Madras High Court
M/S. D.R.Raanka Bros vs Om Prakash on 23 February, 2021
O.S.A.Nos.122 & 125 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 23.02.2021
CORAM :
THE HON'BLE MR.SANJIB BANERJEE, CHIEF JUSTICE
AND
THE HON'BLE MR.JUSTICE SENTHILKUMAR RAMAMOORTHY
O.S.A.Nos.122 & 125 of 2020
M/s. D.R.Raanka Bros.
Door No.151, 1st Floor, NSC Bose Road
Chennai 600 079
rep. by its Partner Appellant in
Kapil Ranka ... both OSAs.
Vs.
Om Prakash ... Respondent in
both OSAs.
Prayer: Appeals filed under Order XXXVI, Rule 1 of O.S. Rules, read
with Section 15 of Letters Patent, against the common order dated
17.12.2019 made in O.A.Nos.703 & 702 of 2019 respectively, in
C.S.No.444 of 2019.
For Appellant : Mr.Rajesh Ramanathan
For Respondent : Mr.A.K.Rajaram
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O.S.A.Nos.122 & 125 of 2020
JUDGMENT
(Delivered by the Hon'ble Chief Justice)
The appeals are directed against a common interlocutory order
passed in a suit for infringement and passing-off.
2. The plaintiff-appellant has the device mark registered which
has "DR" written on top in a particular style and "D.R.Raanka Bros."
written below in a stylised manner. However, it is the device as a
whole, that is the plaintiff's trade mark. The plaintiff also enjoys the
registration of a word mark "DR" and a further registration in
"D.R.Raanka Bros."
3. The plaintiff is in the business of the sale of precious metal
and jewellery. The plaintiff carries on business through a partnership
firm bearing the name of D.R.Raanka Bros. and it is the device which
incorporates the plaintiff's name and two word marks which
incorporate the plaintiff's name in part and full, respectively.
4. There is no doubt that the defendant is in similar business.
The defendant has been using the mark D.R.R in connection with
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O.S.A.Nos.122 & 125 of 2020
several other words, mostly in Tamil script, though the letters D.R.R
stand out in the advertisements and other material used by the
defendant in connection with its products.
5. According to the plaintiff, the adoption of D.R.R or D.R with
some other variation on the part of the defendant is dishonest, as
those letters have nothing to do with the defendant's business or its
product and the real intention is to trade on the goodwill of the
plaintiff's market and filch the business of the plaintiff.
6. By the judgment and order impugned dated December 17,
2019, the learned Single Judge found that there was a distinction
between the manner of use of the plaintiff's mark and the defendant's
mark. The learned Single Judge did not agree with the plaintiff that the
letters “D.R.R” stood out from the material used by the defendant in
connection with the sale of its products and noticed that the other
words used were in comparable size though in different fonts. On an
overall impression, it does not immediately hit that the defendant's use
of the letters “D.R.R” bring about any association with the plaintiff's
“DR” or “D.R.Raanka Bros.” marks or the device mark.
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O.S.A.Nos.122 & 125 of 2020
7. When it comes to an interlocutory injunction, there is a
considerable discretion which is at large. Once it is evident that the
appropriate considerations were taken into account to apply the
correct tests, the appellate Court would scarcely interfere with the
relevant order if an element of discretion has been exercised one way
or the other. In the present case, the discretion has been exercised
against the plaintiff on the visual appreciation of the mark used by the
defendant and the several marks over which the plaintiff enjoys
exclusive ownership. However, it cannot be said that the exercise of
such discretion shocks the conscience of the appellate Court or is
perverse or contrary to established principles in this branch of law.
8. In fine, since the use of very mark of the defendant
complained against does not appear to be similar or a copy of the
plaintiff's mark, at least at the interlocutory stage, the injunction
sought has been declined. There is no doubt that the plaintiff will have
a better chance to establish the plaintiff's case in course of the trial
and the matter will be looked into uninfluenced by the interlocutory
order.
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O.S.A.Nos.122 & 125 of 2020
9. O.S.A.Nos.122 and 125 of 2020 are disposed of without
interfering with the judgment and order impugned dated December 17,
2019 and by leaving the parties free to have the trial conducted at the
earliest. Documents should be discovered by the parties within the
next ten weeks; inspection completed forthwith thereupon and a
prayer may be made before the trial Court for listing the matter for
trial at the earliest convenience of such Bench.
There will be no order as to costs. As a consequence, CMP
Nos.5927, 5930, 5977 and 5979 of 2020 are closed.
(S.B., CJ.) (S.K.R., J.)
23.02.2021
Index : No
kpl
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O.S.A.Nos.122 & 125 of 2020
THE HON'BLE CHIEF JUSTICE
AND
SENTHILKUMAR RAMAMOORTHY, J.
kpl
O.S.A.Nos.122 & 125 of 2020
23.02.2021
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