Delhi High Court
Mona Aggarwal & Anr. vs Glossy Colour & Paints Pvt. Ltd. & ... on 2 February, 2016
Author: Sanjeev Sachdeva
*IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved on: 19th October, 2015
Judgment Delivered on: 02nd February, 2016
+ FAO(OS) 572/2015 & CM 23119/2015
MONA AGGARWAL & ANR. ..... APPELLANTS
VERSUS
GLOSSY COLOUR & PAINTS PVT. LTD. & ANR. ..... RESPONDENTS
Advocates who appeared in this case:
For the Appellant: Mr Neeraj Grover with Mr Mahir Malhotra and Mr
Shankar Sharma, Advocates.
For the Respondent: Mr Sagar Chandra with Ms Ishani Chandr, Ms
Surabhi Iyer and Mr A. Rastogi, Advocates.
CORAM:
HON'BLE MR. JUSTICE BADAR DURREZ AHMED
HON'BLE MR. JUSTICE SANJEEV SACHDEVA
JUDGMENT
SANJEEV SACHDEVA, J
1. This appeal pertains to a dispute between two rival
trademarks:- "1001" versus "6004".
2. The respondent (plaintiff in the suit) claiming to be the
registered proprietor of the Mark '1001' filed suit for infringement
and passing off against the appellant for using the Mark '6004'. The
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respective marks are used by both the appellant and the respondent on
similar goods like paint, distemper, varnish, etc. The rival
marks/labels in respect of which the suit was filed are as under: -
Plaintiff/Respondent's Trademark
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Defendant/Appellant's Mark
3. The respondent claims to have adopted the Trademark '1001' in
the year 1946 whereas the appellant has adopted the Mark '6004'
since the year 2011.
4. The learned Single Judge by the impugned order has restrained
the appellant from using the impugned label and Mark '6004'. The
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learned Single Judge on comparison of the colour scheme, get-up, lay-
out and arrangement of features used by the appellant, has come to a
prima facie conclusion that the adoption of the impugned label by the
appellant was dishonest and the impugned label is deceptively similar
to the label of the appellant and was likely to confuse the illiterate and
semi-literate purchasers of the goods.
5. Applying the test of a man of average intelligence with
imperfect recollection, the learned Single Judge has prima found that
the impugned mark of the appellant is likely to deceive and confuse
the honest purchaser of average intelligence. The learned Single Judge
has prima facie found that the numeral 6004 having the 'Eye Device'
and distinctive colour combination is similar to the respondent's
product having the mark/number "1001" and 'Eye Device' with
almost similar colour combination, get up and layout.
6. The learned counsel contended that the appellant had not
dishonestly adopted the mark and that the respondents' claim was
disputed but without prejudice was agreeable to changing the same to
avoid protracted litigation. The learned counsel for the appellant, at
the outset, contended that since the appellant had recently adopted the
mark, the appellant was agreeable to change the layout, colour
scheme, get-up of the label in such a manner as to make it completely
distinct from the original label as adopted by the appellant so as to
obviate any confusion or deception.
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7. The appellant during the course of the submission proposed
various changed labels and finally the label herein below was
proposed by the appellant:-
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8. The learned counsel for the respondent contended that though
the label in its layout colour scheme, get-up was prima-facie different
from the label of the respondent, however, it had objections and
reservations to the use of the numeral '6004' in the label. It is
contended that the numeral '6004' would still be deceptively similar
to the registered trade mark '1001' and was likely to confuse.
9. Though there is no quarrel with the proposition that a trademark
can be represented merely by a numeral, however, simply because one
party had adopted a numeral as a trademark for its products, it cannot
be said that no other party can adopt different numerals as part of a
trademark for their similar goods. In such a situation what has to be
seen, is whether the mark taken as a whole i.e. combination of
numeral, colour scheme, get-up, layout are deceptively similar.
10. We have examined the label now proposed by the appellant and
are prima face of the view that the said label as a combination of its
colour scheme, get-up and layout and arrangement of features is prima
facie distinct from the label as used by the respondent.
11. We are prima facie of the view that the label proposed by the
appellant as shown hereinabove would not amount to passing off or
infringement of the registered label or trademark of the respondent.
12. In so far as the impugned order restrains the appellant from
using the impugned label is concerned, we are not interfering with the
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same. However, we modify the impugned order to the extent that the
appellant may use the proposed label with its colour scheme, get-up,
layout and arrangement of features along with the numeral '6004'.
13. The question whether the use of the numeral '6004' per se
would still amount to an infringement is left open to be decided at
trial. The respondent/plaintiff would be required to lead cogent
evidence to establish that the use of the numeral '6004' per se is
deceptive, confusing or misleading to the purchaser of average
intelligence and imperfect collection.
14. The appeal is accordingly disposed of with a direction that the
appellant may use the proposed label and shall not use the label
impugned in the suit or any label or mark deceptively similar to the
label/mark of the respondent. The appellant shall also keep accounts
of all the sales made by the appellant and furnish half-yearly
statements to the court in the form of affidavits of all the sales made
by it in respect of the said goods bearing the above-referred label. The
appeal is accordingly disposed of in the above terms, leaving the
parties to bear their own costs.
SANJEEV SACHDEVA, J.
FEBRUARY 02, 2016/rs BADAR DURREZ AHMED, J.
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