Law: Trade Marks Ordinance, 2001

Section: 39,40,46

Law: Civil Procedure Code (V of 1908)

Section: 1,2

Trade Marks Ordinance (XIX of 2001)--- ----Ss. 39, 40 46----Civil Procedure Code (V of 1908) O. XXXIX Rr. 1 2--- Rights conferred by registration of trademark---Infringement of registered trademark---Ascertaining infringement of trademark by considering phonetic similarity/pronunciation---Domain names likely to cause confusion/deception and infringement of trademarks--- E-commerce--- Scope--- Application for temporary injunction in respect of registered trademark sought to restrain defendant from using trademark which plaintiff alleged was similar in spelling and pronunciation to plaintiffs registered trademark, and further sought to restrain defendant from using domain name with similar spelling/pronunciation of plaintiffs registered trademark---Validity---Once trademark was registered under Trade Marks Ordinance, 2001, it restricted other parties from using such trademark and registration certificate for trademark was prima facie evidence in all legal proceedings relating to the trademark infringement---In the present case, both trademarks had phonetic similarly and pronunciation of the mark was a determining criterion in ascertaining infringement---Defendants mark had affinity of sounds with plaintiffs registered trademark in spite of there being no visual resemblance between the two in terms of size and font---Ocular comparison was not always decisive test in determining infringement and resemblance between two marks may also be considered with reference to ear well as eyes, and thus such phonetic similarity constituted an important in index in evaluating that defendants mark prima facie bore deceptive and misleading similarity to plaintiffs mark---Using of marks similar or identical to others to conduct e-commerce for goods or services was likely to cause confusion among relevant public, and was one of acts causing harm to others exclusive right to use a trademark therefore had a good prima facie case, and due to similarity between two marks, defendants intention to infringe was obvious, and therefore balance of convenience also fell to plaintiff---High Court restrained defendant from using trademark of plaintiff---Application under O. XXXIX, R. 1, C.P.C.…

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