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Meso Private Limited Vs. Liberty Shoes Ltd. and Ors. - (High Court of Bombay) (08 Aug 2019)

Court must consider mode of purchasing the goods, class of consumers, surrounding circumstances and degree of similarity in order to ascertain likelihood of confusion


Intellectual Property Rights

The Appellant-Plaintiff manufactures and sells of various cosmetic products, including two perfumes with trademarks Legend and Flirt. The Liberty Group, the Respondents-Defendants, launched two perfumes with names Legend and Flirt. This led to MESO filing a Trade Mark suit in this Court and moving for an injunction to restrain Liberty from selling these perfumes. The learned Single Judge initially granted an ex parte ad-interim order of injunction, which was subsequently vacated. Being aggrieved, MESO approached with present appeal seeking a grant of an injunction against Liberty Group regarding these two products.

A registered trademark is infringed when a person not being a registered proprietor or a person using by way of permitted use, uses in the course of trade, a mark which is identical with or deceptively similar to the registered trademark in relation to the goods and services for which the trademark is registered. Further, if the person uses the mark which is because of its identity with the registered trademark and similarity of good and services covered by such registered trademark and its identity with the registered trademark or likely to cause confusion on the part of the public or is likely to have an association with the registered trademark. Section 29(3) raises a presumption regarding the likely confusion on the part of the public, if the usage by a person not a registered proprietor falls under clause (c) of sub-section (2) of Section 29 of the Trademarks Act, 1999.

To ascertain whether there is a likelihood of confusion in such matters, the Court must consider the mode of purchasing the goods, the class of consumers, surrounding circumstances and the degree of similarity. These factors would differ from case to case. The test of likelihood of confusion encompasses all factors relevant to the circumstances. The perception in the mind of the average consumer of the goods is the touchstone of the concept of the likelihood of confusion. Perception to be considered is of the average consumer of such products who is reasonably well informed and reasonably observant and circumspect.

The wrapper of perfume marketed by MESO under the name Flirt has "FLIRT" printed on it in bold letters with "DEVON" also prominently written on the wrapper. Similar is the position with trademark Legend wherein "LEGEND" is written on the wrapper which also has "DEVON" written on the wrapper. Both these words 'legend' and 'Flirt' along with word "DEVON" appear on the same side of the wrapper. The wrappers of the perfumes marketed by Liberty also have words 'FLIRT and 'LIBERTY' written on the same side of the wrapper. The house names are clearly noticeable on these wrappers. The marks Legend or Flirt are, therefore, along with house name when the consumers notice these products. MESO is thus selling the products as Devon Legend and Devon Flirt, while liberty is selling them as Liberty Legend and Liberty Flirt.

Words Legend and Flirt have been used regarding perfumes falling in Class-3 along with house names by various companies. The average consumer of premium lifestyle product such as perfumes does not choose them causally. The average consumer's choice of perfume is influenced by the blends, diffusion, distillation and fragrance, concentration of perfume. Thus, this product is not chosen with indifference. Various brands and houses aggressively build up associations with the house and brand names. Recommendations exchanged between average consumers are generally on the house names. A discerning consumer knows there could be various perfumes in the market with names Legend, Flirt, Gentlemen, but such consumer will first go by the name of the house or a group marketing such variants.

Therefore, the defence of Liberty that, use of Legend and Flirt along with its house name will not cause confusion regarding the marks of MESO has to be accepted at this stage to sustain the order of refusal of an injunction. The learned single Judge has placed conditions on Liberty in respect of disclosure of accounts, which are sufficient safeguards till the disposal of the Suit. The appeal is dismissed.


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