(Original Side Appeals preferred against the common order dated 26.04.2005 made in Original Application Nos.904 and 905 of 2004 in C.S. No.862 of 2004, on the file of this Court.)

P. Sathasivam, J.

1. By consent of both parties, appeal themselves are taken for final disposal.

2. Aggrieved by the common order dated 26.04.2005 made in Original Application Nos.904 and 905 of 2004 in C.S.No.862 of 2004, dismissing both the said applications, M/s. Devi Pesticides Private Ltd., Madurai has filed the above appeals.

3. Plaintiff in C.S.No.862 of 2004 is the appellant in the above appeals. The plaintiff filed the said suit against the respondent/defendant, M/s. Shiv Agro Chemicals Industries, Baroda, Gujarat State for,

(a) Perpetual injunction restraining the defendant by himself/themselves, their men, servants, agents, distributors, stockiest, representatives, partners, directors or any of them from in any manner infringing the plaintiffs registered trademark BOOM PLUS by use of the trademark SUPER BOOM or any other mark similar to plaintiffs registered trademark;

(b) Perpetual injunction restraining the defendant by himself/themselves, their men, servants, agents, distributors, stockiest, representatives, partners directors or any of them from in any manner passing off and enabling others to pass off the defendants goods as and for the plaintiffs goods by use of the trademark SUPER BOOM or any other mark deceptively similar to the plaintiffs trademarks BOOM PLUS and BLOOM FLOWER-n in identical colour scheme, layout or in any other manner whatsoever; and for other reliefs.

4. Along with the plaint, the plaintiff also filed Original Application Nos.904 and 905 of 2004, praying for interim injunction restraining the respondent, their men, servants, agents, distributors, stockiest, representatives, partners, directors or any of them from in any manner infringing the applicants registered trademark BOOM PLUS by use of the trademark SUPER BOOM or any other mark similar to applicants registered trademark and also for interim injunction restraining the respondent, their men, servants, agents, distributors, stockiest, representatives, partners, directors or any of them from in any manner passing off and enabling others to pass off the respondents goods and for the applicants goods by use of the trademark SUPER BOOM or any other mark deceptively similar to the applicants trademark BOOM PLUS and BOOM FLOWER-n in identical colour scheme, layout or in any other manner whatsoever.

5. The case of the appellant is briefly stated hereunder:

According to the plaintiff, they are manufacturers of fertilizers and flowering stimulants and are in business since 1985 and started manufacture and trade under the Trademark BOOM PLUS since 1987 and the said Trademark has also been registered in class 1 under Trademark No.473179 on 05.06.1987. The trademark is being renewed periodically. In addition to this trademark, there are other 4 trademarks, which are also registered, and all of them have been considered and associate trademarks of BOOM PLUS. They have been marking the goods and spending huge sum on advertisements and the consumers come to identify the products of BOOM from their house. Their sales are substantial, viz., 100 lakhs per year. During July, 2004, it is come to their knowledge, the respondent has been marking fertilizers and flowering stimulants under the trademark SUPER BOOM and immediately caused a legal notice on 23.07.2004 and again on 07.09.2004. The respondent had filed a suit under Section 142 of Trademarks Act, 1999 before the District Court, Vadodara, Gujarat and the same is pending and there is no interim order. The products are pesticides, fertilizers and other agents the channel of marking is also the same and the needy consumers are illiterate agriculturists who would not be able to distinguish between the marks BOOM PLUS, BOOM FLOWER-n and SUPER BOOM one would always believe that the same would originate from the same source. The petitioners are the owner of registered trademark since 1987, entitled to practice their property and they cannot allow others to infringe their trademark by using deceptively similar marks.

6. The respondent filed a common counter affidavit disputing the claim of the applicant. It is their case that Shiv Agro Chemicals Industries are manufacturing and selling all types of fertilizers, bio fertilizers, bio stimulants, organic manures etc. They acquired good will and reputation by their own products for more than 20 years in and outside Gujarat. The applicants claim regarding their so-called BOOM PLUS, BOOM FLOWER-n are not distinctive, they are absolutely commonly placed. The words used by the applicants in marks are being used by many people since several years as it is merely adjective. The word BOOM is purely a dictionary word used very widely in language, which is merely customary in common language. It never gets attached to the goods as a mark. It is not an imitation of the applicants trademark BOOM PLUS and BOOM FLOWER-n. It is true that the respondent is using the trademark SUPER BOOM, but it is not an imitation of the applicants trademarks BOOM PLUS and BOOM FLOWER-n. The use of the trademark SUPER BOOM by the respondent does not amount to infringement of the applicants registered trademarks. The respondent has been dealing with the product under trademark SUPER BOOM for the past several months.

7. Learned single Judge, by the impugned common order dated 26.04.2005, after finding that there can be no confusion in the minds of the purchasers with regard to trademark, design, appearance, label, etc. are totally different, dismissed the injection applications. Aggrieved by the same, the present appeals have been filed by the applicant/plaintiff.

8. Heard Mr. K. Rajasekaran, learned counsel for the appellant and Mr. G. Jawaharlal, learned counsel for respondent.

9. The points for consideration in these appeals are:

(i) Whether the applicant/appellant has made out a prima facie and strong case for grant of injunction as claimed and

(ii) Whether the learned Judge is right in dismissing the injunction applications

10. The applicant/appellant are manufacturers of fertilizers and flowering stimulants and according to them they are in the business since 1985 and started manufacturing and trading under the trademark of BOOM PLUS since 1987. The same marks have been registered in Clause 1 under Trademark No.473179 on 05.06.1987. It is also their claim that the trademark is being renewed periodically and in addition to this trademark, they are other 4 marks, which are also registered and all of them have been considered as associate trademark BOOM PLUS. The registration of trademark BOOM PLUS from 05.06.1987 was published in Trademark Journal. The said document is available at page 1 of the typed set of papers. Page 2 of the typed set of paper is the Trademark Registration Certificate of BOOM PLUS No.473179 in Clause 1. The other documents issued by Trademark Registry, Government of India, which are available from pages 9 to 14 show that the Trademark No.473179 is being renewed periodically and the renewal, is being advertised in the Trademark Journal No.1253. All the documents contain Trademark Number as well as the name of the applicant, viz., M/s. Devi Pesticides Pvt., Ltd., Madurai 625 001, Tamil Nadu.

11. It is also brought to our notice that though originally the proprietor of the said trademark was M/s. Devi Pesticides, a partnership firm, by deed of assignment dated 05.03.2004, the proprietorship of the said registered trademark BOOM PLUS was assigned to the plaintiff, which is a private limited. It is also the claim of the applicant that the other trademark of the plaintiff is BOOM FLOWER-n. No doubt, the same is yet to be registered and according to the applicant it is pending with the registering authority. It is also their claim that they spent a sum of Rs.20,178.99 for the financial year 19 99-2000 towards advertisement expenses; Rs.33,930.00 for 2000-2001; Rs.2,09,767.00 for 2001-2002 and Rs.1,09,089 for the year 2002-2003.

12. On the other hand, it is not in dispute that the respondent/defendants trademark SUPER BOOM is an unregistered mark and admittedly they are using the mark SUPER BOOM for the product of flowering agent. In para 26 of the common counter affidavit filed on behalf of the respondent in O.A.Nos.904 and 905 of 2004, it is admitted that,

“The respondent has been dealing with the product under trademark SUPER BOOM for the past several months. As rightly pointed out though the respondents are in the habit of prefixing the word SUPER for all their products, no material was produced to prove that they are prior user or advertisement or sales expenditure of their product.”

13. Learned counsel for the applicant contended that respondent/defendants trademark SUPER BOOM is phonetically similar and identical to that of the plaintiffs trademark BOOM PLUS and BOOM FLOWER-n and has resulted in causing confusion in the minds of its customers who are agriculturists. It is also their claim that the classes of purchasers who are likely to buy the products are mostly the agriculturists. In this regard, learned counsel for the applicant heavily relied on a decision of the Apex Court reported in Cadila Health Care Ltd. Vs. Cadila Pharamaceuticals Ltd., (AIR 2001 S.C. 1952), considering phonetic similarity the Hon’ble Supreme Court has concluded,

“19. With respect, we are unable to agree that the principle of phonetic similarity has to be jettisoned when the manner in which the competing words are written is different and the conclusion so arrived at is clearly contrary to the binding precedent of the court in Amritdhara’s case (AIR 1963 SC 449 [LQ/SC/1962/200] ) where the phonetic similarity was applied by judging the two competing marks. Similarly, in Durga Dutt Sharma’s case (AIR 1965 SC 980 [LQ/SC/1964/275] ), it was observed that in an action for infringement, the plaintiff must, no doubt, make out that the use of the defendants mark is likely to deceive, but where the similarity between the plaintiffs and the defendants mark is so close either visually. Phonetically or otherwise and the Court reaches the conclusion that there is limitation, no further evidence is required to establish that the plaintiffs rights are violated. It is well settled principle of law that any action for infringement and pass off where the similarity between the plaintiff and defendants trademark is so close either visually, phonetically or otherwise and the court reaches the conclusion that there is imitation, no further evidence is required to establish that the plaintiffs rights are violated. This is clear from the above decision.”

14. Coming to prior user, it is not in dispute that the plaintiff is using the trademark BOOM PLUS from 1987. Document Nos.1 and 2 filed along with the plaint support the above claim. On the other hand, the defendant is user of the trademark only for few months (admitted in counter in para 26). It is clear that the plaintiff is the prior user of the trademark and the respondent ha s not proved that they are prior to the applicant in the market. Moreover, both are manufacturing and selling the same product.

15. It is the grievance of the applicant that the respondent has adopted a deceptively similar trademark SUPER BOOM deliberately to pass off its sub-standard and inferior quality fertilizers and flowering stimulants as and for the goods of the plaintiff. It is also their grievance that the respondent imitative spurious fertilizers and flowering stimulants would be sold in the same shop across the same counters and to the same class of purchasers, an ordinary average person cannot make out the difference between the plaintiffs goods and the defendants goods. In such circumstances, according to the applicants their sales and goodwill has been adversely affected owing to the wrongful activities of the respondent.

16. A perusal of the order of the learned Judge shows that both the applications, viz., O.A.Nos.904 and 905 of 2004 filed for interim injunction have been dismissed, solely on the ground that the petitioners trademark are not usually similarly to that of respondents trademark. We have already pointed out that it is settled principle of law that phonetic similarity would constitute infringement of trademark. In this regard, it is also useful to refer Section 29(5) of the Trademarks Act.

“A registered Trade Mark is infringed by a person if he uses such registered Trade Mark as his Trade name, or part of his Trade name or name of his business concern or part of the name of his business concern dealing in goods or services in respect of which the mark is registered.”

The above provision makes it clear that even part of the registered Trademark is used, it would amount to infringement.

17. We are satisfied that the applicant has made out that it is a clear case of infringement of their Trademark BOOM PLUS by the respondent by using their Trade mark SUPER BOOM. We are also satisfied that the respondent has committed an act of passing off their goods as that of applicant by using their Trademark SUPER BOOM, which is deceptively similar and identical to the plaintiffs trademark BOOM PLUS. In Laxmikant V. Patel vs. Chetanbhai Shah (2002 (3) SCC 65 [LQ/SC/2001/2807] ), the Hon’ble Supreme Court makes it clear that a refusal of grant of injunction in spite of availability of facts which are prima facie established by acceptable evidence and material available on record justifying the grant thereof, occasion a failure of justice and such injury to the plaintiff would not be capable of being undone at a later stage. As pointed out, since the grant of interlocutory injunction to the plaintiff could not have been refused, it becomes obligatory on the part of this Court to interfere.

18. We have already held that the respondent has not produced any evidence before this Court of their usage except last few months. On the other hand, the applicant being the owner of the registered trademark since 1987, have to practice their property and they cannot allow others to infringe their registered trademark by using deceptively similar marking. By using phonetically similar mark and marking the unwary of consumers to believe that the product of the respondent originates from that of the applicant and thus committed an act of passing off infringement of trademark.

19. From the materials placed, we are satisfied that the applicants have prima facie case in their favour, the needy users are illiterate farmers and common man, who eats the fruits and vegetables and whose interest has to be taken care of by this Court. The applicant being a prior user of the trademark since 1987, we are satisfied that if respondent is injuncted from use of applicants mark, no prejudice would be caused to them. On the other hand, if they are not so injuncted, irreparable loss and injury will be caused to the applicant. We are also satisfied that balance of convenience is in favour of the applicant. The learned Judge failed to consider the similarities in the marks and the resemblance in the phonetic, visual and the basic idea represented in the registered mark and the infringed mark. Further, the learned Judge failed to note that the design, appearance, label, etc. of the products are similar and as erroneously come to the conclusion that the word BOOM is a common word and the applicant cannot have coined the word. As rightly pointed out the registered trademark of the applicant since 1987 of the same word BOOM cannot be allowed to be used/infringed by others by just prefixing SUPER for marketing their products as that of the applicant. Under these circumstances, the common order dated 26.04.2005 made in O.A.Nos.904 and 905 of 2004 in C.S.No.862 of 2004 is set aside and there shall be an order of injunction as claimed in both the applications till the disposal for the suit. Both the Original Side Appeals are allowed. No costs. It is made clear that the above conclusion of us is only prima facie, for the disposal of the injunction applications.