AIR 2001 SUPREME COURT 1952 ::2001 AIR SCW 1411 ::2001 CLC 564 (SC) ::2001 (1) CopyTR 288 ::(2001) WLC(SC)CVL 438 ::2001 (1) UJ (SC) 669 ::(2001) 2 CivLJ 617 ::2001 (5) SCC 73 ::2001 (2) RecCivR 583 ::(2001) 3 Scale 98 ::2001 CorLA(BL Supp) 187 SC ::2001 (2) GujLR 1419 ::(2001) 2 SCJ 553 ::2001 (2) LRI 292 ::2001 (3) Supreme 1 ::2001 (4) ICC 558 ::(2001) 2 Guj LH 53 ::(2001) 4 JT 243 (SC) ::2001 (4) SRJ 447 ::2001 (4) JT 243

Supreme Court Of India

(From : Gujarat)*

Hon'ble Judge(s): B. N. Kirpal, Doraiswamy Raju, Brijesh Kumar , JJJ

(A) Trade and Merchandise Marks Act (43 of 1958) , S.28— Infringement of trade mark - Deceptive similarity - Test for comparison - Dissimilarities in essential features - Cannot be given importance than similarities. S.M. Dyechem Ltd. v. Cadbury (India) Ltd., 2000 AIR SCW 2172 : AIR 2000 SC 2114 : 2000 CLC 1338, Overruled. The decisions of the Supreme Court in the last four decades have clearly laid down that what has to be seen in the case of a passing off action is the similarity between the competing marks and to determine whether there is likelihood of deception or causing confusion. To take a view, based on English cases that "where common marks are included in the rival trade marks, dissimilarity in essential features in devices and composite marks are more important than some similarity is not proper. The view expressed in 2000 AIR SCW 2172 : AIR 2000 SC 2114 : 2000 CLC 1338 that the principle of phonetic similarity has to be jettisoned when the manner in which the competing words are written is different is clearly contrary to the binding precedent of the Supreme Court in Amritdhara, AIR 1969 SC 449 and in Durga Dutt Sharma's case, AIR 1965 SC 980. (B) Trade and Merchandise Marks Act (43 of 1958) , S.28— Passing off action - Deceptive similarity - View that deception should n....