(1) THIS suit has been filed by the plaintiff claiming to be the owner of trademark Double Dear in respect of its goods. It is stated that the plaintiff has been using the said trademark in distinctive getup, artistic manner, lettering style for its products including rice. The trademark was acquired by the plaintiff from its predecessor M/s Tribeni Floor Mills, Anaj Mandi Rohtak (Haryana) and the trademark was registered with effect from 18th January 1990 vide certificate number 229130 dated 30. 06. 2000. The trademark was subject to territorial limitations i. e. Rice for sale in the states of Tamil Nadu, Kerala, andhra Pradesh, Karnataka and Union Territory of Pondichery. The plaintiff also filed certain applications for registration of trademark double dear in class-

30. It is submitted that the plaintiffs goods and business has acquired tremendous goodwill in the market on the basis of this trademark. The plaintiff has been continuously promoting its trademark through print as well as electronic media. The defendant has adopted the trademark Golden Dear in relation to rice in class-30 and its trademark was identical and deceptively similar with the trademark of the plaintiff. By the impugned adoption, the defendant has infringed the trademark of the plaintiff and was passing off its goods as those of the plaintiff. Defendant has no right to adopt the trademark golden Dear.

(2) IN the written statement, defendant has taken the stand that it was carrying on its business in Gondia, Maharashtra. Defendant has no business activity, dealer or stockist in Delhi and this Court has no territorial jurisdiction. The plaintiff has also no business in Delhi and it has given Delhi address (while its office was in Chennai) just to invoke the jurisdiction of this Court. It is further submitted that the trademark of defendant was altogether different from the trademark of the plaintiff. None of the features of the trademark of the plaintiff were there in the trademark of the defendant. There was no question of passing off since the trademark of defendant was totally different from that of the plaintiff. The substantial part of the mark used by the defendant was golden. The word "deer" was only common and deer is a common property for rice trade and many manufacturers are using this word "deer" to denote vegetarian food.

(3) BY the instant application under Order 39 Rule 1 and 2 CPC the plaintiff has sought interim injunction restraining infringement of its trademark and passing off goods by the defendant as those of plaintiff.

(4) A perusal of the documents filed by the plaintiff would show that the trademark of the plaintiff consists of a figure of two deers facing each other with a flag in between. The figures and flag are enclosed in a white colour semi circle. The base of the packing is yellow and prominent colour of the trademark is red with cooked/uncooked rice shown on the pack. The trademark being used by the defendant is one single deer enclosed in a standing oval shape ring. There is peripheral rim in the ring which is having holes at regular intervals. On both sides of the ring are spikelets. The word "golden deer" is written on the top. Neither the artistic design nor the words nor the colour combination has anything common with the design of the plaintiffs trademark. The figure of deer is also altogether different from that of the plaintiff. While the two deers in the plaintiffs trademark are males with antlers, the deer of defendant is a female only having ears and no antlers. The deers in the plaintiffs trademark are running deers with both front feet bent and rear feet stretched in running condition, the deer in the defendants trademark is a standing deer with one front feet a little raised and bent. The contention of the plaintiff that the defendants trademark is deceptively similar to that of the plaintiff is on the face of it a false and wrong contention. Neither the trademark of the plaintiff was being infringed by defendant. The plaintiff has no prima facie case to contend that the defendant was passing off the goods as that of the plaintiff. There is no similarity between the label of plaintiff and that of the defendant. The learned counsel for plaintiff vehemently argued that the defendant had no right to use the word "golden deer" since the plaintiff was using the word "double deer". He submitted that the rice may be purchased by the illiterate persons and they purchase the same only looking at the figure of deer and they would not go into the nicety of the fact whether there were two deers or one deer and, therefore, use of the word "deer" by the defendant amounted to infringement of the plaintiffs trademark.

(5) THE test to be applied is if the defendant was passing off his goods as those of the plaintiff. It is not the case of the plaintiff that goods of the plaintiff were known by the name of "deer" or by the mark deer alone. It is the plaintiffs own case that its goods are known by mark of "double deer" and two stags with antlers were shown on the mark facing each other, across a flag. The goods bearing the mark of two deers with antlers cannot be confused by the goods having mark of one deer, which is altogether different from that mark of plaintiff. The devise used by the plaintiff along with double deer is materially different from one used by the defendant along with golden deer. There is no likelihood of customers" confusing one deer with two deers and golden deer with double deers, even if the customer is illiterate. There is no similarity between the defendants label and that of plaintiffs label, neither there is visual similarity between defendants name and the plaintiffs name. Any customer of plaintiffs rice would certainly ask for double deer and would not ask for golden deer. Even an illiterate person who can see if there are two deers on the label or there is only one deer on the label. It is not the case of the plaintiff that defendant has tried to present its device in such a manner so as to look similar or deceptively similar with the devise of the plaintiff. Neither the plaintiff has placed on record any material to show that the defendant has attempted to pass off its goods as those of the plaintiff"s. Even the areas of business of plaintiff and defendant are different.

(6) IN view of above facts and circumstances, I find that plaintiff has no prima facie case, neither the balance of convenience lies in favour of the plaintiff. The application is hereby dismissed.