Bombay HC Rubbishes Contention That Appearance Of Respondent's Details Among Search Results Infringed/Prejudiced Appellants' Trademark

As per Justice Chavan's Order, the Counsel for the appellants had averred,

"when there is a google search, trade name of the respondent also scrolls down along with that of the appellants."

This would definitely affect not only the reputation and business of the appellants but also it would affect the goodwill earned by the appellants by passage of time, he added.

This submission did not find favour with the Single Bench of Justice Prithviraj K. Chavan, who, while recording a finding that the trademarks in question were quite dissimilar, stated,

"..even the Website of the appellants and that of the respondent are quite different and, therefore, contention of the learned Counsel for the appellants that if one scrolls the google, an impression is gathered that the respondent's trademark is that of the appellants' one is without any substance."

As per Justice Chavan's Order, the Counsel for the appellants had averred,

"when there is a google search, trade name of the respondent also scrolls down along with that of the appellants."

This would definitely affect not only the reputation and business of the appellants but also it would affect the goodwill earned by the appellants by passage of time, he added.

The appeal was moved by one Sharmilee Kapur, owner of trademark "atmantan-be transformed", who had conferred an exclusive right to the use of the mark to Sparsh Infratechech. Sparsh Infratech ran a luxury wellness center under the trademark at Mulshi, near Pune.

Sharmilee and Sparsh Infratech filed a trademark infringement suit against one Kiran Bharekar, proprietor of trademark "TanMan", who operated an Ayurvedic Treatment and Research Center about 30 km away from the atmantan-be-transformed spa.

The appellants contended that the name 'TanMan' was deceptively similar and almost identical to their name 'Atmantan-be-transformed'. It was contended that the respondent's trade name was a rearrangement of the appellant's trademark, likely to cause confusion to the public.

Opposing these submissions, the respondents asserted that no material was brought to the attention of the Court to show that there was any instance of the public being deceived.

Apart from this, the respondents asserted that they were proprietors of their mark, operated in a different field of service, and that there was no visual, phonetic or other similarity between the two marks.

Reiterating the legal position on trademark infringement, the Court said,

"..what is required to be considered is as to whether the person who alleged to have infringed the mark uses in his course of trade a mark which is identical with or deceptively similar to the trademark in relation to any goods in respect of which the trademark is registered. The term "deceptively similar" means a mark which so nearly resembles another mark as likely to deceive or cause confusion.

It was again stated,

"For that, broad and essential features are to be considered, meaning thereby, they should not be placed side by side to find out if there are any differences in the design, and if so, whether they are of such character as to prevent one design from being mistaken for the other. If the impugned mark bears such an overall similarity to the registered mark as would be likely to mislead a person usually dealing with one to accept the other if offered to him.

Comparing the two marks, the Court held that there was no similarity between the marks, either phonetically or visually.

"No sane man would say that there is infringement on the part of the respondent in respect of words "TanMan" and "atmantan be transformed" as they are neither similar nor identical when the two are compared", the Court emphatically stated.

With the observation that the case was devoid of merits, the appeal was dismissed.

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