Trade mark assignment and deceptive similarity principles support interim protection where prima facie title and confusion are shown.

An assignee of a registered trade mark may seek interim protection even while registration of the assignment remains pending, where prima facie title is shown and the assignment is not disputed by a better claimant. Deceptive similarity must be assessed by the overall impression of the marks and packaging, including visual and phonetic resemblance, colour scheme, and get-up, rather than by microscopic comparison of isolated differences. Applying that approach, the court found the defendant's mark and packaging deceptively similar and held that the plaintiff had made out a strong prima facie case for interim injunction, so interlocutory protection was granted pending trial.

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Issues: (i) Whether a person claiming title to a registered trade mark by assignment can seek interlocutory protection pending registration of the assignment under the Trade Marks Act, 1999. (ii) Whether the defendant's mark and get-up were deceptively similar to the plaintiff's registered marks so as to justify interim injunction.

Issue (i): Whether a person claiming title to a registered trade mark by assignment can seek interlocutory protection pending registration of the assignment under the Trade Marks Act, 1999.

Analysis: The plaintiff had placed the deed of assignment and the pending application for registration before the Court. The statutory scheme was read to mean that pending registration does not, by itself, disable an assignee from protecting the mark, particularly where prima facie title is shown and the assignment is not shown to be disputed by the assignor or a person with a better claim. The Court also treated the change of name and corporate succession as supporting the plaintiff's entitlement to rely on the assigned mark.

Conclusion: The plaintiff was entitled to maintain the request for interim protection notwithstanding that registration of the assignment was still pending.

Issue (ii): Whether the defendant's mark and get-up were deceptively similar to the plaintiff's registered marks so as to justify interim injunction.

Analysis: The marks were compared as wholes, having regard to broad and essential features, visual impression, phonetic resemblance, colour scheme, packaging, and the likely reaction of a person of average intelligence and imperfect recollection. The Court held that microscopic comparison was impermissible and that the suffix "No. 7", the colour arrangement, and the overall get-up reinforced the likelihood of confusion. The defendant's additions such as "New Arrival" and other packaging features did not dispel the deceptive similarity, and the prior litigation history supported the inference of dishonest adoption.

Conclusion: The defendant's mark and get-up were deceptively similar and the plaintiff made out a strong prima facie case for interim injunction.

Final Conclusion: The appeal succeeded and interlocutory protection was granted to preserve the plaintiff's rights pending trial, with the impugned order set aside.

Ratio Decidendi: An assignee of a registered trade mark may obtain interlocutory relief pending registration of the assignment where prima facie title is shown, and deceptive similarity must be determined by the overall impression of the marks and packaging, not by microscopic comparison of individual differences.

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