TMI Blog2006 (4) TMI 547X X X X Extracts X X X X X X X X Extracts X X X X ..... the plaintiff's registered trademark BOOM PLUS by use of the trademark SUPER BOOM or any other mark similar to plaintiff's registered trademark; (b)Perpetual injunction restraining the defendant by himself/ themselves, their men, servants, agents, distributors, stockiest, representatives, partners directors or any of them from in any manner passing off and enabling others to pass off the defendant's goods as and for the plaintiff's goods by use of the trademark SUPER BOOM or any other mark deceptively similar to the plaintiff's trademarks BOOM PLUS and BLOOM FLOWER-n in identical colour scheme, layout or in any other manner whatsoever; and for other reliefs. 4. Along with the plaint, the plaintiff also filed Original Application Nos. 904 and 905 of 2004, praying for interim injunction restraining the respondent, their men, servants, agents, distributors, stockiest, representatives, partners, directors or any of them from in any manner infringing the applicant's registered trademark BOOM PLUS by use of the trademark SUPER BOOM or any other mark similar to applicant's registered trademark and also for interim injunction restraining the respondent, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ill and reputation by their own products for more than 20 years in and outside Gujarat. The applicant's claim regarding their so-called BOOM PLUS, BOOM FLOWER-n are not distinctive, they are absolutely commonly placed. The words used by the applicant's in marks are being used by many people since several years as it is merely adjective. The word BOOM is purely a dictionary word used very widely in language, which is merely customary in common language. It never gets attached to the goods as a mark. It is not an imitation of the applicant's trademark BOOM PLUS and BOOM FLOWER-n. It is true that the respondent is using the trademark SUPER BOOM, but it is not an imitation of the applicant's trademarks BOOM PLUS and BOOM FLOWER-n. The use of the trademark SUPER BOOM by the respondent does not amount to infringement of the applicant's registered trademarks. The respondent has been dealing with the product under trademark SUPER BOOM for the past several months. 7. Learned single Judge, by the impugned common order dated 26.04.2005, after finding that there can be no confusion in the minds of the purchasers with regard to trademark, design, appearance, label, etc. a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es; ₹ 33,930.00 for 2000-2001; ₹ 2,09,767.00 for 2001-2002 and ₹ 1,09,089 for the year 2002-2003. 12. On the other hand, it is not in dispute that the respondent / defendant's trademark SUPER BOOM is an unregistered mark and admittedly they are using the mark SUPER BOOM for the product of flowering agent. In para 26 of the common counter affidavit filed on behalf of the respondent in O.A. Nos. 904 and 905 of 2004, it is admitted that, The respondent has been dealing with the product under trademark SUPER BOOM for the past several months. As rightly pointed out though the respondents are in the habit of prefixing the word SUPER for all their products, no material was produced to prove that they are prior user or advertisement or sales expenditure of their product. 13. Learned counsel for the applicant contended that respondent/ defendant's trademark SUPER BOOM is phonetically similar and identical to that of the plaintiff's trademark BOOM PLUS and BOOM FLOWER-n and has resulted in causing confusion in the minds of its customers who are agriculturists. It is also their claim that the classes of purchasers who are likely to buy the products ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mitative spurious fertilizers and flowering stimulants would be sold in the same shop across the same counters and to the same class of purchasers, an ordinary average person cannot make out the difference between the plaintiffs goods and the defendant's goods. In such circumstances, according to the applicants their sales and goodwill has been adversely affected owing to the wrongful activities of the respondent. 16. A perusal of the order of the learned Judge shows that both the applications, viz., O.A. Nos. 904 and 905 of 2004 filed for interim injunction have been dismissed, solely on the ground that the petitioner's trademark are not usually similarly to that of respondents trademark. We have already pointed out that it is settled principle of law that phonetic similarity would constitute infringement of trademark. In this regard, it is also useful to refer Section 29(5) of the Trademarks Act. A registered Trade Mark is infringed by a person if he uses such registered Trade Mark as his Trade name, or part of his Trade name or name of his business concern or part of the name of his business concern dealing in goods or services in respect of which the mark is regis ..... X X X X Extracts X X X X X X X X Extracts X X X X
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