Civil Procedure Code, 1908 Order 39 Rules 1 & 2

Dismissing Appeal against injunction . Where Defendants started manufacturing a product under the trade mark 'Voni Gel' which was deceptively similar and identical to the registered trade mark Volini . Offending carton of the ointment Voni Gel phonetically, visually and structurally identical with the plaintiffs mark barring a few un-noticeable change of letters colour combination also having vast similarity

Mr. Dhond submitted list of some of the products available in the market against which no action is taken by the plaintiff. In our view this stand is not helpful for the defendant and more particularly in view of the fact that the respondent has not given . any details so as to show that what efforts were taken by the respondents to promote their product in the market. As far as the arguments ofShri Dhond that no action was taken by the plaintiff against some other companies who were dealing in products of similar name is concerned, we lend support from the judgment of this High Court in Pidilite Industries, 2003 (5) Bom.C.R. 295 wherein similar stand was taken and it is observed in para 59 thus -
"The argument was that if the Plaintiffs have not objected to these two marks the Plaintiffs are disentitled from objecting to or at any rate securing interim relief against the Defendants mark Coriderm. We find no substance in the plea. Apart from producing tubes and cartons and some bills the Defendants have not shown the extent of the sales of these products. Indeed, at the most it can be assumed that two similar products are in the market in January, 1990. That will not, in our opinion, non-suit the Plaintiffs or disentitle them to interim relief against the Defendant." [Para 15] After hearing both the counsels at length and on perusal of the product (of the plaintifflviz. Volini and product (of the defendant) viz. Voni Gel it was noticed that caption "for quick relief from pains,swelling and inflamation", pictures and figures having cap l;on "low back pain joint pain, sprains and strains, muscular pain", the component and sequence of the component, colour combination at the background and letters are having vast similarity. Though it was tried to be contended that by the respondent that the colour of the product VONIGEL differs from the colour combination of the product VOLINI we find that there is no such difference. On the contrary the colour combination is having vast similarity. We confirm the order of Single Judge. Therefore, we dismiss the appeal. [Para 17]