Saturday, May 29, 2010

Trade Marks Act, 1999

Sections 27 & 29

Trade Mark "ketpod" of the plaintiff against defendants' mark "zetpod"
HELD it must be said that they are similar, the product to which they are applied is almost identical. Since the goods are identical it is obvious that the nature and kind of customer who would likely to buy these goods would also be similar. In this case it is necessary to apply both the visual and phonetic test. The words "ket pod" used by the plaintiff and the word "zet pod" are in my view phonetically similar. While pronouncing both, these words the assent and stress is naturally on the syllable "et". It one replace the letter "k" in word "ket pod" with letter "t", the word "tet pod" would still have pronounced use of syllable "et". I have therefore no hesitation to record my prima facie finding that the mark of the defendant is to the similar to the mark at the plaintiff. It is common ground that the plaintiff on one hand adopted and started manufacture of the products way back in 2001 and they have been selling the goods extensively throughout the country, comparatively the defendants product with the impugned mark, admittedly came to market recently in 2008.The defendants action smacks of this dishonesty.
Interim injunction made absolute.

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