Suit for Injunction for infringment of Trade Mark - Temporary Injunction - Trial Court Granted restraining the appellant herein from using numbers 2222 on his seed packings till disposal of the suit and dismissed the petition in so far as the relief of restraining the respondent from conducting of Deepika2222 paddy seeds - Their Lordships held that there is a lot of difference between the physical appearance of both the packing of Bags - there is lot of difference between the physical appearance of both the bags - the respondent/plaintiff has not filed any third party affidavits stating that they purchased Deepika2222 of appellants company instead of RS2222 of respondents company mistaking the same and that they have incurred losses of crop, and that not having enough yield of their expectations. - unless prima facie plaintiff proves that there is deceptive alleging infringement, injunction cannot be granted. - the respondent/plaintiff failed to discharge his burden to prove the prima facie case that the trade mark DEEPIK2222 used by the appellant-defendant is deceptively similar to that of the respondents trademark, causing confusion in the minds of average customers and that there is no balance of convenience in favour of the respondent/plaintiff for grant of interim injunction restraining the appellant from using words 2222. The respondent/plaintiff has also failed to make out irreparable injury that has been caused to it by the use of trade mark 2222 of the appellant. Therefore, the order passed by the Court below in I.A.No.147 of 2013 in O.S.No.46 of 2013 dated 25.08.2014 is set aside to the extent of restraining the appellant from using words 2222. - 2015 Telangan & A.P. msklawreports

it is clear that there is no dispute that respondent/plaintiff
trademark is registered as RS2222 in respect of paddy and
there is also no dispute that appellant/defendant is marketing
their paddy by using mark Deepika2222.   
The case of the
respondent/plaintiff is that it has incorporated in the year 2002
and started marketing RS2222 paddy from the year 2002 
onwards, whereas Deepika2222 was in research and  
development during the year 2011 when Ex.R5 licence cum  
permission is given by the Central Government and State
Government.  
Thus, appellants Deepika2222 has come subsequently to RS2222.  
 As per Trade Marks Certificate,
Ex.R3 appellant/defendant was permitted on 20.01.2012 by 
which time respondent/plaintiff already invented, developed and
also marketed RS2222 variety of paddy.    
Ex.P6, is a seed bag
discloses that it is a white colour HDPE bag.  
Moreover, the
petitioner companys logo is in red colour with complete red
colour boarder with super print of RESHMA & COMPANY and    
in white big letters company name was mentioned as Reshma  
with blue background and that behind the respondent/plaintiff
companys logo, rays type design like that of rising sun is found.

Underneath the same typed big letters RS2222 with blue colour
and below the same green colour ripe paddy full photo is found
and that the second side of the bag is in complete green colour
boarder and logo of respondent/plaintiffs company is found.

Underneath the same Reshma is mentioned with big letters with
phone number and underneath the same printed matter  
regarding paddy, manufacturing date, packing date etc., are
found and that beneath the same, the respondent/plaintiff
companys address and customer care number with big letters is
found.

On the other hand, appellant companys Exs.R6 and R7
bag shows that on one side it is with complete green colour print
and on the top it is noted on one side with words Crystal and
another side two swords across each other.
Beneath the same
with red and yellow boarder and all lower portion kept into Lunar
shape design with blue colour with yellow boarder are found.

There are two photos printed right side showing standing paddy
crop and the left side showing ripe paddy crop with chronicle
with many paddy seeds.  At the bottom in red colour Paddy
letters are found.

Beneath the same with yellow boarder in red
colour letters Deepika2222 small letters are printed.    On the
reverse side top is with full green colour letters crystal and
swords emblem is found.
In lower 2/3 portion Deepika2222
with red colour letters are found.  Underneath the same left side
shown paddy, and the right side truthful label describing the
manufacturing date, page number etc., and also the standards of
the seed physical purity, generic purity etc., are found.  
 There is
a red colour warning on white label treated with Poison, do not
use for food, feed and oil purposes is mentioned and side lower
part, appellants company logo and their company address are
printed.
 At the right lower side a warning notice is also found
that the seed is confirmed with minimum standards etc., with
office number Email etc., and that the bag is 10 kgs.
Ex.P11 is
similar bag of the appellant company and the same is a carry bag
which is made with nylon thread and it is a six kgs bag with
similar type of print, but having the company name in brown
colour emblem instead of red colour.
 Therefore, when the two
bags i.e., the bag of the appellant/defendant and the bag of
respondent/plaintiff are compared, there is a lot of difference
between the physical appearance of both the packing.  The trial
Court also considered the evidence and came to the conclusion
that there is lot of difference between the physical appearance of
both the bags.  It is also to be seen that the respondent/plaintiff
has not filed any third party affidavits stating that they
purchased Deepika2222 of appellants company instead of
RS2222 of respondents company mistaking the same and that
they have incurred losses of crop, and that not having enough
yield of their expectations.
 It is also to be seen that the
respondent/plaintiff has not produced the marketing statement,
production and sales statements of appellant company showing
that respondents sales decreased as the appellants are using
words 2222.  
The trial Court also found that the packings are
different, logos are different, but however, the Court below partly
allowed the injunction petition restraining the appellant from
using the words 2222, even though packings are different.


A person tradingwith a particular mark is entitled to insist that no one else should
use that mark for trading in the same and similar commodity.
If
there is any infringement or the mark used by the other is
deceptively similar to his mark in the sense that it nearly
resembles his mark that is likely to deceive or cause confusion,
he undoubtedly can ask the Court to restrain the other to trade
with such deceptively similar mark.
 However, it does not mean
that a person who has a registered trademark can stop all the
others, whose trademark has slightest similarity with his
trademark, from doing business.  

The trial Court basing on the
evidence, rightly came to the conclusion that only on the ground
that RS2222 is the specific trademark of the respondent/plaintiff.
The trial Court merely extracted the
relevant provisions of the Trade Marks Act and extracted some
paragraphs of decisions, and having found that the packing and
logos are different, but erroneously granted injunction restraining
the appellant from using the words 2222. 
 The court below has
also not found that the customers are likely to get confused by
the use of words Deepika2222 for making out strong prima facie
case and it is to be made out for grant of injunction. The
respondent did not produce any material to show that their
business has been adversely affected by the use of the words
Deepika2222 by the appellant, much less have filed any
affidavit stating that by the use of the same, a confusion is
caused in the minds of general public or customers that the
outlets run by the appellant or that of the respondent and
thereby their business was affected adversely.  Since prima facie
case is not established, the question of considering the balance of
convenience and irreparable loss does not arise.  It is open for the
respondent/plaintiff to produce sufficient evidence during the
course of trial for establishing his case.


          For the foregoing reasons, I am of the considered view that
the respondent/plaintiff failed to discharge his burden to prove
the prima facie case that the trade mark DEEPIK2222 used by
the appellant-defendant is deceptively similar to that of the
respondents trademark, causing confusion in the minds of
average customers and that there is no balance of convenience in
favour of the respondent/plaintiff for grant of interim injunction
restraining the appellant from using words 2222.  The
respondent/plaintiff has also failed to make out irreparable
injury that has been caused to it by the use of trade mark 2222
of the appellant.  Therefore, the order passed by the Court below
in I.A.No.147 of 2013 in O.S.No.46 of 2013 dated 25.08.2014 is
set aside to the extent of restraining the appellant from using
words 2222.   However, it is made clear that these observations
are only prima facie findings for deciding this appeal filed against
interlocutory order, as such, same will not be construed as an
expression of this Court. The trial Court may decide the suit on
the basis of evidence adduced by the respondent/plaintiff and
appellant/defendant, without being influenced by the prima facie
findings for deciding this appeal against order in interlocutory
application.
        Accordingly, the Civil Miscellaneous Appeal is allowed.
There shall be no order as to costs.  As a sequel thereto,
miscellaneous petitions, if any, pending in this CMA, shall stand
disposed of.- 2015 Telangan & A.P. msklawreports