Advocate Kapil Wadhwa, appearing for the plaintiff, contended that the plaintiff was the prior user of the marks. He alleged that the assailed marks were phonetically, visually and structurally similar to that of plaintiff.
He added that a mere addition of words ‘by Ashirvad’ below the word ‘Artistry’ was not sufficient to mitigate the possibility of confusion in the mind of a consumer of average intelligence and imperfect recollection. Wadhwa further highlighted the defendant was using packaging similar in colour and shape to that of the plaintiff.
This, he contended, would lead an average consumer to believe that there is an association between the plaintiff and the defendant when, in fact, no such association exists.
Further, Wadhwa highlighted that both the parties’ products were identical or at least allied and cognate to each other, available through the same trade channel, advertised through the same media sources and cater to the same consumer segment.
Thus, he argued that a case both of infringement and passing off was made out.
Source: Barandbench
