CORZA INTERNATIONAL v. FUTURE BATH PRODUCTS PVT LTD

1. Present appeal has been filed challenging the order dated 4th November, 2022 passed by learned Single Judge in CS (COMM) No.461/2020.

2. Learned counsel for the appellants/defendants states the learned Single Judge has erred in granting interim injunction in favour of the respondent NO. 1/plaintiff without appreciating that the appellants are primarily engaged in the field of manufacturing and selling of water closets and ancillary products since

1999. He contends that the appellants’ products are completely different from the respondents’ products. He emphasises that the two marks in question, namely, CORZA and CORSA, are different and their area of physical operation is also different. He states that while the business of the appellants is confined to the State of Kerala, the respondents/plaintiffs have no presence in Kerala. Therefore, according to him, there is no question of loss of market share or customers being confused.

3. He contends that the appellants and their predecessor have been using the mark since 1999 continuously and bonafidely and due to such extensive use, the appellants hold goodwill and reputation for their trademark CORZA. He further states that though the respondent no. 1 claims to have started using the name since 1998, yet they failed to produce any document to sustain their claim.

4. Learned counsel for the appellants lastly submits that as the appellants are registered owner of the mark CORZA in Class 19, the learned Single Judge in view of Sections 28(3) and 30(2)(e) of the Trade Marks Act, 1999 could not have confined the operations of the appellants to the State of Kerala and that too with regard to Class 19 category goods.

5. Having perused the paper book, this Court is in agreement with the prima facie view of the learned Single Judge that the two marks in question are phonetically, structurally and visually similar. This Court is also in agreement with the prima facie finding of the learned Single Judge that the respondent no.1/plaintiff no.1 is the prior user of the mark in question as it has produced documents showing use of the mark CORSA since 2009, whereas the appellants have placed on record documents showing use of their mark CORZA only since

2014.

6. The contention of the appellants that they are confined to the State of Kerala and that too with regard to Class 19 goods is not correct as the prime reason for institution of the suit by the respondents before the learned Single Judge was that on their Facebook page, the appellants had themselves stated that they would be shortly expanding their business to sanitary wares, which would have included respondents/plaintiffs’ products.

7. Further, the consistent view taken by this Court is that the registered proprietor of a trademark can sue another registered proprietor of a trademark alleging deceptive similarity and the Courts are competent to grant an ad-interim injunction. The Division Bench of this Court in Raj Kumar Prasad & Anr. Vs. Abbott Healthcare (P) Ltd., 2014 SCC OnLine Del 7708 has held as under:-

20. Ex-facie there is visual and phonetic deceptive similarity in the trademark 'AMAFORTEN' in comparison with the trademark 'ANAFORTAN'. It has to be kept in mind that the competing goods are pharmaceutical preparations, the class of the goods is the same; the consumer is the same and the trade channel is the same. Concededly through its predecessors-in-interest Abbott has inherited the good will and reputation in its trademark 'ANAFORTAN' and would be entitled to protect the same. Whereas through its predecessors-in-interest Abbott is in the market since the year 1988 defendant entered the market somewhere in the year 2012 when the suit was filed. We note that the defendant has consciously not disclosed in the written statement the day it started selling the goods in the market. From the documents filed by the defendants we find that it applied to the Registrar of Trademarks for registration of the trademark 'AMAFORTEN' on June 17, 2009 and was granted registration on July 12, 2011.

21. Tested on the legal principles laid down by the Supreme Court in the decision reported as 1990 (Supp.) SCC 727 Wander Ltd. & Anr. Vs. Antox India P.Ltd. we find no infirmity in the view taken by the learned Single Judge and thus would dismiss the appeal challenging the order dated April 25, 2014 allowing IA No.23086/2012 filed by Abbott.”

8. Accordingly, the submission that the learned Single Judge could not have made the interim arrangement confining the appellants to sell their goods under Class 19 category and that too in the State of Kerala is untenable in law.