KAMAL KUMAR HIRAWAT v. MARUTI POLY FILMS AND ORS

In the above background, the petitioner was compelled to file the instant suit seeking a decree for perpetual injunction and other consequential reliefs. Upon filing of the suit, the petitioner also filed an interlocutory application seeking interim reliefs. By an ad interim order dated 5th July, 2024, a Co- ordinate Bench had passed restraint orders insofar as the respondents are concerned. Thereafter, the interim application being GA-COM/1/2024 was disposed of by confirming the interim order dated 5th July, 2024. The respondents have also chosen not to file any Written Statement. In such circumstances, the petitioner prays for a relief under Order XIIIA of the Code of Civil Procedure, 1908. It is submitted on behalf of the petitioner that the defendants have no intention of defending the suit. The respondents have neither filed their Vakalatnama nor their Written Statements and have deliberately chosen to remain unrepresented. Upon an examination of the facts and circumstances, it is evident that the respondents have deliberately adopted a deceptively similar trademark “Fitter” to derive illegal gain at the cost of the reputation and goodwill attached 4 to the mark “Fighter” which belongs to the petitioner. Both the goods are similar in nature and are sold through the same trade channels to the same class of customers. In such circumstances, there is every likelihood of confusion and deception amongst the members of the public. It is also obvious that the defendants are not seriously in defending this proceeding. A summary judgment can be passed at any stage of proceedings if the Court finds that the defendant has no real intent of defending the claim. There is no requirement nor necessity of oral evidence being led and the suit should be disposed of by way of a summary judgment as prayed for in the suit. In such circumstances, reference may be had to the following decisions: Make My Trip (India) (P) Ltd. v. Owners httpswww.makemytripmood.com : 2022 SCC OnLine Del 4105, paras. 24 to 26, 28 to 30, 32], Sun Parma v. Mylan Laboratories : 2023 SCC OnLine Del 4661 : (2024) 98 PTC 157, paras. 10 to 12, 16, 17, Sandisk LLC v. Amit & Ors. : 2023 SCC OnLine Del 2060, paras. 6, 12 to 19 and Syrma Technology Pvt. Ltd. vs. Powerwave Technologies Sweden Ad. It is a well settled law that resemblance between two marks ought to be assessed both visually and phonetically i.e., by reference to the eye as well as the ear. A comparison of the two marks would make it evident that both are phonetically similar. There is every likelihood of third parties being deceived. In deciding such questions, the Court should approach such issues from the viewpoint of a man of average intelligence and imperfect recollection. Ordinarily, the beginning of a word is often the most crucial for assessing phonetic similarity and likelihood of confusion. However, in this case, the overall 5 structural and phonetic similarity between the two marks are deceptively identical and likely to cause confusion and deception. In view of the above, the plaintiff has been able to demonstrate a strong case in its favour. The balance of convenience and irreparable injury is also in favour of orders being passed as prayed for therein. In such circumstances, there shall be an order in terms of prayers (a) to (d) of the plaint. The defendants are also directed to take necessary steps for delivery up and cancellation of all cash memos, bills, challans, invoices, vouchers etc. bearing the impugned mark “Fitter” or any mark which is identical or deceptively similar to the same. With the above directions, GA-COM/3/2025 stands disposed of. In view of the above, nothing survives in the application, IP- COM/15/2024 stands decreed in the above terms. Let a decree be drawn up accordingly in terms of the above. (RAVI KRISHAN KAPUR, J.) SK./S.Bag