Deceptive similarity in trademarks and prior use justified interim injunction in infringement and passing off dispute.

Prior use and registration of BOOM PLUS were treated as strong support for interim protection against use of SUPER BOOM, because the competing marks were found to be deceptively similar in phonetic, visual and overall commercial impression. The court applied section 29(5) of the Trade Marks Act, 1999 to treat use of a registered mark, including as part of a trade name, as infringing use. On the facts, the plaintiff established a prima facie case, balance of convenience and irreparable injury, so interim injunction was warranted and refusal of injunction was unsustainable.

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Issues: Whether the appellant made out a prima facie case for interim injunction against the respondent's use of the mark SUPER BOOM on the ground of trademark infringement and passing off.

Analysis: The appellant had established prior use and registration of the mark BOOM PLUS since 1987, while the respondent's use of SUPER BOOM was only for a few months and remained unregistered. The competing marks were assessed on phonetic, visual, and overall commercial impression, and the Court held that the resemblance was sufficient to create a likelihood of confusion among the relevant class of purchasers. Section 29(5) of the Trademarks Act, 1999 was relied upon to hold that use of a registered mark, including as part of a trade name, amounts to infringement. The Court also found that the appellant satisfied the requirements of prima facie case, balance of convenience, and irreparable injury.

Conclusion: The appellant was entitled to interim injunction, and the refusal of injunction was not sustainable.

Ratio Decidendi: Phonetic and overall deceptive similarity between competing marks, coupled with prior user and registration, can justify interim relief in infringement and passing off actions where the plaintiff establishes prima facie case, balance of convenience, and irreparable injury.

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