1993 PLP 605 (MLD)

SAEEDUZZAMAN SIDDIQUI, J.‑‑‑The respondent who is the registered proprietor of Trade Mark "Flair" in respect of products falling under classes 3 and 5 filed Suit No.643 of 1989 against the appellant alleging infringement of his above mark. Alongwith the suit the respondent also filed an application for grant of a temporary injunction during the pendency of the suit to restrain the appellant from infringing his above mark or any other mark similar or identical to the above mark on his products and thug passing off his goods as that of the respondent. The learned Judge in Chamber after hearing the warned counsel for the parties and upon examination of the material on the record reached the conclusion that the registered mark of the respondent "Flair" is similar both phonetically and visually to the mark "Flare" used by the defendant on his product and accordingly granted the interim injunction restraining the defendant from using the above mark on its cosmetic products. The learned counsel for the appellant firstly contended that the respondent failed to show that they were actually selling/marketing any product under their registered Trade Mark "Flair", and as such in the absence of proof of actual user of the mark by the respondent the learned Judge in Chamber could not grant the interim injunction against the appellant. The second contention of the learned counsel for appellant is that the learned Judge in Chamber, in the impugned order relied upon Exh. P5 which was neither filed with the plaint nor with the application under Order 39, Rules I and 2, C.P.C. but was submitted later on alongwith an application under Order 12, Rule 6, C.P.C. which is still pending decision before the Court and as such this document could not be considered or taken into account while deciding the application under Order 39, Rules 1 and 2, C.P.C. The third contention of the learned counsel for the appellant is that in any case after receiving the legal notice from the respondent and before filing of the suit the appellant had added the word "French" before the word "Flare" and as such the use of mark "Flare" with a prefix of "French" distinguished the two marks and as such it could not be said that the use of mark "French Flare" amounted to infringement of trade mark of petitioner "Flair". The contentions of the learned counsel for the appellant did not impress us. The learned Single Judge in Chamber after considering the material on record reached the conclusion that there is phonetic as well as visual similarity in the two marks namely, "Flair" and "Flare" which prima facie appears to be correct and no exception could be taken to it. The learned counsel for the appellant however, contended that the document Exh. P5 which was not filed either with the plaint or with the rejoinder affidavit could not be considered by the learned Single Judge while considering application under Order 39, Rules 1 and 2, C.P.C. This contention of the learned counsel even if accepted could hardly affect the decision of learned Judge in Chamber on merits as the temporary injunction in the case was granted on the ground of similarity of two marks both phonetically and visually and not solely on the basis of document P.5. The conclusion of the learned Single Judge appears to be correct as the words `Flair' and `Flare' when spoken or written bear close similarity. The last contention of the learned counsel for the appellant is that the appellant had added the word `French' before the word `Flare' and as such the two marks become dissimilar. This contention has been dealt with at length by the learned fudge in Chamber in the impugned order and the learned Judge in support of his conclusion referred to the case of Ruston & Hornby Ltd. v. Z. Engineering Co. AIR 1970 SC 1649. In our view, the learned Single Judge in granting the interim relief to the plaintiff, has not overlooked or violated any principle of law. No case for interference is made out. The appeal is dismissed summarily with no order as to costs. H.B.T./M‑1693/K Appeal dismissed.