J And P Coats And Anr. vs Popular Thread Mills And Anr.
1995 Latest Caselaw 925 Del

JUDGMENT

Jaspal Singh, J.

(1) The suit is for passing off and Along with it is an application under Order 39 rules 1 & 2 of the Code of Civil Procedure. This order is its fallout.

(2) The learned counsel for the plaintiff is confining his prayer only to the use of the word 'MOOR', and its lettering, get up and design. His grievance is that it is deceptively similar to plaintiff's "MOON".

(3) The defendant objects to the grant of any interim relief on the ground that plaintiff's trade mark is not yet registered. The objection has no substance. I say so because the suit is for passing off and admittedly user of the mark by the plaintiff is prior in matter of time.

(4) The defendant has yet another objection. He states that `MOON' is distinctive and that for that reason the plaintiff deserves no interim relief. In support he relies upon M/s. Surya Coconut Oil Industries v. M/s. Surya Agro-Oils Ltd. an order of a learned Single Judge of this Court in I.A.No.3022/89 in Suit No.1094/89. The date of decision is May 6, 1994. In that the plaintiff's trade mark was 'Sun' while the defendant was using the trade mark 'Surya'. It was observed that 'Surya' being the Hindi name of 'Sun' and 'Sun' being the centre of the solar system and having existed for a "long long time" and so also 'Surya', consequently, no injunction could be granted with respect to the word 'Surya'. I feel this order is of no help to the defendant. It is not that the defendant is also using the word 'MOON' or its Hindi equivalent. The word used is 'MOOR' which is as different from 'MOON' as cheese is from chalk. In any case, the perusal of the order would go to show that my learned brother was also swayed by the fact that the differences between the two contesting trade marks were visible to the naked eye. It is not so in the present case. I have looked at the design, the lettering and the get up of 'MOON' and so also of 'MOOR' not once but repeatedly and despite my tired eyes I could discern no difference except, of course, in the spelling relating to only one out of the four letters and that too concerning the last one which is so placed that it can stump any one not warned earlier. Surely, any reasonable person including of course an unwary customer, would get confused.

(5) For what has been recorded by me above, I pass an ad interim order restraining the defendant from using the word 'MOON' in the manner it has done till today and this, Of course, would include the style of its lettering, its colour scheme and general get-up However, I may hasten to add that nothing said in this order shall be read as an expression of opinion on the merits of the case. 15-11-1995 Put up on 12th March, 1996 for framing of issues.