In this case, the appellant, Sachin Gupta, trading as GCMC Masala Co., appealed against an order from a learned single judge that granted an ad-interim injunction in favor of the respondent, KBM Foods Pvt. Ltd. The injunction restrained the appellant from using the mark "Gai Chaap," the device of a "COW," and other essential features of the label and trade dress of the respondent's products. The respondent had filed a suit for passing off, claiming to have been using the trademark and device since 1969, while the appellant claimed to have adopted the mark in 2017. The key issue was whether the marks were deceptively similar and if the respondent had established a prima facie case of passing off.

High Court of Delhi
Date of Decision: July 3, 2023

Procedural History:
The respondent filed a suit for passing off against the appellant, seeking an injunction to restrain the appellant from using their trademark and trade dress. The learned single judge granted an ad-interim injunction in favor of the respondent. Dissatisfied with the decision, the appellant filed an appeal before the High Court of Delhi.

Issues Presented:

• Whether the appellant's mark and trade dress are deceptively similar to the respondent's mark and trade dress?
• Whether the respondent has established a prima facie case of passing off?

Rules of Law:

• In a passing off action, the plaintiff must establish prior adoption, continuous commercial use, goodwill, deceptive similarity, and a likelihood of confusion.
• The test for deceptive similarity is based on the likelihood of confusion in the mind of an average consumer with imperfect recollection.
• In granting an ad-interim injunction in a passing off action, the court must consider the prima facie case, balance of convenience, and the potential for irreparable loss and injury.

Analysis and Reasoning:
The court examined the evidence presented by both parties, including the trademark registrations, invoices, promotional materials, and packaging of the respective products. The court noted that the respondent had established prior adoption and continuous commercial use of the mark and trade dress since 1969, while the appellant's adoption occurred in 2017. The court found that the overall packaging and device of a "COW" used by the appellant were deceptively similar to the respondent's mark and trade dress. It determined that an average consumer with imperfect recollection could be confused by the marks. The court also considered the balance of convenience and the potential for irreparable loss and injury.

Holding and Decision:
The High Court of Delhi dismissed the appeal and upheld the ad-interim injunction granted by the learned single judge. It held that the respondent had established a strong prima facie case of passing off and that the balance of convenience favored the respondent. The court concluded that the appellant should be restrained from using the marks and trade dress of the respondent to prevent passing off.

Implications and Significance:
This case highlights the importance of establishing prior adoption, continuous commercial use, and the likelihood of confusion in passing off actions. It reaffirms that the test for deceptive similarity is based on the recollection of an average consumer and that the court must consider the balance of convenience and the potential for irreparable loss and injury in granting an ad-interim injunction. The decision has implications for trademark protection and the prevention of passing off in the jurisdiction of the High Court of Delhi.

Conclusion:
The High Court of Delhi upheld the ad-interim injunction granted by the learned single judge, restraining the appellant from using the marks and trade dress of the respondent. The court found that the respondent had established a prima facie case of passing off and that the appellant's marks and trade dress were deceptively similar. The decision emphasizes the importance of protecting trademark rights and preventing passing off in the jurisdiction.