High Literacy rate in Kerala, not the yardstick for assessing confusion

Can the state’s literacy rate be a criterion while deciding the likelihood of confusion between the trademarks? An appeal before the High Court of Kerala challenges the District Court’s finding holding “Kerala has a high rate of literacy; the deception on account of a deceptively similar trade mark is not possible.”

Facts of the case in a nutshell

The Plaintiff, Sajeev Kumar (SK) registered proprietor of the mark, JEWEL HUT in class 35, filed the suit before the District Court, Thiruvananthapuram, alleging trademark infringement to restrain the Defendant, Rajeev, from using the mark ‘JEWEL HUNT’. SK claims to be using the mark JEWEL HUT since 2004 and obtained registration in the year 2009, which is valid and subsisting. The parties were jointly running the business until the year 2018 when they parted ways. In the year 2019, Rajeev started a similar business under the name ‘JEWEL HUNT,’ which SK alleges amounts to trademark infringement and passing off. Along with the suit, an injunction application was filed by SK to restrain the use of the mark ‘JEWEL HUNT’. This application was dismissed by the District Court against which SK filed an appeal before the Kerala High Court.

Grounds in Appeal

  1. Trial Court’s order in denying injunction is without considering applicable provisions of the Trademarks Act and against settled principles of law.
  2. The District Judge has overlooked the documents filed by the parties, and the impugned order is based on conjectures and surmises and more in the realm of personal opinion.
  3. The Court’s finding that Supreme Court’s judgment in Cadila Health Care Limited v Cadila Pharmaceuticals Limited is not applicable to the facts of the case is wrong and against the basic principles of Trademarks law.

After considering the arguments canvassed by the parties, the High Court made the following observations:

  • The parties do not dispute the facts of the case. That said, the Judge’s findings to the effect that judgment of the Hon’ble Supreme Court in Cadila Health Care Limited v. Cadila Pharmaceuticals Limited is not applicable in the instant case considering the high rate of literacy in Kerala is patently wrong and without any legal basis.
  • The finding that the possibility of confusion among the customers on account of phonetic similarity may arise when the word ‘Jewel Hunt’ is broadcasted or transmitted through radio or TV channel and not otherwise is again incorrect.
  • The trial court has failed to consider settled legal principles and judicial precedents and concluded that merely because Kerala has a high literacy rate, deception on account of a deceptively similar trademark is not possible.
  • The documents on record show that JEWEL HUT is a registered trademark since 2009, whereas, the application for the mark JEWEL HUNT is filed in the year 2018 and is pending. Thus, the court below failed to appreciate that this is a case which squarely falls within the ambit of Section 29 of the Trademarks Act.
  • The findings of the District Court, while dismissing the injunction application, are based on personal opinion and not in conformity with settled principles of Trademark law and judicial precedents. The order, if allowed to stand, will create a situation where any violation of provisions of the Trademarks Act will be resisted by parties on the ground that deception is not likely considering the high literacy rate in Kerala.

Given the above, the High Court remanded the matter to the District Court with a direction to consider the injunction application afresh, keeping in mind settled principles of Trademark law and judicial precedents.

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