appellants are registered holders of their mark which is specifically registered for bicycle parts, and in the circumstances set out above, this is a fit case for grant of interim injunction restraining the
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respondent from using his mark for any items manufactured by him for use in connection with bicycles or falling in Class 12. It is ordered accordingly. The appeals are allowed. The impugned order of the High Court is set aside. No costs Appeals allowed.
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