Gujarat High Court
Piruz Khambatta Thro Poa Zubin ... vs Deputy Registrar Of Trademarks on 4 December, 2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL APPEAL NO. 18 of 2023
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2023
In R/CIVIL APPEAL NO. 18 of 2023
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PIRUZ KHAMBATTA THRO POA ZUBIN KHAMBHATTA
Versus
DEPUTY REGISTRAR OF TRADEMARKS
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Appearance:
MR DEVANG NANAVATI, SENIOR ADVOCATE with MR JATIN Y
TRIVEDI(2616) for the Petitioner(s) No. 1
for the Respondent(s) No. 1
MR AKSHAY A VAKIL(5473) for the Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE NIRAL R. MEHTA
Date : 04/12/2023
ORAL ORDER
1. This Civil Appeal under Section 91 of the Trade Marks
Act, 1999 (for short 'the Act') has arisen from the order dated
12.7.2023 passed by the Assistant Registrar of Trade Marks in
Trademark Opposition No.AMD/250912 to TM Application
No.1392122 in Class 32 for trade mark/label 'RASANAND'.
2. A label mark consisting of words 'RASANAND', the real
flavor of India with device of leaf was sought to be registered
by the respondent herein vide Application No.139213 in Class
32 on 18.10.2005 in respect of fruit juice, carbonated and
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non-carbonated soft drink and concentrate for preparation for
the same with user claimed since 8.8.2004.
3. After due process, the said application was advertised in
Trademark Journal No.1346-0 dated 16.6.2006 and was made
available to public on 29.8.2006. Pursuant to the same, on
28.12.2006, the appellant herein has filed a notice of
opposition objecting to the registration of the impugned trade
mark mainly based on Sections 9, 11 and 18 of the Act.
According to the appellant, they are one among the leader in
the business of manufacturing a wide variety of food products
since last decades. The appellant is the proprietor of various
well-known trade mark including the trade mark with words
'RAS' including RASNA, RASANA, RUSS, RACHNA, RASME,
RASRAJ, RASIK, ORANJOLT, JUICY, ORCHY, AMRIT, JUC-UP
etc. According to the appellant herein, the trade mark sought
to be registered 'RASANAND' is deceptively similar to various
trade mark of opponent including RAS, RASNA AND RASANA
and thereby, use of the said impugned trade mark by the
respondent herein would lead to immense confusion amongst
the purchasing public and the trade.
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4. The respondent herein filed the counter statement on
9.10.2017 stating, inter-alia, that since the year 2004, they
are manufacturing, marketing and selling the fruit juice,
carbonated and non-carbonated soft drink and adopted the
impugned trade mark in relation to the said goods. Thereafter,
both the parties have submitted evidence in support of their
contentions by way of affidavit. It is pertinent to note that the
respondent herein thereafter filed an application being
Trademark/M on 20.12.2021 requesting, inter-alia, to restrict
their goods to read as 'fruit juice', non-carbonated soft drink.
5. The Assistant Registrar of Trade Mark , having heard
the learned advocates appearing for the respective parties
and having gone through the material produced on record by
way of evidence, vide its order dated 12.7.2023, dismissed the
Trademark Opposition No.AMD/250912 filed by the appellant
and ordered to process TM Application No.1392122 in Class
32 for registration.
6. Being aggrieved and dissatisfied by the aforesaid, the
appellant herein has approached this Court by way of this
Appeal under Section 91 of the Act.
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7. I have heard learned Senior Advocate Mr.Devang
Nanavati assisted by learned advocate Mr.Jatin Trivedi for the
appellant and learned advocate Mr.Akshay Vakil for the
respondent.
8. With the consent of both the learned advocates for the
respective parties, the present Appeal is taken up for final
hearing. Accordingly, learned advocates for the respective
parties have supplied the paper-book of the record and
proceedings of the Registrar of Trade Marks.
9. Learned Senior Advocate Mr.Devang Nanavati for the
appellant, while assailing the impugned order, has made the
following submissions:
(I) Learned Senior Advocate Mr.Devang Nanavati submitted
that the reasoning and conclusion based on observation is ex-
facie erroneous and thereby, the impugned order deserves to
be quashed and set aside. That the findings recorded by the
learned Assistant Registrar inasmuch as the goods of both the
parties are different is against the evidence on record. Thus,
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according to learned Senior Advocate Mr.Devang Nanavati,
the impugned order passed by the Assistant Registrar is not
with proper application of mind and thereby, requires to be
quashed and set aside.
(II) Learned Senior Advocate Mr.Devang Nanavati submitted
that while passing the impugned order, the learned Assistant
Registrar, Trade Marks has completely lost sight from the
provisions of statutes and established proposition of law.
According to learned Senior Advocate Mr.Devang Nanavati,
the learned Assistant Registrar has not properly appreciated
the law of infringement as well as relevant facts on record and
thereby, he requested this Court to quashed and set aside the
impugned order.
(III) Learned Senior Advocate Mr.Devang Nanavati
vehemently submitted that the impugned trade mark is ex-
facie deceptively similar to the trade mark owned by the
present appellant which would most likely to cause confusion
amongst the customers and traders with average intelligence
and imperfect recollection. Thus, according to learned Senior
Advocate Mr.Devang Nanavati, if the impugned mark is
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allowed to be registered, in that event, the same would be in
violation of Section 11(1) of the Act.
(IV) Learned Senior Advocate Mr.Devang Nanavati submitted
that the learned Assistant Registrar has committed an error in
not appreciating the provision of Section 11(2) of the Act.
According to learned Senior Advocate Mr.Devang Nanavati,
the registered trade mark of the present appellant i.e.
'RASNA' is a well-known trade mark in India and thus, in view
of Section 11(2) of the Act, the impugned order directing
registration of trade mark called 'RASANAND' is complete
violation of provision of Section 11(2) of the Act and thereby,
requires to be quashed and set aside.
(V) Learned Senior Advocate Mr.Devang Nanavati submitted
that the learned Assistant Registrar, Trade Marks has not
given due consideration to the provisions of Section 11(8) r/w
Section 11(10) of the Act. According to learned Senior
Advocate Mr.Devang Nanavati, Section 11(10) of the Act is
mandatory for the Registrar to protect well-known Trade
Mark against the identical or similar marks. Learned Senior
Advocate Mr.Devang Nanavati further submitted that
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however, the learned Assistant Registrar has not appreciated
the fact that the Trade Mark ' RASNA' has been determined
as well-known Trade Mark in the market by the Delhi High
Court in the case of Piruz Khambatta v. Soex India Pvt. Ltd.,
the Delhi High Court was pleased to prevent the use of words
'PAN RASNA' and that has resulted into serious miscarriage
of justice.
(VI) So as to substantiate the contentions, learned Senior
Advocate Mr.Devang Nanavati has relied upon the following
decisions;
(1) Amritdhara Pharmach v. Satya Deo Gupta,
reported in AIR 1963 SC 449.
(2) Rupa & Co. Ltd. & Anr. v. Dawn Mills Co. Ltd. & Anr.,
reported in AIR 1998 Guj. 247.
(3) Kabushiki Kaisha Toshiba Trading as Toshiba Corp. v.
Mr.S.K. Sil & Anr., reported in 2011 SCC Online 3128.
(4) Tata SIA Airlines Limited v. Union of India, reported in
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2023 SCC Online Del 3446.
(5) Pidilite Industries Limited v. Jubilant Agri & Consumer
Products Ltd., reported in 2014 SCC Online Bom 50.
(6) Cadila Health Care Ltd. v. Cadila Pharmaceuticals Ltd.,
reported in (2001) 5 SCC 73.
9.1 By making above submissions, learned Senior Advocate
Mr.Devang Nanavati for the appellant requested this Court to
allow the present Appeal by quashing and setting aside the
impugned order passed by the learned Assistant Registrar,
Trade Marks.
10. Per contra, learned advocate Mr.Akshay Vakil for the
respondent, while supporting the impugned order, has made
the following submissions:
(I) Learned advocate Mr.Akshay Vakil has vehemently
opposed the present Appeal contending, inter-alia, that the
impugned order passed by the learned Assistant Registrar,
Trade Marks is perfectly justified and is within four corners of
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law and thereby, does not require any interference by this
Court.
(II) Learned advocate Mr.Akshay Vakil submitted that the
respondent has adopted the Trade Mark 'RASANAND' in
artistic manner which is visually, graphically and phonetically
entirely different from the Trade Mark 'RASNA' of the
appellant and thereby, objection under Sections 9 and 11 of
the Act cannot be maintained. Thus, the impugned order
passed by the learned Assistant Registrar is absolutely legal
and cannot be said to be any perversity therein.
(III) Learned advocate Mr.Akshay Vakil submitted that the
words 'RASNA' and 'RASANAND' are entirely different and
thereby, not capable of creating any confusion and deception
amongst the public. According to learned advocate Mr.Akshay
Vakil, the words 'RASNA' and 'RASANAND' cannot be inter-
changeable. Learned advocate Mr.Akshay Vakil submitted
that the suffix part 'ANAND' creates a different phonetic
sound. He also submitted that visually also, the words
'RASNA' and 'RASANAND' are different and thereby, those
words cannot be said to be identical or similar trade marks.
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Under the circumstances, learned advocate Mr.Akshay Vakil
submitted that the impugned order passed by the learned
Assistant Registrar, Trade Marks cannot be said to be illegal.
(IV) Learned advocate Mr.Akshay Vakil further submitted
that the words 'RASNA' and 'RASANAND' are substantially
different and, therefore, the appellant has never considered
'RASANAND' to be similar to the other Trade Marks i.e.
'RASNA, RASANA, RUSS, RACHNA, RASME, RASRAJ, RASIK,
ORANJOLT, JUICY, ORCHY, AMRIT, JUC-UP' etc. The
appellant has never applied for registration of trade mark for
'RASANAND'.
(V) Learned advocate Mr.Akshay Vakil submitted that the
mark 'RASNA' as claimed to be the well-known trade mark, is
only entitled protection qua the identical and similar mark and
not altogether entirely different mark. Learned advocate
Mr.Akshay Vakil submitted that the mark 'RASNA' and
"RASANAND' both cannot be said to be visually, structurally
and phonetically identical or similar and thereby, according to
learned advocate Mr.Akshay Vakil, the provisions of Section
11(8) r/w Section 11(10) of the Act are not applicable.
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(VI) Learned advocate Mr.Akshay Vakil lastly submitted that
undisputedly, the respondent is using the mark 'RASANAND'
on its product since 8.8.2004 and since then till the matter
was decided by the learned Assistant Registrar, Trade Marks,
the appellant has not produced any single evidence so as to
justify their apprehension that mark 'RASANAND' has ever
created any confusion amongst the customers and the traders.
He further submitted that the appellant has not initiated any
proceedings before the competent civil court with regard to
the injunction of the use of mark 'RASANAND'. Learned
advocate, therefore, submitted that by-now, the product with
mark 'RASANAND' is in market since more than 19 years and
thereby, has gained credential on its own and if the
registration as sought for is not granted, it would amount to
immense loss to the respondent.
(VII) In support of his contentions, learned advocate
Mr.Akshay Vakil has placed reliance upon the following
decisions :
(1) Novartis AG v. Crest Pharma Pvt. Ltd. & Anr., reported
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in 2009 (41) PTC 57 (Del).
(2) Strassenburg Pharmaceuticals Limited v. Himalaya Drug
Company & Anr., reported in 2002 (24) PTC 441 (Cal).
(3) Chanel Ltd. v. Sunder Chemicals Agarbatti Works (P)
Ltd. & Anr., reported in 2003 (6) PTC 52 (Del.).
(4) Chemical Industrial and Pharmaceutical Laboratories
Ltd. v. A. Wulfing & Anr., reported in PTC (Suppl) (1) 205
(Bom).
(5) Cadila Healthcare Ltd. v. Swiss Pharma Pvt. Ltd.,
reported in 2002 (24) PTC 708 (Guj.).
10.1 By making above submissions, learned advocate
Mr.Akshay Vakil requested this Court to dismiss the present
Appeal.
11. I have heard the learned advocates appearing for the
respective parties and have gone through the documentary
evidence produced by way of paper-book by the learned
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advocates appearing for the respective parties. No other and
further submissions have been canvassed by the respective
parties, except what is stated herein-above.
12. Having heard the learned advocates appearing for the
respective parties and having perused the material on record,
a short question that falls for consideration of this Court is
whether the marks "RASNA' and 'RASANAND' can be said to
be deceptively similar and thereby, the learned Assistant
Registrar, Trade Marks has committed any error while
passing the impugned order ?
13. Before I proceed to decide the aforesaid question, in my
view, one thing that has to be kept in mind is that the Act does
not lay down any criteria for determining what is likely to
deceive or cause confusion. Thus, from basic yet important
observations recorded by Parkar,J. in Pianotist Company's
Application reported in (1906) 23 RPC 774 require to be kept
in mind, which can be quoted, thus :
"You must take the two words. You must Judge them, both
by their look and by their sound. You must consider the
goods to which they are to be applied. You must consider
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the nature and kind of customer who would be likely to buy
those goods. In fact you must consider all the surrounding
circumstances and you must further consider what is likely
to happen if each of those trade marks is used in a normal
way as a trade mark for the goods of the respective owners
of the marks"
14. At this stage, it would be apt to have pictorial
comparison of both the products with their marks so as to
have more clarity while adopting the aforesaid test :
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15. Having compared the above two products with their
respective marks, in my considered opinion, both the marks
cannot be said to be deceptively similar. Ex-facie, the marks
are distinct to each other phonetically, graphically, visually
and structurally. The respondent's impugned mark
'RASANAND' cannot be said to be deceptively similar to the
registered mark 'RASNA' of the appellant. While pronouncing
'RASANAND', the same is also not creating any confusion in
the mind of the customers, who actually wanting to buy
product called 'RASNA'.
16. The product mark 'RASANAND' has altogether different
meaning. Basically, 'RASANAND' is a joint of two Gujarati
words which, if separated, can be read as 'RAS' and 'ANAND'
and both have different descriptive meaning. At this stage, it
also requires to be noted that the mark 'RASANAND' has been
created as one joint Gujarati word. But, by way of different
colours, both the words 'RAS' and 'ANAND' are distinguished.
Thus, in my view, the customers and/or traders do not get
confused as both are visually different. Therefore, the mark
'RASANAND' cannot be in any manner said to be deceptive to
the word 'RASNA'. Even the customers with imperfect
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recollection with average intelligence would not be confused
between 'RASNA' and 'RASANAND' as both the marks are
distinctly different to each other.
17. In addition to the aforesaid, if we compare both the
products with their marks, their colour, lable, shape and size
of bottles, everything that may create confusion are
distinctively different. In my view, the customers and/or
traders, those who are intending to buy a specific product
called 'RASNA', would not in any manner be deceived and/or
confused against the impugned mark 'RASANAND'.
18. In the backdrop of the aforesaid discussion, now, I would
deal with the contentions raised by learned Senior Advocate
Mr.Devang Nanavati for the appellant in seriatim :
(I) The main contention of the learned Senior Advocate
Mr.Devang Nanavati for the appellant that the impugned
mark if allowed to be registered, the same would violate the
provision of Section 11 of the Act is concerned, in my opinion,
the provision of Section 11(1) of the Act would only be
applicable in case if the identity of the mark sought to be
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registered with an earlier trade mark is similar in terms of
goods or service and there exists likelihood of confusion on
part of the public. In the instant case, as discussed herein-
above, the impugned mark 'RASANAND' cannot be said to be
identical or deceptively similar as that of mark 'RASNA'. Both
the products and marks are visually, phonetically, graphically
and structurally different and thereby, the confusion amongst
the public is not likely to arise. Under the circumstances, the
contention raised by learned Senior Advocate Mr.Devang
Nanavti is not worth accepting and is accordingly rejected.
(II) So far as the second contention with regard to
application of provision of Section 11(2) of the Act is
concerned, in my view, the said provision is applicable in case
of marks sought to be registered is identical or similar with
the earlier trade mark declared as well-known mark in India.
If the provision of Section 11(2) is read, it appears that the
said provision is enacted to protect registered well-known
mark in India. From the use of later mark which would take
unfair advantage or be detrimental to the distinctive character
or repute of the earlier well-known trade mark. However, in
the instant case, in my view, the mark 'RASANAND' is
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completely different as that of mark 'RASNA'. Pertinently,
admitted, the mark 'RASANAND' is already in market since
the year 2004 and since then till today, the appellant could
not bring on record any evidence so as to suggest that in all
these years, the mark ''RASANAND' has gained unfair
advantage or acted detrimental to the repute of the mark
'RASNA'. Under the circumstances, if the well-known mark is
not in any way prejudicial by the mark sought to be
registered, in that event, the provision of Section 11(2) of the
Act would not come into play and accordingly, the contention
raised by the appellant is rejected.
(III) So far as the contention raised by learned Senior
Advocate Mr.Devang Nanavati with regard to the provision of
Section 11(8) r/w Section 11(10) of the Act is concerned, in
my considered opinion, the provision of Section 11(8) and
application thereof is not relevant. I say so because the
provision of Section 11(8) obliges the Registrar to consider
trade mark as well-known trade mark for registration if the
said trade mark is determined to be well-known in one
relevant section of the public in India by the Registrar. In my
view, here is not a case that the Registrar has refused to
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register well-known trade mark. So far as the provision of
Section 11(10) is concerned, the Registrar is cast with a duty
to protect a well-known trade mark against the identical or
similar trade mark and to take into consideration the bad faith
involved either of the applicant or the opponent affecting the
right relating to the trade mark. The said provision, in my
considered opinion, also not applicable because the trade
mark - 'RASANAND' which is sought to be registered cannot
be said to be identical or similar with trade mark 'RASNA'
claimed to be a well-known trade mark and thereby, the
argument advanced by learned Senior Advocate Mr.Devang
Nanavati with regard to provision of Section 11(8) r/w Section
11(10) of the Act is misconceived being misconception of law
and accordingly, the same is rejected.
(IV) So far as the reliance placed by learned Senior Advocate
Mr.Devang Nanavati for the appellant in case of Amrutdhara
Pharmacy (Supra) is concerned, the Apex Court in the said
case had an occasion to consider overall similarity of two
composite words 'Amrutdhara' and 'Lakshmandhara'. In the
said case, both the names are in use in respect of the same
description of goods i.e. medicinal preparation for the
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alleviation of various ailments and thus, the Apex Court
having observed that both the names structurally and
phonetically similar and thereby, likely to deceive or cause
confusion. However, in the instant case, if both the words
'RASNA' which is a Rose Syrup and 'RASANAND' which is a
Rose Sarbat are compared, such comparison would not lead to
create any confusion between the two products, as both the
marks 'RASNA' and 'RASANAND' are distinctively different
visually, phonetically, structurally and graphically. Under the
circumstances, if the comparison test adopted in the said
judgment of the Apex Court, then it would reveal that both the
words 'RASNA' and 'RASANAND' would not create any
deception and/or confusion amongst the customers and the
traders.
(V) So far as the reliance placed by learned Senior Advocate
Mr.Devang Nanavati for the appellant in case of Rupa & Co.
Ltd. (Supra) is concerned, the dispute therein was about
usage of word 'DON' conjunctively or disjunctively in respect
of hosiery products. While deciding the said case, the Apex
Court has relied upon the judgment in case of K.R. Chinna
Krishna Chettiar v. Sri Ambal & Co. & Anr., reported in AIR
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1970 146, wherein the Apex Court has observed, thus, as
under :
"The resemblance between the two marks must be
considered with reference to the ear as well as the eye and
ocular comparison is not always the decisive test. Therefore,
even if there be no visual resemblance between the two
marks, that does not matter when there is a close affinity of
sound between the words which are distinctive features of
the two marks."
The Apex Court, in the case of Rupa & Co. Ltd. (Supra)
further observed in Para.49 as under :
"Applying the test as aforesaid, the Court came to the
conclusion that : "There is no evidence of actual confusion,
but that might be due to the fact that the appellant's trade is
not of long standing. There is no visual resemblance between
the two marks, but ocular comparison is not always the
decisive test. The resemblance between the two marks must
be considered with reference to the ear as well as the eye.
There is a close affinity of sound between 'Ambal' and
'Andal' .......... The distinguishing feature of the respondents
mark is Ambal while that of the appellant's mark is Andal.
The two words are deceptively similar in sound. The name
Andal does not cease to deceptively similar because it is used
in conjunction with a pictorial device."
Keeping in mind the aforesaid, if the facts of the present
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case are considered, it would appear that the two marks,
namely, 'RASNA' and 'RASANAND' cannot be said to be
visually resembling or even occularly similar. Thus, if the two
marks are considered with reference to the ear as well as eye,
in my considered opinion, the same are not deceptively
similar.
(VI) So far as the reliance placed by learned Senior
Advocate Mr.Devang Nanavati for the appellant in case of
Kabushiki Kaisha Toshiba Trading as Toshiba Group (Supra) is
concerned, the Delhi High Court in the said case had an
occasion to deal with the well-known brand called 'TOSHIBA'.
The original defendant in the said case, who was in the
business of escalator and lift, was offering its product under
the trade mark 'TOSHIBA'. Thus, the owner of the well-known
brand 'TOSHIBA' a company formed in Japan instituted a suit
for injunction against the defendant from manufacturing,
importing, selling, offering for sale or advertising under the
mark 'TOSHIBA'. In the said context, the Delhi High Court
having held that 'TOSHIBA' is a well-known brand in India
and also enjoying the trans border reputation and thereby,
considering the provision of Section 29(4) of the Act, passed
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the decree of injunction as prayed for protecting the well-
known brand 'TOSHIBA'. However, in the instant case, it is
pertinent to note that the case in hand is not for any
injunction or for any other purposes. The present case arises
from the registration of trade mark and thereby, the provision
of Section 11(8) and Section 11(10) are to be kept in mind.
The protection to the well-known brand is to be given in case
if the mark sought to be registered is identical or similar.
However, in the instant case, the mark 'RASNA' as claimed to
be well-known brand cannot be by any stretch of imagination
said to be identical and/or deceptively similar to the mark
'RASANAND' which is sought to be registered. Under the
circumstances, in my considered opinion, allowing
registration of mark 'RASANAND' would not amount to
violation and/or any kind of prejudice to the so called well-
known brand 'RASNA'.
(VII) So far as the reliance placed by learned Senior Advocate
Mr.Devang Nanavati for the appellant in case of Tata SIA
Airlines Limited (Supra) is concerned, in which the Delhi High
Court had an occasion to consider a case Tata SIA Airlines
Limited who sought a writ of mandamus directing the
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respondent therein to consider for inclusion of trade mark
'VISTARA' in the list of well-known trade mark. Considering
the facts of the said case, it appears that the petitioner's
application for inclusion of trade mark 'VISTARA' in the list of
well-known trade mark refused by the Registrar and in that
context, the Delhi High Court, while considering the provision
of Section 11(6), (7) and (8), decide the said case. However, in
my considered opinion, the facts of the case on hand are
entirely different than the facts of the case before the Delhi
High Court. In my view, reliance placed by learned Senior
Advocate Mr.Devang Nanavati on the aforesaid judgment is
thoroughly misconceived as the scope and proceedings of the
case before the Delhi High Court and the case on hand are
entirely different.
(VIII)So far as the reliance placed by learned Senior Advocate
Mr.Devang Nanavati for the appellant in case of Pidilite
Industries Limited (Supra) is concerned, the Bombay High
Court had an occasion to consider the trade mark called
'FAVICOL MARINE' and 'JIVANJOR MARINE PLUS' and the
Bombay High Court having considered the pictorial deception
has held that the defendant therein had copied the plaintiff's
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mark 'MARINE' but even the artistic work comprising the
device of a wooden plank being dipped into the water and the
water splashing. Thus, the Bombay High Court was of the
opinion that the contention of adoption was not honest and
bona fide. In the instant case, if the pictorial depiction of two
marks 'RASNA' and 'RASANAND' are compared, it would
reveal that artistically, phonetically, structurally, visually and
graphically, both the marks are distinctively separate. The
impugned mark 'RASANAND' is a joint Gujarati word,
however, depicted by usage of two different colours with
'RAS' in 'RED' colour and 'ANAND' in 'BLUE' colour. Thus, in
my considered opinion, the facts of the case before the
Bombay High Court are materially different than the facts of
the present case on hand and thus, the same would not be
helpful to the appellant.
(IX) So far as the reliance placed by learned Senior Advocate
Mr.Devang Nanavati for the appellant in case of Cadila
Healthcare Ltd. (Supra) is concerned, the Apex Court had an
occasion to consider the trade mark of drug 'FALCIGO' and
'FALSITAB' used for falcipharum malaria. The said judgment
was delivered by the Apex Court specially in cases relating to
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the medical products. The parameters laid down therein were
with regard to the pharmaceutical and medical products. It is
pertinent to note that the said case had arisen from the
proceedings of civil suit for injunction. Whereas in the instant
case, there is no suit filed by the appellant for injunction. At
this stage, it is also apt to note that in the aforesaid judgment,
the Apex Court while taking note of a decision in the case of
Morgenstern Chemical Company observed that in the field of
medical products, it is particularly important that great care
be taken to prevent any possibility of confusion in the use of
trade marks. Whereas the case on hand is not of a trade mark
relating to any medicinal product. As discussed herein-above,
in the case on hand, both the trade marks are distinct in
nature and not capable of being confused with each other.
19. In view of the aforesaid discussion, in my considered
opinion, the trade marks 'RASNA' and 'RASANAND' cannot be
said to be deceptively similar to each other. Even otherwise,
in all these years, the appellant could not able to bring on
record a single piece of evidence suggesting actual confusion
of customers and/or traders between the marks 'RASNA and
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'RASANAND', though the product 'RASANAND' is co-exist in
the market since now more than 19 years.
I answer the question accordingly.
20. For the foregoing discussion, the present Civil Appeal
fails being bereft of any merits and the same is hereby
dismissed accordingly, with no order as to costs.
21. In view of order passed in main Civil Appeal, Civil
Application does not survive and is disposed of accordingly.
(NIRAL R. MEHTA,J)
V.J. SATWARA
