Content Provider | Supreme Court of India |
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e-ISSN | 30484839 |
Language | English |
Access Restriction | NDLI |
Subject Keyword | Trade and Merchandise Marks |
Content Type | Text |
Resource Type | Law Judgement |
Jurisdiction | India |
Case Type | Appeal |
Court | Supreme Court of India |
Disposal Nature | Appeal Dismissed |
Headnote | Trade and Merchandise Marks Act, 1958: Section 106-Trademark matters-Temporary injunction-Grant or refusal of-Factors to be considered-Held: Apart from balance of convenience it is necessary to consider the comparative strength of the case of the rival parties before granting, or refuse to grant, temporary injunction-Code of Civil Procedure, 1908, O.39 R.1. Sections 2(1) (d). 29, 105 and 106-Trademark-Infringement of- Temporary injunction-Grant of-Tests to determine-Essential features-Copying of-Burden of proof-Held: Onus to prove 'deception' is on the plaintiff-Sound of words forming a part of or the whole of the mark has to be considered-But when device marks a~e compared or when a device mark is compared with a word mark the considerations would differ-However, in the case of devices and composite marks dissimilarities in essential features assume importance-The mark must always be considered as the whole thing and the test is whether the totality of impression given both orally and visually is such that it is likely to cause mistake, deception or confusion- In the circumstances of the case, on an examination of relative strength, there is dissimilarity in essential features between the plaintiff's and defendant's marks and chances are more for the defendant to succeed-Hence plaintiff not entitled to temporary injunction. Section 105 and 106-Infringement and passing off- Difference between-Suits for-Held: On the same facts a suit for passing off may fail a suit for infringement may succeed. Passing off-Goods-Defendant's name on-Effect of-Held: ls an indication that there is no passing off.Passing off-Suit for-Deceiving of buyer-Scope of-Held: Court is not expected to consider the confusion created due to the ignorance of the buyer-The buyer is expected to know the distinguishing characteristics of the goods he purchases. Sections 2(1)(d) and 29-Trademark-Infringement of - "Deceptively similar"-"Deceive" and "confusion" -Difference between-Held: If essential features are copied the intention to deceive or cause confusion is not relevant in an infringement action.Words and Phrases: "Deceptively similar", "deceive" and "confusion"-Meaning of- In the context of S.2(1)(d) of the Trade and Merchandise Marks Act, 1958. |
Judge | Hon'ble Mr. Justice M. Jagannadha Rao |
Neutral Citation | 2000 INSC 312 |
Petitioner | S.m. Dyechem Ltd. |
Respondent | Cadbury (india) Ltd. |
SCR | [2000] Supp. (1) S.C.R. 86 |
Judgement Date | 2000-05-09 |
Case Number | 3341 |
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