Mayank Jain v. Atulya Discs Pvt Ltd & Ors.

7. The Appellant has assailed the impugned order on the following grounds: -

“I. Appellant is not claiming exclusive right over TIGER and BRAND words per se and has nowhere pleaded the same in the suit/ application.

II. The Act does not expressly place an embargo on monopoly in respect of generic expressions.

TIGER is not publici juris and not common to trade and citing of various marks existing in the Register of Trade Marks or existing outside the Register is not sufficient to establish that Appellant’s registered trade mark is common to the trade within the meaning of this Act.

IV. GOLD and PREMIUM suggest quality of goods associated with the mark and suggest origin from same source and Extension of Appellant’s brand. Any prudent customer with average intelligence would believe that the TIGER PREMIUM BRAND is an extension of TIGER GOLD BRAND which is in market prior to PREMIUM brand.

V. Respondent’s adoption of impugned mark is dishonest, deliberate, intentional and in bad faith which is evident from the fact that the Respondent tried to show that they have been using the mark since March 2021 only based on Udyam Registration date without any documents.

VI. Appellant is the prior user of the TIGER GOLD BRAND trademark since 06.06.2010 whereas the Respondent, which was incorporated in October 2020 started using the mark in October

2024. VII. Main feature of both the marks/logos are, TIGER GOLD BRAND in the case of the Appellant and TIGER PREMIUM Signing BRAND in the case of the Respondent. The visual dissimilarity between the logos cannot come to the aid of the Respondent.

TIGER does not describe the nature of the business or goods of the Appellant and has no direct relation to their trademark and TIGER GOLD BRAND has been coined by the Appellant and has built its reputation over a period of 14.[5] years.

IX. Infringement is not be assessed by placing the rival marks sideby side whereas Ld. Single Judge has bifurcated the Appellant’s mark and compared it with the impugned mark.

X. Overall similarity of the marks of the Appellant and the

Respondent requires an assessment from the perspective of an average consumer with imperfect recollection. The average consumer in the present case are Farmers/villagers.”

7.1. Learned counsel for the Appellant contends that the Respondent’s impugned mark TIGER PREMIUM BRAND suggests that it is the extension of the Appellant’s mark TIGER GOLD BRAND.

7.2. He states that the expression GOLD and PREMIUM suggest quality of goods associated with the mark and origin from the same source.

7.3. He states that the word TIGER has nothing to do with the goods such as agricultural implements and in this sense the use of the word TIGER by the Appellant for the goods is unique thereby distinguishing Appellant’s goods from the goods of the others.

7.4. He states that even though there are other traders who are using the TIGER mark in Class 7, however Appellant’s mark has attained distinctiveness over the period of use since May, 2010.

7.5. He states that a perusal of the register maintained by the Trademark Registry shows that there is only one other registered mark in Class 7 in respect of same goods with the word TIGER, however the said single registration is not sufficient to show that the word TIGER is common to Signing trade.

7.6. He states therefore the conclusion of the learned Single Judge that TIGER mark is common to the trade in publici juris and common to trade is incorrect.

7.7. He reiterates that the Appellant is not claiming any exclusivity in the words TIGER or BRAND.

7.8. He states, however, on a perusal of whole of the mark TIGER PREMIUM BRAND with TIGER GOLD BRAND, he submits there is phonetic similarity.

7.9. He further states that since the Appellant’s mark and the impugned mark are being applied to the same goods, the chances of confusion are higher as the customer who in this case is a farmer(s) is likely to ask for the goods by the name TIGER and given the imperfect recollection of a consumer, he may not immediately recognise the distinction between the labels.

7.10. He admits that the Appellant does not have a wordmark registration for TIGER GOLD BRAND or a separate registration for its mark TIGER or BRAND respectively.

7.11. He relies upon the judgment of the Division Bench in Chacha Saree Bazar Pvt. Ltd. & Anr. v. Chacha Cloth House[1] to contend that, in similar facts, the Court held that the word ‘CHACHA’ though publici juris was not common to the trade and therefore the plaintiff therein was entitled to raise a plea of passing off when the defendant therein had adopted a similar mark.

8. We have heard the learned counsel for the Appellant and perused the record. Signing

9. The scope of interference, while hearing appeal against the order passed by a Commercial Court, in Intellectual Property matters, under Order XXXIX Rule 1 and 2 CPC stands settled by the judgment of the Supreme Court in Wander Ltd. v. Antox India (P) Ltd.[2] The relevant paragraph reads as under: -

10. In its recent decision in Pernod Ricard India (P) Ltd. v. Karanveer Singh Chhabra[5], the Supreme Court has reiterated the aforesaid principles at paragraph 19.[8] which reads as under: - “19.8. In Wander Ltd., this Court elaborated the principles governing the grant or refusal of interim injunctions in trademark infringement and passing off actions. It was underscored that appellate courts ought to be circumspect in interfering with the discretionary orders of lower courts in such matters. Interference is warranted only where the discretion has been exercised arbitrarily, capriciously, perversely, or in disregard of settled legal principles. [Emphasis supplied]

11. Thus, as summarized by the coordinate Bench in Sanjay Gupta and Vinay Gupta v. Vineet Jain, Proprietor of Vijaypal Vineet Kumar and Co.[6] an appeal against an interlocutory order passed by the Commercial Court, the Appellate Court would not substitute its subjective view for the view adopted by the Commercial Court. It is only if the Commercial Court errs on principle that the Court would interfere; otherwise, factual and AIR 1960 SC 1156 1942 AC 130 2025 SCC OnLine SC 1701 2026:DHC: 1248-DB Signing discretionary evidence and findings of the Commercial Court are ordinarily immune from interference in an appeal.

12. We have therefore examined the Appellant’s submissions keeping these principles in mind.

13. For reference, a comparative table of the Appellant’s label mark and the impugned label mark is reproduced hereunder: –

14. Learned Single Judge has in the impugned order[7] on comparison of the two labels as a whole, returned a categorical finding that there is no deceptive similarity in the Appellant’s label mark and the impugned label mark. We find no ground for interfering in the view taken by the learned Single Judge, as it is a plausible view, even if there could be a possible alternate view.

15. The Appellant has challenged this finding of the learned Single Judge on the plea that even when compared as a whole the impugned mark ‘TIGER PREMIUM BRAND’ is deceptively similar to the registered mark ‘TIGER GOLD BRAND’ and likely to cause confusion amongst the consumers. The Appellant has sought to illustrate this confusion at Ground at paragraph nos. 9 to 13 Signing L of the appeal by alleging that customers refer to its product by the brand name TIGER. The fallacy in this submission of the Appellant is apparent. In its illustration, the Appellant is emphasizing on the recall value of its trademark by the customer as TIGER (wordmark) and not as TIGER PREMIUM BRAND (label). The substance of the Appellant’s argument is that the word TIGER is exclusively associated with its goods and therefore any reference to TIGER would be construed as a reference to Appellant’s goods. However, in contradiction the Appellant at Ground A has specifically pleaded that it is not claiming any exclusive right over the word TIGER. It also concedes that it has no registration for the word mark TIGER or BRAND or ‘TIGER GOLD BRAND’.

16. If this Court was to accept the aforesaid submissions on deceptive similarity of the Appellant, we would have to necessarily hold that, the Appellant herein has exclusivity in the wordmark ‘TIGER’ ‘BRAND’ for these agricultural goods, which would be contrary to the admission of the Appellant that it does not have any exclusive right to the words ‘TIGER’ ‘BRAND’.

17. The Appellant is therefore raising contradictory pleas, inasmuch as while conceding that it has no exclusive rights to the word ‘TIGER’ or ‘BRAND’, it is still urging the test of customer recall based on the phonetic use of the word ‘TIGER’ ‘BRAND’.

18. In view of the admitted fact that the Appellant does not have any independent wordmark registration for the marks TIGER GOLD BRAND or TIGER or BRAND, for the claim of infringement the comparison has to be undertaken by the Court between the labels TIGER GOLD BRAND and Signing TIGER PREMIUM BRAND.

19. Learned Single Judge (at paragraph 9) has given a detailed reasons for holding that the competing labels are distinct and visually dissimilar. The Appellant in this appeal has also conceded at para VII[8] that these logos are visually dissimilar. Therefore, the challenge to the finding of the learned Single Judge holding that the two labels are not deceptively similar is not merited.

20. The Appellant has relied upon the judgment of Chacha Saree Bazar Pvt. Ltd. (supra). However, in the facts of the said case, the plaintiff had wordmark registration for its trademark ‘Chacha Saree Bazar Pvt. Ltd.’ It also has registration for other formative marks wherein ‘Chacha’ was a dominant mark. These facts were duly considered by the Division Bench while granting injunction qua the impugned logo mark of the defendant therein. However, in the facts of this case, there is no wordmark registration in favour of the Appellant herein.

21. In the aforesaid judgment, the Division Bench also concluded that the term ‘Chacha’ was not generic for the goods and services in question. In the facts of this case, however, the learned Single Judge has opined that the word ‘TIGER’ is commonly used for goods falling in relevant class 7 and has concluded that the said word is publici juris and not uniquely identifiable to the goods and services of the Appellant herein. The Appellant in Ground F of the appeal has admitted that there are other traders who are using the mark ‘TIGER’ in class 7, it is however contended that the said mark has attained distinctiveness qua Appellant’s goods, which has been rejected by the learned Single Judge. Signing

22. In this context, the learned Single Judge has expressly opined that the Appellant/plaintiff has been unable to establish any misrepresentation, any goodwill or reputation so as to establish passing off.

23. We have perused the plaint and have examined the advertisements expenses, quoted in the plaint, which is as under: - Financial Year Expenses in INR 01-Apr-10 to 31-Mar-11 43,200 01-Apr-11 to 31-Mar-12 57,500 01-Apr-12 to 31-Mar-13 1,25,850 01-Apr-13 to 31-Mar-14 38,500 01-Apr-14 to 31-Mar-15 68,500 01-Apr-15 to 31-Mar-16 4,200 01-Apr-16 to 31-Mar-17 1,97,590 01-Apr-17 to 31-Mar-18 1,73,740 01-Apr-18 to 31-Mar-19 1,17,783 01-Apr-19 to 31-Mar-20 3,30,741 01-Apr-20 to 31-Mar-21 1,17,492 01-Apr-21 to 31-Mar-22 1,10,819 01-Apr-22 to 31-Mar-23 2,27,244 01-Apr-23 to 31-Mar-24 1,07,616 01-Apr-24 to 28-Feb-25 4,20,924 Total 21,41,699

24. The Respondent was incorporated in the year 2020 and adopted this mark in 2022. As is apparent from the above table, there is no substantial Page 9 of the synopsis Signing expenditure incurred by the Appellant on advertisements of its products bearing the Appellant’s mark.

25. We have also examined the sales figures of the Appellant’s products bearing the Appellant’s mark, provided in the plaint, at paragraph 18 which reads as under: - Financial Year Expenses in INR 01-Apr-10 to 31-Mar-11 52,85,106 01-Apr-11 to 31-Mar-12 93,96,876 01-Apr-12 to 31-Mar-13 99,45,171 01-Apr-13 to 31-Mar-14 1,12,01,977 01-Apr-14 to 31-Mar-15 14,28,180 01-Apr-15 to 31-Mar-16 29,29,780 01-Apr-16 to 31-Mar-17 20,46,32 01-Apr-17 to 31-Mar-18 53,94,468 01-Apr-18 to 31-Mar-19 33,36,160 01-Apr-19 to 31-Mar-20 70,84,405 01-Apr-20 to 31-Mar-21 24,64,599 01-Apr-21 to 31-Mar-22 2,34,841 01-Apr-22 to 31-Mar-23 1,06,38,229 01-Apr-23 to 31-Mar-24 2,28,50,978 01-Apr-24 to 31-Feb-25 1,97,27,199 Total 11,39,64,295

26. Having perused these figures, as well as considering the fact that the Respondent adopted this mark in 2022 (when it applied for registration), it is evident that there were no substantial sales recorded by the Respondent in Signing the said period and to this extent the findings of the learned Single Judge also do not require any interference.

27. The advertisement expenditure and the sales revenue fail to show that that the Appellant’s mark has acquired such goodwill amongst its consumers so as to associate the words ‘TIGER’ or ‘TIGER BRAND’ or TIGER GOLD BRAND exclusively with the Appellant’s goods, leading to misrepresentation amongst the consumers and consequent damages to the Appellant. We concur with the finding of the learned Single Judge that Appellant has failed to show that TIGER is associated exclusively with its goods. In these facts, we are not inclined to interfere with the finding of the learned Single Judge the mark TIGER has not attained distinctiveness qua the goods of the Appellant.

28. We are of the view that the learned Single Judge has applied the correct principles and there is no error whatsoever in the findings holding that no case of passing off is made out, which led to the dismissal of the injunction application.

29. For the aforesaid reasons, the present appeal is dismissed.

30. Pending applications, if any, stand disposed of.

MANMEET PRITAM SINGH ARORA, J

V. KAMESWAR RAO, J