Kamal Kant & Company LLP  v.  Raashee Fragrances India Pvt. Ltd.

Kamal Kant & Company LLP  v.  Raashee Fragrances India Pvt. Ltd.

CS(OS) No.1471/2015

4th November, 2015

Plaintiff was a registered proprietor of the trade mark ‘RAJSHREE’ for  pan masala, supari, betel nuts, zarda mix, mouth freshener etc. Plaintiff filed a suit against the Defendant who was using the mark ‘RAASHEE’ for infringement of trade mark, passing off and other incidental and ancillary relief. The Plaintiff was able to secure an ex-parte order against the Defendant. As a result of which, the Defendant was restrained from using the mark ‘RAASHEE’ as a trade mark on its products.

This decision is on the application for interim relief that was filed by the Plaintiff against the Defendant as well as on Defendant’s application for vacation of ex-.parte order already granted in favour of the Plaintiff.

Plaintiff’s Case:

• Plaintiff is the registered proprietor of the mark ‘RAJSHREE’;
• The goods of the Plaintiff and the Defendant are identical;
• The competing marks ‘RAJSHREE’ and ‘RAASHEE’ are deceptively similar

Defendant’s Case:

• There is no deceptive similarity between the trade marks and consequently no likelihood of confusion’
• The two word marks/trade marks of the respective parties are used in Hindi and the words are different when used in Hindi, and this aspect has to be taken with who are the customers who would purchase the goods being pan masala etc. in question, and on so doing there will not arise any confusion or deception between the two trade marks;
• The packaging of the goods to which these marks are applied are entirely different;
• There is a vast difference in Hindi language between the meaning of the word RAJSHREE of the Plaintiff and RAASHEE of the Defendant and when the trade marks are seen with respect to the meaning, this Court should hold that there is no deceptive similarity or any scope for confusion.
• The suit of the Plaintiff suffers from delay, laches and acquiescence as the Defendant is in the market since the year 2009.0
• Defendant is bonafide adopter of the mark ‘RAASHEE’

Issue:

Whether, the marks RAJSHREE of the Plaintiff as compared to the RAASHEE of the Defendant are deceptively similarity.

Court’s observations:

The labels were compared. However the Court has to decide the issue of deceptive similarity only with respect to the word mark RAJSHREE registered in favour of the Plaintiff.

RAASHEE is confusingly & deceptively similar to the registered trade mark RAJSHREE of the Plaintiff. When we speak the word RAJSHREE, it is found that when the same in Hindi is spoken, on innumerable number of occasions, because of the placement of the Hindi alphabet JA, its usage becomes on many occasions silent when the word RAJSHREE is spoken because of the stronger alphabets RA and SHREE with its vowels before and after the Hindi alphabet JA. There is a tendency especially while speaking the word RAJSHREE hurriedly or in an unclear manner for the alphabet JA in Hindi to become silent on such occasions and which is not unnatural in the class of customers who will purchase the goods in question. The aspect of JA being silent will be a routine when the word RASHEE is spoken in the Hindi dialect unless customers take great care in specifically pronouncing the whole word RAJSHREE. This aspect has to be also considered both for infringement and passing off actions because as stated above the consumers are the same for the products of both the parties and it is not as if there will be consciousness which will be given by customers to ensure that the alphabet JA in Hindi will be spoken out with emphasis as is given to the two Hindi alphabets of RA and SHREE, when speaking the entire word RAJSHREE. Similar rationale applies to the alphabet R in RAJSHREE.

The mode and manner of selling of the product is relevant and it is seen that actually the selling of products of both the parties, i.e pan masala, mouth freshener, zarda etc. would be through small shops which sell betel leaves, cigarettes and small confectionary items.

The explanation given by the Defendant of adopting the word mark RAASHEE on account of the Managing Director of the Defendant having seen it in the film ‘What’s Your Raashee’ does not inspire the confidence in this Court.

No doubt, the meaning of the word RAASHEE or Sun sign/zodiac has a different meaning than the word RAJSHREE in Hindi, however, the trade mark/word mark RAJSHREE and RAASHEE in usage are phonetically and visually similar and the trade mark/word mark of the Defendant is deceptively similar and confusingly similar to the registered trade mark RAJSHREE of the Plaintiff.

Defendant, currently is not manufacturing goods under the trade mark RAASHEE and possibly which is from many years inasmuch as the written statement is deliberately silent as to since when the Defendant stopped manufacturing goods under the trade mark RAASHEE.

Once the trade mark of the Plaintiff is registered, there will not arise any issue of delay in filing of the suit because at best for the period of delay, Plaintiff will not be entitled to damages but so far as the subsequent period is concerned, the Defendant has no right to infringe the registered trade mark of the Plaintiff and also pass off its goods as that of the Plaintiff.

Interim injunction, till the pendency of the suit, was granted in favour of the Plaintiff.