Title: Sopariwala Exports & Ors. Versus Ashraf V
Citation: CS(COMM) 259/2021
Decided on: 09.10.2023
Coram: Hon’ble Mr. Justice C. Hari Shankar
Introduction:
The current matter in hand is regarding the use of trademark AFZAL, Sopariwala Exports has the right to iuse the trademark as well as through trademark agreement license to use the trademark was given to other 3 others. Defendant on the other hand is using the mark AFSAL in kerala without obtaining the trademark registration.
Facts:
The plaint alleges that the defendant has infringed the plaintiffs’ registered trademarks as well as its copyright registration and is also, by using a deceptively similar trademark and a deceptively trade dress, seeking to pass off its product as the product of the plaintiffs. As the product is chewing tobacco, it is submitted that additional vigilance is required to be exercised in order to ensure that such attempts at infringement do not go unchecked.
The defendant is using the mark AFSALs and it is are phonetically nearly identical to the mark of the plaintiff, that is AFZAL. And it is added that It has to be remembered that the aspect of confusing or deceptive similarity has to be viewed from the perception of the consumer of average intelligence and imperfect recollection.
The visual similarity between the rival marks in the present case, coupled with the phonetic similarity between “Afzal” and “Afsals”, especially when viewed from the perspective of a consumer of chewing tobacco, clearly discloses the intent of the defendant to adopt the mark which is, phonetically as well as visually, as alike to the plaintiffs’ mark as possible.
Court’s Judgment and Analysis:
Court passed a decree of permanent injunction restraining defendant as well as all others acting on its behalf from using the trademark “AFSALs” or any marke similar to plantiff’s. The defendant shall also be restrained from adopting any trade dress which is deceptively similar and which would, therefore, infringe the copyright held by the plaintiffs in the aforesaid trade dress.
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Written by: Sushant Kumar Sharma
