Delhi High Court
Chacha Saree Bazar Pvt. Ltd. & Anr vs Chacha Cloth House on 12 February, 2026
Author: C. Hari Shankar
Bench: C. Hari Shankar
$~32
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ FAO (COMM) 217/2025 & CM APPL. 49543/2025
CHACHA SAREE BAZAR
PVT. LTD. & ANR. .....Appellants
Through: Mr. Rishi Bansal, Mr. Rishabh
Gupta, Ms. Shruti Manchanda, Mr. Vibhor
Sethi and Mr. Mankaran Singh, Advs.
versus
CHACHA CLOTH HOUSE .....Respondent
Through: Ms. Anukriti Pareek, Adv.
CORAM:
HON'BLE MR. JUSTICE C. HARI SHANKAR
HON'BLE MR. JUSTICE OM PRAKASH SHUKLA
JUDGMENT (ORAL)
% 12.02.2026
C. HARI SHANKAR, J.
The lis
1. The appellant is the registered proprietor of the marks
CHACHA SAREE BAZAR PVT LTD and CHACHE DI HATTI,
both as word and device marks, under Section 23 of the Trade Marks
Act, 19991 for textiles, clothing and garments such as sarees, lehengas,
and like goods. The respondent, without any registration, is using the
mark CHACHA CLOTH HOUSE for trading in identical goods. The
appellant sued the respondent alleging infringement of its registered
trade marks. The suit is pending. An application, by the appellant
1 “the Act” hereinafter
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under Order XXXIX of the CPC2 for interim injunction stands
dismissed by the learned District Judge (Commercial Court)-013 on
the ground that “Chacha” is a generic and commonplace expression,
over which no one can claim a monopoly. The appellant is in appeal.
Our view
2. To our mind, the learned Commercial Court is in error on
principle. The aspect of whether a mark possesses, or lacks,
distinctiveness, has to be assessed vis-Ã -vis the goods or services in
respect of which the mark is used, and not in the abstract. A
commonplace word of everyday usage may be distinctive when used
as a mark for goods with which it has no etymological connection.
Viewed thus, we are of the view that “CHACHA” cannot be said to
lack in distinctiveness, when used for selling sarees and other like
garments.
Rival Stands before the learned Commercial Court
I. The case of the appellant before the learned Commercial Court
3. The appellant is the proprietor of several registrations, under
Section 23 of the Act, including, inter alia the following:
S. Trademark Class Date of Goods/
No. application Services
1 CHACHA SAREE BAZAR PVT. 24 14 January Textiles and
LTD (word mark) 2013 textile
2 Code of Civil Procedure, 1908
3 “the learned Commercial Court” hereinafter
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goods, not
included in
other classes,
bed and table
covers,
sarees
2 CHACHA SAREE BAZAR PVT. 25 14 January Clothing,
LTD (word mark) 2013 footwear,
headgear
3 CHACHE DI HATTI (Device) 24 16 Suiting,
December shirting
1988 & sarees
4 CHACHE DI HATTI (Device) 25 6 January Clothing
2010
5 CHACHA SUIT GALLERY 25 1 June Clothing,
2010 footwear,
headgear
6 CHACHA SUIT GALLERY 24 1 June Textiles and
2010 textile
goods, not
included in
other
classes; bed
and table
covers
4. The appellant has only one outlet, at Shops No. 8 and 9, Sarojni
Nagar Market, New Delhi-110023.
5. The respondent runs an outlet at Yamuna Nagar, Haryana. The
nature of business conducted by the appellant and respondent is the
same, i.e., trading and marketing in garments such as suits, sarees,
lehengas and like goods. The respondent was using the marks
labels/logos and .
6. Though the respondent has applied for registration of certain
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marks, it is undisputed that, as on date, the respondent does not
possess any trade mark registered under Section 23 of the Act.
7. The appellant, in its suit, alleged that the respondent’s marks
CHACHA, CHACHA CLOTH HOUSE and labels/logos
and infringed the appellant’s registered trade mark
CHACHA SAREE BAZAR PVT LTD and CHACHE DI HATTI and
that the simultaneous use of these marks resutled in likelihood of
confusion among consumers.
8. The appellant, therefore, has sought, in its suit, a decree of
permanent injunction, restraining the respondent from using the marks
CHACHA and CHACHA CLOTH HOUSE, in any form, including in
the form of the logos and , for any goods
which may be identical or similar to the goods of which appellant’s
mark is regsitered.
II. Case of the respondent before the learned Commercial Court
9. Contesting the suit, the respondent pleaded, before the learned
Commercial Court, that “Chacha” is merely the vernacular for “uncle”
and is, therefore, a generic expression used in everyday speech. It was
therefore neither distinctive nor inventive. It was further pleaded that
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the word CHACHA is common to the trade and is used in several
businesses, even as part of trade marks. The respondent submitted that
no person can seek a monopoly over such a commonly used word.
10. In any case, submitted the respondent, the rival marks were
required to be compared in their entirety and not by extracting, from
them, the word “CHACHA”. Compared in their entirety, respondent
submitted that the marks CHACHA SAREE BAZAR PVT LTD and
CHACHA CLOTH HOUSE have no similarity whatsoever and there
is no likelihood of confusion between two marks in the mind of a
consumer of average intelligence and imperfect recollection. The mere
fact that “CHACHA” is common to the two marks is insufficient to
make out a case of likelihood of confusion.
11. What the appellant was seeking to achieve, by the suit, it was
submitted, was a monopoly over the use of the generic expression
CHACHA, which is impermissible in law.
The Impugned Order
12. On 30 January 2025, the learned Commercial Court granted an
ex parte ad interim injunction in favour of the appellant and against
the respondent, restraining the respondent from using the mark
CHACHA and CHACHA CLOTH HOUSE for any goods or services
similar to those in which the appellant was using the mark CHACHA
SAREE BAZAR and CHACHE DI HATTI.
13. By the impugned order dated 30 July 2025, under challenge in
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the present appeal, the learned Commercial Court has dismissed the
application under Order XXXIX and has, thereby, vacated the ad
interim injunction granted on 30 January 2025.
14. In para 11 of the impugned order, the learned Commercial
Court identifies the “basic dispute” between the parties as “the
question of right to exclusive use of the word/term “Chacha” by the
plaintiff”. This, in turn, notes the learned Commercial Court, would
include the application of Section 174 of the Act.
15. After referring to various judicial authorities, the learned
Commercial Court holds, in paras 17 and 18 of its order, as under:
“17. Now coming back to the facts of the present case, if
“CHACHE DI HATTI, CHACHA SAREE BAZAR, CHACHA
SAREE BAZAR PVT Ltd.” are compared with the mark being
used by defendant i.e. “CHACHA/CHACHA CLOTH HOUSE”,
one can find that except for the word “Chacha”, there is no
similarity in these trade-marks. Plaintiffs have brought this suit to
stop the defendant from using the word “Chacha”. However, word
“Chacha” is also a generic word. Monopoly over such word cannot
be given unless it is proved that this word has acquired a secondary
meaning in the mind of customers to relate this word only with
plaintiffs. Defendant has taken a categorical stand that his business
is confined to Yamunanagar and nearby places in Haryana. Any
advertisement on social media or other platform is common for all
business men. Hence, if same is done by the defendant, no
exception can be taken for the same. Plaintiffs have not shown
their dominant presence with a particular image attached to their
trademark beyond Delhi.
4 17. Effect of registration of parts of a mark.–
(1) When a trade mark consists of several matters, its registration shall confer on the
proprietor exclusive right to the use of the trade mark taken as a whole.
(2) Notwithstanding anything contained in sub-section (1), when a trade mark–
(a) contains any part--
(i) which is not the subject of a separate application by the proprietor for
registration as a trade mark; or
(ii) which is not separately registered by the proprietor as a trade mark;
*****
the registration thereof shall not confer any exclusive right in the matter forming only a part of the
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18. Thus, the element of secondary meaning attributed to word
“Chacha” with its exclusive connection with the goods of
plaintiffs, is not prima facie established on the record. Hence, I do
not find a prima facie case tilting in favor of plaintiffs at this stage.
Moreover, I also have serious doubts regarding maintainability of
this suit against a proprietorship firm. Hence, application under
Order XXXIX Rule 1 & 2 CPC as moved by the plaintiffs is
hereby rejected. Ad-interim injunction granted vide order dated
30.01.2025, is hereby vacated.”
16. Aggrieved by the aforesaid order, the appellant has preferred
the present appeal.
17. We have heard Mr. Rishi Bansal for the appellants and Ms.
Anukriti Pareek for the respondent at length.
18. Both sides have also filed written submissions.
Rival contentions before this Court
I. Submissions of Mr. Bansal for the appellants
19. Mr. Bansal submits that there is no justification for finding by
the learned Commercial Court that the trade mark “CHACHA” is
generic. He submits that the issue of whether a mark is, or is not,
generic has to be decided vis-Ã -vis the goods or services in respect of
which it is used. Viewed in the background of goods for which the
rival marks are used, Mr. Bansal submits that “CHACHA” cannot be
treated as generic. He relies, in this context, on the judgment of the
Division Bench of this Court in KRBL v. Praveen Kumar Buyyani5.
5 316 (2025) DLT 783 (DB)
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20. Mr. Bansal submits that the impugned decision of the learned
Commercial Court is contrary to the anti-dissection rule contained in
Section 17 of the Act and relies, for this purpose, on the judgment of
the Division Bench in Under Armour Inc. v Anish Agarwal6.
21. Mr. Bansal further submits that, as the respondent has itself
applied for registration of the mark CHACHA CLOTH HOUSE, the
respondent was estopped from contending that the mark CHACHA
was generic and incapable of monopolisation and cites, in support, the
judgment of the Division Bench of this Court in Jain Shikanji Pvt
Ltd. v. Satish Kumar Jain7.
22. Mr. Bansal further submits that the fact that the appellant has an
outlet in Sarojni Nagar, New Delhi and the respondent has an outlet in
Yamuna Nagar, Haryana, is irrelevant to the aspect of infringement
and injunction and relies, for this purpose on the judgment of the
Supreme Court in Laxmikant V. Patel v. Chetanbhai Shah8 which
advises Courts to keep in mind the fact that a party may always choose
to expand its business.
23. Mr. Bansal finally submits that the learned Commercial Court
has not returned any finding on the actual issues in controversy, i.e.,
similarity between the marks and likelihood of confusion. On these
aspects, he submits that, the appellant has a clear prima facie case in
its favour and is entitled, therefore, to an injunction.
6 2025 SCC OnLine Del 3784
7 2023 SCC OnLine Del 1241
8 (2002) 3 SCC 65
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II. Submissions of Ms. Anukriti Pareek
24. Ms. Pareek, arguing for the respondent, submits that the aspect
of infringement or passing off has to be seen by comparing the two
rival marks in their entirety, as whole marks, and not on the basis of
the common CHACHA feature between them. Viewed as whole
marks, she submits that there is no similarity between CHACHA
SAREE BAZAR and CHACHA CLOTH HOUSE. She has
particularly drawn our attention to the rival logos used by the
appellant and respondent, which may be reproduced as under:
Appellant’s trade mark Respondent’s trade mark
Primary Word CHACHA SAREE BAZAR Chacha Cloth House
Mark PVT. LTDPrimary Logo
markOther marks CHACHE DI HATTI
CHACHA SUIT GALLERYThus, she submits that there is no likelihood of confusion between the
rival marks when compared as whole marks.
25. Ms. Pareek has also relied on the restriction entered by the trade
mark registry while granting registration to the word mark CHACHA
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SAREE BAZAR PVT LTD to the appellant, which reads “This is
condition of registration that both/all labels shall be used together”.
She further draws attention to the finding of the learned Commercial
Court that CHACHA is a generic expression which is common to the
trade and used by several in the business. It is completely lacking in
distinctiveness and, therefore, no one can seek to monopolise such an
expression.
26. Ms. Pareek submits that monopoly could be sought for the word
CHACHA only if it had acquired secondary meaning, in the minds of
the public, and was associated solely with the appellant. This, she
submits, is at the highest a matter of trial. She further submits that the
reliance, by the appellant on Section 17 of the Act is misplaced, as the
appellant had itself sought to invoke the dominant feature test and
asserted that CHACHA was the dominant feature of the appellant’s
mark. The appellant could not simultaneously invoke the anti-
dissection rule and the dominant feature test.
27. Ms. Pareek further submits that there is no territorial overlap
between the activities of the appellant and the respondent, as the
appellant has only one outlet at Sarojni Nagar, New Delhi and the
respondent has only one outlet at Yamuna Nagar, Haryana. There is,
therefore, no likelihood of confusion.
Analysis
28. Having heard learned Counsel and applied ourselves to the facts
and law on the subject, we are of the opinion that the learned
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Commercial Court has erred on principle and that the appellant is
entitled to an interlocutory injunction on the ground of infringement.
We, therefore, do not propose to examine the plea of passing off.
I. Applicable principles
29. Where infringement is found to exist, normally an injunction
must follow. This is categorically held in para 5 of the judgment of
the Supreme Court in Midas Hygiene Industries (P) Ltd v. Sudhir
Bhatia9 which reads thus:
“5. The law on the subject is well settled. In cases of
infringement either of trade mark or of copyright, normally an
injunction must follow. Mere delay in bringing action is not
sufficient to defeat grant of injunction in such cases. The grant of
injunction also becomes necessary if it prima facie appears that the
adoption of the mark was itself dishonest.”
30. The above principle in Midas Hygiene has been followed by
Division Bench of this Court in several cases including Ganraj
Enterprises v. Land Mark Crafts (P) Ltd.10, Leayan Global (P) Ltd.
v. Bata India Ltd.11 and Saurabh Gupta v. Sheopals (P) Ltd.12
31. Infringement is defined in the various sub-sections of Section
29 of the Act, of which the only relevant sub-section for our purpose
is Section 29(2)(b)13. As per the said clause, if a person, not being
9 (2004) 3 SCC 90
10 2025 SCC OnLine Del 9290
11 2025 SCC OnLine Del 9128
12 2025 SCC OnLine Del 8579
13 29. Infringement of registered trade marks –
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(2) A registered trade mark is infringed by a person who, not being a registered proprietor or
a person using by way of permitted use, uses in the course of trade, a mark which because of–
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himself the registered proprietor or permissive user, uses a mark
which is deceptively similar to a registered trade mark of another, for
goods or services which are identical or deceptively similar to the
goods or services in respect of which the mark of the other is
registered, and such usage results in likelihood of confusion or
likelihood of the public believing an association between the two
marks, infringement results. The “public” is represented by a
consumer of average intelligence and imperfect recollection, as held
by the Supreme Court in Amritdhara Pharmacy v. Satyadeo Gupta14,
Satyam Infoway Ltd v Siffynet Solutions (P) Ltd15, and several other
decisions.
32. It is also well settled that infringement is not be assessed by
placing the rival marks side-by-side16, but by assessing whether such
an average consumer, who comes across the plaintiff’s mark at one
point of time and later comes across the defendant’s mark, is likely to
be confused between the two, or believe an association between them.
It is also settled that the aspect of likelihood of confusion is to be
examined from an initial interest perspective17. In other words, what
has to be seen is whether, when the average consumer initially sees the
defendant’s mark, having come across the plaintiff’s mark at an earlier
point of time, the first impression on the psyche of such a consumer
services covered by such registered trade mark; or
(b) its similarity to the registered trade mark and the identity or similarity of the
goods or services covered by such registered trade mark; or
(c) its identity with the registered trade mark and the identity of the goods or
services covered by such registered trade mark,
is likely to cause confusion on the part of the public, or which is likely to have an
association with the registered trade mark.
14 AIR 1963 SC 449
15 (2004) 6 SCC 145
16 Refer Pernod Record India Ltd v. Karanveer Singh Chhabra, 2025 SCC OnLine SC 1701
17 Refer Shree Nath Heritage Liquor Pvt Ltd v Allied Blender & Distillers Pvt Ltd, 221 (2015) DLT 359
(DB)
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would be of confusion or association. The fact that, later, this
impression might be dispelled, does not mitigate the aspect of
infringement.
33. It is clear, therefore, that an infringement action can lie only at
the instance of a registered proprietor of the mark and cannot lie
against another registered proprietor. The infringer must be a person
who is not the registered proprietor of the allegedly infringing mark
and is not using it by way of permitted use. Else, it is not infringement
within the meaning of Section 29(2) of the Act. The fact that an
infringement action cannot lie at the instance of one registered
proprietor against another is also clear from Section 28(3)18 of the Act.
34. Registration of a mark entitles the registrant, under Section
28(1)19, to (i) exclusive use of the registered mark, for the goods or
services in respect of which it is registered and (ii) a right to relief
against infringement. The reliefs available against infringement are
set out in Section 135(1)20 and include an injunction, apart from
damages and delivery-up.
18 (3) Where two or more persons are registered proprietors of trade marks, which are identical with or
nearly resemble each other, the exclusive right to the use of any of those trade marks shall not (except so far
as their respective rights are subject to any conditions or limitations entered on the register) be deemed to
have been acquired by any one of those persons as against any other of those persons merely by registration
of the trade marks but each of those persons has otherwise the same rights as against other persons (not being
registered users using by way of permitted use) as he would have if he were the sole registered proprietor.
19 28. Rights conferred by registration. –
(1) Subject to the other provisions of this Act, the registration of a trade mark shall, if valid,
give to the registered proprietor of the trade mark the exclusive right to the use of the trade mark in
relation to the goods or services in respect of which the trade mark is registered and to obtain relief
in respect of infringement of the trade mark in the manner provided by this Act.
20 135. Relief in suits for infringement or for passing off. –
(1) The relief which a court may grant in any suit for infringement or for passing off referred
to in Section 134 includes injunction (subject to such terms, if any, as the court thinks fit) and at the
option of the plaintiff, either damages or an account of profits, together with or without any order
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35. Section 28(1), no doubt, requires registration of a mark to be
valid in order for the rights envisaged by that section to be available to
the registrant. However, at the Order XXXIX stage, the
plaintiff/registrant, who seeks interlocutory injunction on the ground
of infringement, is only required to set up a prima facie case. In other
words, he is only required to show that the registration of the mark
which he asserts is prima facie valid.
36. Section 31(1)21 of the Act statutorily obviates the necessity of a
plaintiff, who is the registered proprietor of the allegedly infringing
mark, from establishing, prima facie, that the registration is valid.
The provision states the very fact that a mark is registered, shall
operate as prima facie evidence of validity. The requirement of
adducing prima facie evidence of validity, which is all that is required
at the Order XXXIX stage, is, therefore, statutorily obviated by
Section 31(1), by the very fact of registration of the mark.
37. That said, there may be extreme cases in which a defendant may
be able, even at the prima facie stage, to prevail upon the Court not to
rely solely on the fact of registration of the mark as sufficient to make
out a case of prima facie validity. These, however, are extreme cases.
This Bench, in Quantum Hi-Tech Merchandising Pvt Ltd v. LG
Electronics India Pvt Ltd22, came across one such instance in which
the mark which was registered was different from the mark for which
21 31. Registration to be prima facie evidence of validity. –
(1) In all legal proceedings relating to a trade mark registered under this Act (including
applications under Section 57), the original registration of the trade mark and of all subsequent
assignments and transmissions of the trade mark shall be prima facie evidence of the validity
thereof.
22 2025 SCC OnLine Del 8238
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application for registration was filed. In such a case, the presumption
of evidence as engrafted in Section 31(1) of the Act cannot come to
the aid of the plaintiff, as it is apparent, ex facie, that the registration is
invalid.
38. Save for such rare and exceptional cases, however, at the Order
XXXIX stage, the fact that the plaintiff’s mark is registered is itself
sufficient prima facie valid proof of the registration and the
consequent entitlement, of the plaintiff, to the benefits of Section
28(1) of the Act.
39. Section 29 is followed by provisions which set out exceptions to
infringement and exceptions to the entitlement to injunction. Even
where the circumstances envisaged in Section 29 are found to exist,
the act of the defendant would not be infringing if it falls within the
various sub-sections of Section 30. Equally, if the case attracts
Sections 34 to 36, then, even if infringement exists, the plaintiff would
not be entitled to an injunction against the defendant.
40. We need not refer to these provisions in detail, as none of them
has been invoked by either side before us.
41. There is, however, one other provision which conditions the
aspect of infringement, and that is Section 17. Section 17 applies in
the case of composite marks, i.e., marks which are not merely a single
word or a single label. Of the various clauses of Section 17, the facts
of the present case and the rival contentions advanced before us only
require us to advert to Section 17(2).
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42. Section 17(2) contains two clauses – Section 17(2)(a) and
17(2)(b) – which are fundamentally different and distinct from each
other. Learned Counsel have invoked both these clauses and,
therefore, we would refer to both of them and examine their
applicability in the facts of the present case.
43. Section 17(2)(a) states that if a trademark consists of more than
one part, and registration is of the trademark as a whole, no exclusive
right would enure in favour of the registrant in respect of any part of
such a mark which is not separately registered and in respect of which
no separate application for registration of a mark is pending.
44. By its very nature, therefore, Section 17(2) applies only to the
plaintiff’s marks, as exclusivity is being claimed by the plaintiff and
not by the defendant.
45. In the present case, the appellant’s registered trademarks are
CHACHA SAREE BAZAR and CHACHE DI HATTI. Both are
registered as word and device mark in Classes 24 and 25. It is clear,
therefore, that, while examining the aspect of infringement, the Court
has to compare the rival marks as whole marks, in their entirety, and
cannot compare individual parts of the marks which are not separately
registered. The manner in which composite marks which consist of
various parts are to be compared as whole marks has, however, been
clarified by a Division Bench of this Court in South India Beverages
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Pvt Ltd v. General Mills Marketing Inc23. The principle in South
India Beverages stands reinforced by the judgment of the Supreme
Court in Pernod Ricard India (P) Ltd. In South India Beverages, the
Division Bench has held as under:
“20. At this juncture it would be apposite to refer to a recent
decision of this Court reported as Stiefel Laborataries v Ajanta
Pharma Ltd.24 The Court whilst expounding upon the principle of
‘anti-dissection’ cited with approval the views of the eminent
author on the subject comprised in his authoritative treatise-
McCarthy on Trademarks and Unfair Competition. It was
observed:
“41. The anti-dissection rule which is under these
circumstances required to be applied in India is really based
upon nature of customer. It has been rightly set out in
McCarthy on Trademarks and Unfair Competition about the
said rule particularly in Para 23.15 which is reproduced
hereunder:
23.15 Comparing Marks: Differences v. Similarities
[1] The Anti-Dissection Rule
[a] Compare composites as a
Whole : Conflicting composite marks
are to be compared by looking at
them as a whole, rather than
breaking the marks up into their
component parts for comparison.
This is the “anti dissection” rule.
The rationale for the rule is that the
commercial impression of a
composite trademark on an ordinary
prospective buyer is created by the
mark as a whole, not by its
component parts. However, it is not a
violation of the anti-dissection rule
to view the component parts of
conflicting composite marks as a
preliminary step on the way to an
ultimate determination of probable23 (2015) 61 PTC 231
24 211 (2014) DLT 296
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customer reaction to the conflicting
composites as a whole. Thus,
conflicting marks must be compared
in their entireties. A mark should not
be dissected or split up into its
component parts and each part then
compared with corresponding parts
of the conflicting mark to determine
the likelihood of confusion. It is the
impression that the mark as a whole
creates on the average reasonably
prudent buyer and not the parts
thereof, that is important. As the
Supreme Court observed: “The
commercial impression of a
trademark is derived from it as a
whole, not from its elements
separated and considered in detail.
For this reason it should be
considered in its entirety.” The anti-
dissection rule is based upon a
common sense observation of
customer behavior : the typical
shopper does not retain all of the
individual details of a composite
mark in his or her mind, but retains
only an overall, general impression
created by the composite as a whole.
It is the overall impression created by
the mark from the ordinary shopper’s
cursory observation in the
marketplace that will or will not lead
to a likelihood of confusion, not the
impression created from a meticulous
comparison as expressed in carefully
weighed analysis in legal briefs. In
litigation over the alleged similarity
of marks, the owner will emphasize
the similarities and the alleged
infringer will emphasize the
differences. The point is that the two
marks should not be examined with a
microscope to find the differences,
for this is not the way the average
purchaser views the marks. To the
average buyer, the points of
similarity are more important that
minor points of difference. A court
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should not engage in “technical
gymnastics” in an attempt to find
some minor differences between
conflicting marks.
However, where there are both
similarities and differences in the
marks, there must be weighed against
one another to see which
predominate.
The rationale of the anti-dissection
rule is based upon this assumption:
“An average purchaser does not
retain all the details of a mark, but
rather the mental impression of the
mark creates in its totality. It has
been held to be a violation of the
anti-dissection rule to focus upon the
“prominent” feature of a mark and
decide likely confusion solely upon
that feature, ignoring all other
elements of the mark. Similarly, it is
improper to find that one portion of a
composite mark has no trademark
significance, leading to a direct
comparison between only that which
remains.” [Emphasis Supplied]
21. The view of the author makes it scintillatingly clear,
beyond pale of doubt, that the principle of ‘anti dissection’
does not impose an absolute embargo upon the
consideration of the constituent elements of a composite
mark. The said elements may be viewed as a preliminary
step on the way to an ultimate determination of probable
customer reaction to the conflicting composites as a whole.
Thus, the principle of ‘anti-dissection’ and identification of
‘dominant mark’ are not antithetical to one another and if
viewed in a holistic perspective, the said principles rather
compliment each other.
*****
37. The factual contours of the said case may be
succinctly noted in order to appreciate the findings arrived
at by the Court. The respondent board had denied the
registration of appellant’s mark ‘ENERCON’ on the
opposition made by the proprietor of the registered
trademark ‘TRANSFORMERS ENERGON’. The appellant
challenged the said rejection on the ground that word
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‘ENERGON’ was not a dominant part of the registered
trademark and therefore negated any likelihood of
confusion. The Court rejected the plea of the appellant and
observed that both the elements of the opposer’s registered
trademark i.e. ‘transformers’ and ‘energon’ were equally
distinctive and dominant. The Court added that assessment
of the similarity between two marks means more than
taking just one component of a composite trade mark and
comparing it with another mark; on the contrary, the
comparison must be made by examining each of the marks
in question as a whole, which does not mean that the
overall impression conveyed to the relevant public by a
composite trade mark may not, in certain circumstances,
be dominated by one or more of its components.”
46. This principle is reiterated in Pernod Ricard in the following
words:
“4. However, the application of this principle is nuanced.
Courts are not expected to adopt a mechanical, side-by-side
comparison of the marks. Rather, judicial scrutiny is guided by
interpretative doctrines such as the anti-dissection rule and the
doctrine of the dominant mark, inter alia, other well-established
tests. Although these principles are frequently applied in tandem,
they do not always align perfectly, and courts have differed in their
application depending on the specific facts and context of each
case.
5. The present case offers an opportunity for this Court to
clarify the appropriate analytical framework for evaluating
competing trademarks. While the anti-dissection rule – which
requires the mark to be considered as a whole – has statutory
foundation under the Trade Marks Act, 1999, the doctrine of the
dominant mark is a judicially evolved principle, aimed at
identifying the essential or memorable component of a mark that is
likely to influence consumer perception. The purpose of this
doctrine is to determine whether the impugned mark creates a
deceptive association in the minds of consumers, thereby enabling
the defendant to unjustly benefit from the plaintiff’s established
reputation. This analysis is guided by the perspective of an average
consumer with imperfect recollection, who is not expected to retain
or compare marks with exact precision.
*****
32. A foundational principle in trademark law is that marks
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must be compared as a whole, and not by dissecting them into
individual components. This is known as the anti-dissection rule,
which reflects the real-world manner in which consumers perceive
trademarks – based on their overall impression, encompassing
appearance, sound, structure, and commercial impression.
In Kaviraj Pandit Durga Dutt Sharma v. Navratna
25
Pharmaceuticals Laboratories , this Court underscored that the
correct test for trademark infringement is whether, when
considered in its entirety, the defendant’s mark is deceptively
similar to the plaintiff’s registered mark. The Court expressly
cautioned against isolating individual parts of a composite mark, as
such an approach disregard how consumers actually experience
and recall trademarks.
32.1. While Section 17 of the Trade Marks Act, 1999 restricts
exclusive rights to the trademark as a whole and does not confer
protection over individual, non-distinctive components per se,
courts may still identify dominant or essential features within a
composite mark to assess the likelihood of confusion. However,
this does not permit treating such features in isolation; rather, they
must be evaluated in the context of the overall commercial
impression created by the mark.
32.2. This approach finds further support in the observations of
scholars such as McCarthy in Trademarks and Unfair Competition,
who note that consumers seldom engage in detailed, analytical
comparisons of competing marks. Purchasing decisions are instead
based on imperfect recollection and the general impression created
by a mark’s sight, sound, and structure. The anti-dissection rule
thus aligns the legal test for infringement with the actual behaviour
and perception of consumers in the marketplace.
32.3. Consequently, in disputes involving composite marks, the
mere presence of a shared or generic word in both marks does not,
by itself, justify a finding of deceptive similarity. Courts must
undertake a holistic comparison examining visual, phonetic,
structural, and conceptual elements, to assess whether the overall
impression created by the rival marks is likely to mislead an
average consumer of ordinary intelligence and imperfect memory.
If the marks, viewed in totality, convey distinct identities, the use
of a common element – particularly if it is descriptive or laudatory –
will not by itself amount to infringement.
*****
33. In determining whether a mark is deceptively similar to
25 AIR 1965 SC 980
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another, courts often consider the dominant feature of the mark –
that is, the element which is most distinctive, memorable, and
likely to influence consumer perception. While the anti-dissection
rule requires marks to be compared in their entirety, courts may
still place emphasis on certain prominent or distinguishing
elements, especially where such features significantly contribute to
the overall commercial impression of the mark.
33.1. The principles of the anti-dissection rule and the dominant
feature test, though seemingly in tension, are not mutually
exclusive. Identifying a dominant feature can serve as an analytical
aid in the holistic comparison of marks. In certain cases, an
infringing component may overshadow the remainder of the mark
to such an extent that confusion or deception becomes virtually
inevitable. In such instances, courts – while maintaining a
contextual and fact-specific inquiry – may justifiably assign greater
weight to the dominant element. However, emphasis on a dominant
feature alone cannot be determinative; the ultimate test remains
whether the mark, viewed as a whole, creates a deceptive similarity
likely to mislead an average consumer of ordinary intelligence and
imperfect recollection.
33.2. An analogy that aptly illustrates the significance of a
dominant element in a composite mark is that of mixing milk and
water. If a small quantity of milk is added to a half-glass of water,
the mixture becomes cloudy – the change is perceptible, but the
dominant character remains watery. Conversely, if the same
amount of water is added to a half-glass of milk, the result still
appears to be milk – the dilution is imperceptible. Though the
components are the same, the perceptual impact differs, depending
on which element dominates. Similarly, in trademark analysis, the
presence of common elements across marks does not automatically
indicate a likelihood of confusion. What matters is the relative
prominence and distinctiveness of the elements. Just as the milk in
the second example visually and qualitatively overwhelms the
water, a dominant feature in a mark can subsume other components
and shape consumer perception. Therefore, while assessing
deceptive similarity, due weight must be given to the dominant
element, without disregarding the composite nature of the mark.
33.3. The dominant feature of a mark is typically identified based
on factors such as its visual and phonetic prominence, placement
within the mark (with initial components often carrying greater
perceptual weight), inherent distinctiveness, and the degree of
consumer association it has generated. The dominant element
functions as the “hook” that captures the consumer’s attention and
facilitates brand recall. For instance, in composite marks such as
‘BLENDERS PRIDE’ or ‘IMPERIAL BLUE’, the terms
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‘BLENDERS’ and ‘IMPERIAL’ may be regarded as dominant,
owing to their distinctive and less frequently used character. In
contrast, elements such as ‘PRIDE’ or ‘BLUE’ are relatively
generic, descriptive, or commonplace in the liquor industry, as
evidenced by other marks like ROCKFORD PRIDE, ROYAL
PRIDE, or OAK PRIDE. Such shared or non-distinctive terms
cannot be monopolized, unless it is established that they have
acquired secondary meaning through extensive and exclusive use,
and are uniquely associated with the plaintiff’s goods in the minds
of the public.”
47. Thus, where the Court is considering a composite mark of the
plaintiff such as CHACHA SAREE BAZAR PVT. LTD., if anyone
part of that mark is dominant, the Court can examine whether the
whole mark of the plaintiff is deceptively similar to the whole mark of
the defendant by examining whether the dominant feature has been
copied in the defendant’s mark. As the Supreme Court in Pernod
Ricard and the Division Bench of this Court in South India
Beverages have clarified, this does not amount to re-writing Section
17(2) and permitting vivisection of a composite mark. It emanates
from the principle that a consumer of average intelligence and
imperfect recollection, who sees two marks in both of which the same
feature is dominant, and other features are subsidiary, would recollect
the marks on the basis of their dominant feature. If the dominant
feature is identical, or if the dominant features are deceptively similar
to each other, therefore, the overall impression that such a consumer
would form is similar. There is, therefore, likelihood of confusion or
association between the marks in the perception of such a consumer of
average intelligence and imperfect recollection.
48. We proceed, now, to apply these principles to the facts on hand.
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49. Viewed thus, it is clear that the dominant feature of the
appellant’s and the respondent’s marks is CHACHA. The remaining
part of both the marks only refers to the goods/services in respect of
which the marks are used.
50. Inasmuch as the dominant feature of both the marks is identical,
i.e., CHACHA, and the marks are used for identical goods or services,
i.e., trading in sarees and other similar garments and apparel, a prima
facie case of infringement within the meaning of Section 17(2)(b) of
the Act exists.
51. The learned Commercial Court has, unfortunately, not adverted
to this aspect of the matter at all. We, therefore, deem it necessary to
return our own finding thereon.
III. Section 17(2)(b) – The “generic” mark finding – Absence of
distinctiveness – Impact of Section 31(1) and 9(1)(a) at the prima
facie stage, vis-Ã -vis Section 17(2)(b)
52. The learned Commercial Court has proceeded on the premise
that the expression “Chacha” being generic, no person could be
allowed to claim a monopoly over such an expression. This, in fact, is
a principle which does not find any specific mention in the Act. The
Act does not expressly place an embargo on monopoly in respect of
generic expressions. However, what the learned Commercial Court
appears to have done is to impliedly invoke Section 17(2)(b) of the
Act which does not allow exclusivity to be claimed over a part of a
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mark which is not distinctive in nature.
53. Distinctiveness, by its very nature, has to be examined vis-v-vis
the goods or services in respect of which the mark is used. An
everyday expression of common parlance, which would ordinarily be
“generic”, may be distinctive when used in respect of goods or
services with which it has no connection whatsoever26.
54. Mr. Bansal is clearly correct in his submission that
distinctiveness, within the meaning of Section 17(2)(b) of the Act, has
to be assessed not in vacuo, but vis-a-vis the goods or services in
question. A mark which has no connection whatsoever with the goods
or services for which it is used would ordinarily be distinctive.
55. CHACHA, though otherwise a word of common usage, has
clearly no connection with sarees or garments. There is no basis,
therefore, for a Court to hold that, when used for in connection with
the sarees or garments, the word CHACHA is not distinctive.
56. In fact, ordinarily, an aspect of whether a mark is distinctive is
lacking or is not lacking in distinctiveness in connection with the
goods or services in respect of which it is used, would be a matter of
evidence and, therefore, a matter of trial, unlike an aspect of deceptive
similarity, which has to be decided by the Court on its own perception.
There is no material cited by the learned Commercial Court to support
its finding that the word CHACHA is lacking in distinctiveness when
used for sarees and apparel. Nor has Ms. Pareek, either in her oral
26 Refer Saurabh Gupta v. Sheopals (P) Ltd.
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submissions or in her written arguments, been able to adduce any
contention which could convince us, even prima facie, that the
expression CHACHA is to be treated as not distinctive when used for
sarees and garments. Her only submission is that “Chacha” is a
vernacular word of common usage, which means “uncle”. That, by
itself, cannot be the basis for a Court to hold that the mark is lacking
in distinctiveness. Unfortunately, as the learned Commercial Court has
proceeded on this basis, the impugned order is fundamentally
erroneous on principle and, therefore, invites interference within the
meaning of para 14 of Wander Ltd v. Antox India P Ltd27.
57. Sections 31(1) and 9(1)(a) of the Act also segue into this
discussion. As we have already observed, Section 31(1) operates to
confer prima facie validity to a registered trade mark, by the very fact
of its registration. The corollary would, therefore, be that the mark,
again prima facie, does not suffer from any of the hurdles against
registrability envisaged in Sections 9 and 11 of the Act.
58. Section 9(1)(a)28 proscribes registration of a mark which is
lacking in distinctiveness. A registered trade mark is, therefore,
entitled to be regarded prima facie as distinctive, in view of Section
31(1) read with Section 9(1)(a).
IV. The "common to trade" argument
27 1990 Supp SCC 727
28 9. Absolute grounds for refusal of registration.–
(1) The trade marks--
(a) which are devoid of any distinctive character, that is to say, not capable of
distinguishing the goods or services of one person from those of another person;
*****
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59. It has also been sought to be contended that the word CHACHA
is “common to trade”. Ms. Pareek seeks to submit that there are
several marks which use CHACHA as a part of the mark.
60. The submission, again, reflects an incomplete appreciation of
Section 17(2)(b) of the Act, insofar as it proscribes a claim of
exclusivity over a part of the composite mark as being common to the
trade.
61. The proscription, as contained in Section 17(2)(b), applies
where the plaintiff’s mark or the part of the plaintiff’s mark in
question, is common to the trade. The use of the particular article
“the” is of considerable significance. It conveys the idea that the mark
must be common to the trade which is under consideration, in order
for a claim to exclusivity not to be permissible in respect thereof.
62. In other words, it is only if the respondent could make out a
case that, in the trade of sarees and garments, “CHACHA” is an
expression which is commonly used, that it can be treated as common
to the trade.
63. The requisites for such a plea to succeed have been set out by a
Division Bench of this Court in Pankaj Goel v. Dabur India Ltd29.
The plea advanced before the Court, in that case, is practically
identical to the submission of Ms Pareek. The Court was concerned
with the rival marks HAJMOLA and SATMOLA. The defendant
29 2008 (38) PTC 49 (DB)
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sought to contend that the suffix “MOLA” was common to trade and
that, therefore, the fact that MOLA was the suffix in the rival marks
could not be relied upon, by the plaintiff, to allege deceptive similarity
or likelihood of confusion. This Court held (per Manmohan J, as His
Lordship then was):
“21. As far as the Appellant’s argument that the word MOLA is
common to the trade and that variants of MOLA are available in
the market, we find that the Appellant has not been able to prima
facie prove that the said ‘infringers’ had significant business
turnover or they posed a threat to Plaintiff’s distinctiveness. In
fact, we are of the view that the Respondent/Plaintiff is not
expected to sue all small type infringers who may not be affecting
Respondent/Plaintiff business. The Supreme Court in National
Bell v. Metal Goods30, has held that a proprietor of a trademark
need not take action against infringement which do not cause
prejudice to its distinctiveness. In Express Bottlers Services Pvt.
Ltd. v. Pepsi Inc.31, it has been held as under:–
“….To establish the plea of common use, the use by other
persons should be shown to be substantial. In the present
case, there is no evidence regarding the extent of the trade
carried on by the alleged infringers or their respective
position in the trade. If the proprietor of the mark is
expected to pursue each and every insignificant infringer to
save his mark, the business will come to a standstill.
Because there may be occasion when the malicious
persons, just to harass the proprietor may use his mark by
way of pinpricks…. The mere use of the name is irrelevant
because a registered proprietor is not expected to go on
filing suits or proceedings against infringers who are of no
consequence… Mere delay in taking action against the
infringers is not sufficient to hold that the registered
proprietor has lost the mark intentionally unless it is
positively proved that delay was due to intentional
abandonment of the right over the registered mark. This
Court is inclined to accept the submissions of the
respondent No. 1 on this point… The respondent No. 1 did
not lose its mark by not proceeding against insignificant
infringers…”
22. In fact, in Dr. Reddy Laboratories v. Reddy
30 (1970) 3 SCC 665
31 (1989) 7 PTC 14
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Paharmaceuticals32, a Single Judge of this Court has held as
under:–
“…the owners of trade marks or copy rights are not
expected to run after every infringer and thereby remain
involved in litigation at the cost of their business time. If
the impugned infringement is too trivial or insignificant and
is not capable of harming their business interests, they may
overlook and ignore petty violations till they assume
alarming proportions. If a road side Dhaba puts up a board
of “Taj Hotel”, the owners of Taj Group are not expected to
swing into action and raise objections forthwith. They can
wait till the time the user of their name starts harming their
business interest and starts misleading and confusing their
customers.”
(Emphasis supplied)
64. Thus, it is not sufficient for a defendant to cite various marks
existing on the Register of Trademark, or even existing outside the
Register, to make out a case of the plaintiff’s mark being common to
the trade within the meaning of Section 17(2)(b) of the Act. The
defendant would have to produce details of the trade in such marks.
Inter alia, the defendant would also have to establish when these
marks came into being and the extent to which these marks were in
use in the trade in which the plaintiff and the defendant are engaged.
The date on which the trade in these marks commenced becomes
relevant, as there is every possibility of the marks being copied from
the plaintiff’s mark itself.
65. No case of the expression CHACHA, in connection with trade
in sarees, apparels and other such goods being common to the trade
within the meaning of Section 17(2)(b) of the Act, applying the
Pankaj Goel principles, has been made out either in the written
32 (2004) 29 PTC 435
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statement filed by the defendant or in the submissions advanced
before us.
66. No case for invoking the proscription applicable to marks which
are common to the trade is, therefore, made out.
V. Plea regarding dissimilarity between the logos
67. An additional submission which was advanced by Ms. Pareek
was that the rival marks are visually completely different from each
other. She has drawn our attention to the comparison of the logos used
by the appellant as reproduced in para 24 supra.
68. The law, on this issue, stands settled against the respondent by
the judgment of the Supreme Court in K.R. Chinna Krishna Chettiar
v. Shri Ambal & Co.33 That, too, was a case of infringement. The rival
marks were label marks. The judgment itself notes that the labels were
completely dissimilar, when visually compared. However, each of the
marks contained, as its dominant feature, the word AMBAL in the
case of the plaintiff and ANDAL in the case of defendant. The
Supreme Court held that, as the words AMBAL and ANDAL, which
constituted the main feature of the rival marks, were phonetically
similar and such as would be likely to result in confusion in the mind
of the average consumer, the fact that the marks were visually
dissimilar when seen as whole marks would not mitigate the
possibility of infringement.
33 (1969) 2 SCC 131
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69. Applying the said principle to the present case, even though the
individual logos used by the appellant and the respondent may
visually be dissimilar, the main feature of the two logos are, in the
case of the appellant, the words CHACHA SAREE BAZAR PVT.
LTD. and, in the case of the respondent, the words CHACHA CLOTH
HOUSE. As CHACHA CLOTH HOUSE clearly infringes CHACHA
SAREE BAZAR PVT. LTD., the visual dissimilarity between the
logos cannot come to the aid of the respondent.
70. Besides, in the present case, the appellant has word mark
registrations for CHACHA SAREE BAZAR PVT. LTD. and
CHACHE DI HATTI. These word mark registrations entitled the
appellant to injunct not only the use of a word mark by any other
person which is deceptively similar to the mark CHACHA SAREE
BAZAR PVT. LTD. or CHACHE DI HATTI but also any device
mark of which the prominent feature is textual, if the text infringes
CHACHA SAREE BAZAR PVT. LTD. or CHACHA CLOTH
HOUSE.
71. On this ground, too, therefore, the plea of visual dissimilarity
between the logos of the appellant and the respondent cannot come to
the aid of the respondent.
Conclusion
72. Inasmuch as the learned Commercial Court has proceeded on
erroneous principles, and, applying the correct principles, we are of
the opinion that a prima facie case of infringement is made out
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between the respondent’s and the appellant’s marks, following the law
enunciated in Midas Hygiene, an injunction has necessarily to follow.
73. We, therefore, set aside the impugned order to the extent it
restricts the respondent from using the marks presently in use by them.
The respondent shall, therefore, stand restrained, pending disposal of
the suit, in using the marks and for any
goods or services covered by Classes 24, 25 or 35, or any allied or
cognate goods or services.
74. The appeal is accordingly allowed in the aforesaid terms.
C. HARI SHANKAR, J.
OM PRAKASH SHUKLA, J.
FEBRUARY 12, 2026/AR/dsn
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