FACTS:
Plaintiff a registered proprietary of Trade mark “LAKME” in respect of soap, perfumery, cosmetic and toilet preparations.The word “LAKME” is registered under the Trade and Merchandise Marks Acts, 1958 as a trade mark for various goods.
The plaintiff has also been incurring huge expenses in the sale promotion and advertisement in relation to the trade mark “LAKME” on account of which the people in general associate any product or service bearing the word “LAKME” exclusively with the products of plaintiff. Plaintiff has also been using the mark “Designer” since January, 1988 along-with a device. In or about 3rd week of January, 1992 the plaintiff came to know that the defendants No. 1 & 2 had introduced into the market a nail enamel under the trade mark “LAKSME” and Coco Sweety Designer. The defendant No. 3 is the dealer of defendants 1 & 2 who is also selling nail enamel under the trade mark “LIKE ME” and the mark Designer which are identical and/or deceptively similar to the trade mark of the plaintiff. The plaintiff has alleged that by use of the trade mark “LAKSME” or “LIKE ME” in respect of the nail enamel the defendants are infringing the trade mark of the plaintiff and also infringing the rights of the plaintiff to their mark Designer.Hence plaintiff has instituted the present suit praying for grant of temporary injection restraining the defendants, their servants and agents from manufacturing, selling, offering, for sale, advertising directly or indirectly by using the trade mark “LAKME” or “LIKE ME”.
ISSUE:
Whether defendants trade mark is deceptively similar to plaintiff’s trade mark?
Whether there is any of passing off caused by defendant?
LAWS INVOLVED
1)Sec 2(1)(h) of trade mark Act: A mark shall be deemed to be deceptively similar to another mark if it so nearly resembles that other mark to be likely to deceive or cause confusion.
2)Section 12 of the Act: Prohibits registration of identical or deceptively similar trade mark when it states that no trade mark shall be registered in respect of any goods or description of goods which is identical with or deceptively similar to a trade mark which is already registered in the name of a proprietor in respect of the same goods or description of goods.
3)Section 27 of the Act: No person would be entitled to institute any proceedings to prevent or to recover damages for, the in fragment of an unregistered trade mark, whereas for an action of passing off goods the right of action against any person for passing off goods is not affected as the goods of any other person or the remedies in respect thereof.
DEFENDANT’S CONTENTION:
It was contended that the trade “LIKE ME” of the defendants, its get up design, colour scheme and overall appearance is different from the trade mark of the plaintiff and there cannot be any passing off. It is further stated that the defendant was not using the trade mark “LAKSME” and Sweety ‘Designer.
JUDGMENT:
Court held that there was striking resemblance between the two words. The two words are also phonetically similar. There is every possibility of deception and confusion being caused in the mind of the prospective buyer of the plaintiff ’s products and granted the permanent injunction restraining the defendants, their servants and agents from manufacturing, selling, offering, for sale, advertising directly or indirectly by using the trade mark “LAKME” or “LIKE ME”.
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