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Phonetic dissimilarity of Trademark and Denial of Injunction

The plaintiff, an Indian company with the trade name 'ABROS,' registered its trademark and has been using it since June 2020. The defendant, Ashish Bansal, registered the mark 'NEBROS' in September 2019 on a 'proposed to be used' basis and claims actual use since September 2020. The plaintiff sought an injunction against the defendant, alleging that 'NEBROS' is deceptively similar to 'ABROS' and would cause confusion among consumers. Refusal of interim injunction by the Court based on following factos.

The court's decision hinges on the following key points:
  1. Phonetic, Visual, and Structural Dissimilarity:
    The court observed that the trademarks 'ABROS' and 'NEBROS' do not exhibit distinct phonetic similarity. 'ABROS' and 'NEBROS' differ in pronunciation, with the initial consonant sounds 'A' and 'N' creating a distinct auditory experience. Additionally, there is no visual or structural similarity between the two marks in their representation. The overall appearance and impression created by each mark are distinct enough to avoid consumer confusion.
Proof of Use:
The defendant submitted proof of using the mark 'NEBROS' since September 2020. In contrast, the plaintiff's first invoice to show the use of 'ABROS' dates back to 2021. The plaintiff's claim of prior use by its predecessor, M/s. Narmada Polymers, since 2017, lacked documentary evidence to substantiate this assertion. Therefore, the court found the defendant's claim of prior use to be more credible.

Lack of Substantiation for Prior Use:
The plaintiff's argument that the mark 'ABROS' was used by its predecessor since 2017 was not supported by any concrete evidence. In trademark disputes, the burden of proof lies heavily on the claimant to establish prior use and market presence convincingly. The absence of documentation or other forms of substantiation weakened the plaintiff's position.

Case is evaluated in terms of Passing off Action:
As both of the parties were the registered proprietor, the Court evaluated the relief in terms of Passing off Action.

Consumer Confusion and Market Presence:
For an injunction to be granted in passing off cases, the plaintiff must demonstrate a likelihood of consumer confusion. Given the differences in phonetic, visual, and structural aspects of the two marks, the court concluded that consumers are unlikely to confuse 'ABROS' with 'NEBROS.' The market presence and the timeline of use further reinforced the defendant's position.

The court denied the plaintiff's request for an injunction against the defendant's use of the 'NEBROS' mark. The decision underscores the importance of distinctiveness in trademark representation and the necessity of substantiating claims with concrete evidence. The ruling highlights that mere allegations of similarity and prior use are insufficient without compelling proof.

This case exemplifies the critical factors courts consider in trademark disputes, particularly the need for clear evidence of prior use and the potential for consumer confusion. The distinct phonetic, visual, and structural characteristics of the marks 'ABROS' and 'NEBROS' played a pivotal role in the court's determination that there was no infringement warranting an injunction.

Legal Implications:
This ruling reinforces the principle that trademark protection is not merely about registration but also about establishing a clear, distinguishable identity in the market. In legal disputes, robust evidence of prior use and market presence is indispensable for claiming trademark rights. The court's denial of the injunction in favor of 'ABROS' against 'NEBROS' serves as a reminder of the rigorous standards applied in passing off cases. The decision emphasizes the necessity for clear, convincing evidence and the importance of distinctive trademark characteristics in protecting brand identity.

Case Citation: Abros Sports International Vs Ashish Bajaj: 02.05.2024: CS(COMM) 702/2022:2024:DHC:3551:Delhi High Court: Anish Dayal. H.J.

Ideas, thoughts, views, information, discussions and interpretation expressed herein are being shared in the public Interest. Readers' discretion is advised as these are subject to my subjectivity and may contain human errors in perception, interpretation and presentation of the fact and issue involved herein.

Written By: Advocate Ajay Amitabh Suman, IP Adjutor - Patent and Trademark Attorney
Email: [email protected], Ph no: 9990389539

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