Appeal Against Order No.66 of 2004

28th September, 2004

Petitioner Counsel: Mr. ANJAN DE
Respondent Counsel: Mr. RAM PARSODKAR

Cases Cited:
Electronics Corpn. of India Ltd. Vs. Secy. Revenue Department, (1999)4 SCC 458 [Para 8]
M/s. S. M. Dyechem Ltd. Vs. M/s. Cadbury (India) Ltd., AIR 2000 SC 2114 [Para 10,13]
Cadila Health Care Ltd. Vs. Cadila Pharmaceuticals Ltd., AIR 2001 SC 1952 [Para 10,14,16,17,18]
Amritdhara Pharmacy Vs. Satya Deo, AIR 1963 SC 449 [Para 10,20]
1990 (Supp) SCC 727 [Para 16]
AIR 1984 Bom. 281 [Para 16]
1971 Mh.L.J. 354 [Para 16]
2002(3) Mh.L.J. 673 [Para 16]
AIR 1996 HP 70 [Para 16]
AIR 1965 SC 980 [Para 16]
AIR 1972 SC 1359 [Para 16]
AIR 1973 Goa 31 [Para 16]
AIR 1977 Delhi 1 [Para 16]
(1999)4 SCC 458 [Para 16]
Kellogg Company Vs. Pravin Kumar Bhadabhai, 1996 PTC 16 [Para 16]
1985 PTC 167 [Para 17]
AIR 1977 Delhi 41 [Para 17]
AIR 1984 Delhi 265 [Para 17]
AIR 1961 Delhi 150 [Para 17]
(1977)3 Mh.L.J. 914 [Para 17]
(2002)3 Mh.L.J. 546 [Para 17]
Bengal Waterproof Limited Vs. Bombay Waterproof Mfg. Co., (1997)1 SCC 99 [Para 17,20]
Midas Hygiene Industries (P) Ltd. Vs. Sudhir Bhatia, (2004)3 SCC 90 [Para 17,20]
AIR 1967 SC 249 [Para 17]

JUDGMENT

JUDGMENT :- By this appeal the original defendant challenges the order dated 11-08-2004 passed below Exh.5 in Regular Civil Suit No.1 of 2004 by Additional District Judge, Amravati. The Additional District Judge, Amravati by impugned order while allowing application Exh.5 preferred by present respondent restrained the present appellant, his agents, servants, representatives, distributors, stockists from using similar sachet/label/packet and carton or one which are deceptively similar and imitate colours of package/cartons/labels of the plaintiff before it. It appears that the learned trial Court was pleased to suspend its order till 8th September, 2004 and in the meanwhile the present appellant approached this Court and the interim order continues to operate till date.

2. Brief facts as appear from the application for grant of stay moved before the trial Court by present respondent/plaintiff are that the respondent is registered company under the Companies Act, 1956 as Private Limited Company. It is stated that it was initially partnership firm which became proprietary concern subsequently and the proprietary concern was carrying on business in the name and style of M/s. Gharkul Utpadane. The respondent manufactures and markets spices, Masala, Condiment Powder meant for cooking purpose and pickles. The Word Mark "Gharkul" was throughout printed and has artistic work in the shape of triangular device depicting a house with slanting roof and chimney emiting smoke with the words "Gharkul Utpadane" written in Roman script and/or Deonagari script. The respondent states that this appears on all preparations and packages, cartons, letter heads, sachets containing products and also appear on literature, visiting cards and other stationery of the respondent. The respondent states that this trade mark appears on red background. The respondent further states that business of Gharkul Utpadane was taken over by the plaintiff Gharkul Industries Pvt. Ltd. with all assets, liabilities, goodwill, licences, trade mark, copy right and the word 'Gharkul' alongwith logo of 'Home and Chimney'. The respondent states that this is House Mark/Trade Mark of the respondent/plaintiff. It is claimed that word mark and trade mark is belonging to plaintiff and this was published w.e.f. 12-08-1986. It is stated that this artistic work was designed by one Mohan Ganorkar who was engaged by M/s. Gharkul Utpadane for creating the said work for consideration. It is stated that Director of respondent viz. Arun Dinkar Varangaonkar filed an application for registration of their trade mark in the office of Registrar of Trade Marks at Mumbai and it has been registered under the Trade and Merchandise Marks Act and Gharkul Mutton Masala is registered under the trade mark, including its cartons, sachets etc. It is also further stated that the same are also registered under the Copyright Act alongwith its artistic work, colour combination and script on both sides of the sachet. It is stated that the petitioners (defendants) have no right to copy it in any manner whatsoever.

3. The respondent has pointed out that it had earlier filed Civil Suit bearing No.2841 of 1998 before the Bombay High Court against one party viz. M/s. Ashtavinayak Food Products, Yavatmal because the said party was manufacturing and selling their spurious products and preparations packed in sachets, cartons and packages with similar trade dress. It is pointed out that the Hon'ble Mr. Justice Rane by order dated 16-03-1993 granted ad-interim injunction against M/s. Ashtavinayak Food Products, Yavatmal and restrained it from using the word mark "Gharelue" on its cartons, sachets which was deceptively similar to that of present respondent. It is further stated that the respondent learnt that the present appellant Nos.1 to 3 have introduced in market a preparation described by them as Mutton Masala which is packed in sachet, which in turn are packed in carton. It is stated that the sachet and carton bear same get-up, same colour scheme and same scheme of arrangement as appears on genuine cartons and packages of the respondent. It is stated that main feature is red colour background with yellow band and also the same words 'Mutton Masala' written in white. It is stated that appellants have putting words "Sargam" in place of words "Gharkul" in Deonagari script in same yellow letters as used by the respondent/plaintiff. It is stated that the purchasers of this Mutton Masala are mostly semi-illiterate or illiterate who are likely to be confused or deceived upon looking the plaintiff's and defendants' Mutton Masala products and may gather impression that Mutton Masala products by original defendant is yet another product of the plaintiff. The respondent states that no device of House with Chimney appear on the carton and sachet of appellants and the appellants are describing their cartons and sachet as 'Sargam' which is translated into English and Marathi. It is stated that appellants are making false and misleading statements. It is contended that the present appellant has committed piracy of original artistic work and the respondent has copy right in relation to the said artistic work vide Registration No.A-58060/2000, dated 13-12-2000. It is stated that the original defendants are doing same business and using same sachet deceptively. It is stated that it is dishonest move on their part and defendants have complete knowledge of the use of goodwill and reputation of the name of the plaintiff. It is stated that the plaintiff had therefore, issued notice through Adv. Vijay V. Keole of Amravati on 20-06-1998 and by this cease and desist notice the appellants were called upon to discontinue their wrongful act, however, they did not bother to stop. It is stated that after coming across aggressive marketing by the present appellants by its present Mutton Masala 'Sargam' in deceptively similar packages, plaintiff issued notice dated 12th June, 2004 to them directing them to desist from using similar get-up. It is stated that the appellants/defendants have duly received this notice but continued with their illegal activities and hence, the respondents were constrained to file the suit. It is stated that the appellants are also liable to furnish accounts to the respondents. It is in this background that the injunction as mentioned above has been sought for during pendency of suit. In this background if one considers the plaint, as filed by the respondent, apart from giving other details, it is stated that the plaintiffs have sales figures and advertisement expenses running into crores and lacs respectively. It is stated that the cause of action accrued on 12-06-2004 when the cease and desist notice was issued to the appellants. It is stated that on 01-07-2004 Advocate for the appellants called for certain details which were furnished to them by the original plaintiffs on 08-07-2004 and inspite of that appellants have continued to violate their trademark and copyright. It is stated that the action of the appellants in any case is passing off their product as product of original plaintiff and hence, the injunction is necessary.

4. The present appellants filed their reply before the trial Court denying all these allegations. It is stated that Gharkul Utpadane or word mark 'Gharkul' or trademark as house with Chimney does not belong to the plaintiff. It is further stated that the rapers, pouch of sachets of the appellants' product i.e. Mutton Masala is entirely different from that of the respondent/plaintiff. It is stated that their packet, carton, sachet bear name in Hindi script in bold prominent letters 'Sargam' in golden yellow colour with musical instrument Basuri (Flute) on the top of the word Sargam. It is stated that this Basuri is in golden yellow colour and on the top in white letters in Marathi it is printed "Anna Dajiba" ('Anna' means 'Fetch' and 'Dajiba' is address to an elderly person). Other description is also given and it is mentioned that below the words Sargam word Mutton Masala in Deonagari script are printed and then there is boundary in white and red colour and in between the boundaries in white and red colour there is a band in golden yellow colour. On this band in red colour in English language words ISO-9001-2000 appeared. Below that it is stated that there are bust of four people printed in white sketch, one without cap, another with Nehru cap, third with Sikh turban and fourth with Muslim cap which indicates Christian, Hindu, Sikh and Isai and on the back side of the sachet it is printed in English, Gujrati, Tamil, Kannad and in Urdu language 'Sargam Mutton Masala' in white colour and in yellow colour box in red colour ingredients are mentioned and address of Sargam Spices Pvt. Ltd. is given. It is stated that logo is printed in green, white and red colours as well as vegetarian symbol in white and green colours is printed. The appellants have compared this with the sachet/packet of present respondent and they contend that there is no deceptive similarity in the matter. The appellants have denied in their reply that the artistic work of the original plaintiff was published for the first time on 12-08-1986. The registration number as given by the plaintiffs is also denied. It is stated that notice issued by Adv. Keole on 20-06-1998 was replied through Adv. R. H. Dhotiwala on 27-06-1998. It is further mentioned that the notice dated 12-06-2004 issued by respondent contends false allegations. It is stated that the appellants are not using any carton or packaging which is identical with that of original plaintiff and which is allegedly registered under the Copyright Act. It is denied that the defendants are earning any illegal profits. In its specific plea it is pointed out that Sargam Food Products is manufacturer of Sargam Mutton Masala since 1994 and it has applied for registration of trademark vide application No.711588 on 31st July, 1996. It is further stated that it was initially a proprietary concern of appellant No.3 Mrs. Lata Laddha and partnership business was initiated on 17-02-1998 by the appellant Nos.2 and 3 under the name Sargam Foods. It is stated that defendant applied for trademark on 26th December, 2000 in continuation of user since August, 1994 vide application No.979192. It is further stated that from 01-04-2003 the partnership firm was converted into Private Limited Company w.e.f. 01-04-2003 and all business transactions, assets, liabilities, rights, customers, suppliers, etc. were taken over by the appellant No.1 Company. The appellant No.1 applied for trade mark Sargam Mutton Masala under Class 30 vide application No.711588. It is stated that the appellant No.1 is ISO-9001-2000 certified Company and it has no dishonest motive.

5. It appears that before the trial Court parties produced their respective packages and also documents of trademark, copyright etc. The learned trial Court heard both parties and thereafter has passed the impugned order on 11-08-2004. This order forms subject matter of the present appeal against the order.

6. Adv. De appearing for the present appellant argued that as per respondent they are using their trademark since 1986 and their trademark is registered in 1993 and they have obtained copyright on 13-12-2000. It is stated that the present appellant is using its own mark since 1994. He argued that first cease and desist notice was issued on 20th June, 1998 and it was replied to by the present appellant on 27-06-1998. He points out that the suit has been filed in August, 2004. He states that the suit is thus, delayed and the trial Court ought not to have granted temporary injunction in it. He further points out that there is definite stand about the delay in reply to Exh.5 filed before the trial Court by this defendant. It is to be noted that there is no stand of acquiescence in reply of present appellant filed before the trial Court. Adv. De further points out as to what is the trademark of the present respondent. According to him the trademark can at the most be words 'Gharkul' with slanting roof top above it and a chimney emitting smoke. He states that this is without any limitation as to colour. With reference to various documents filed by the present respondent before the trial Court, he points out that the respondent and appellants in present matter are concerned only with Mutton Masala. He points out that the respondent is also producing pickles under Class 29, export quality Mutton Masala, Bhaji Masala under Class 30, Mutton Masala under Class 30 and spices (Masala) of various kinds under Class 30. He states that in so far as pickles, bhaji masala or export quality masala are concerned, the appellants are not producing any of these items therefore, parties are concerned only with Mutton Masala falling under Class 30. He points out that this trademark is in the name of one Arun Dinkar Varangaonkar as proprietor of M/s. Gharkul Utpadane and it is not in the name of original plaintiff/present respondent. He points out that there is no pleading of renewal of trademark and as per Section 25 of the Trade and Merchandise Marks Act, 1958 or Section 159 of Trade Marks Act, 1999, a registered trademark is valid for seven years and is required to be renewed thereafter. He points out that there is nothing on record to show that the original plaintiff has renewed the trademarks which appeared under Class 30 vide Sr. Nos.591232 and 591231. He states that the renewal placed for the first time before this Court pertains to registration No.591229 which is export quality Mutton Masala. He further contends that these trademarks are not in vogue and respondents are marketing with unregistered trademarks. He further states that even the documents placed on record by the respondents are not registration certificate of trademark but only an acknowledgment issued by the Trade Mark Registry in favour of Mr. Arun Varangaonkar. He states that under 1958 Act there is form of Registration of the trademark which is form TM-12 and no such certificate of renewal is placed on record by original plaintiff before the trial Court. He further states that the respondents have filed misleading affidavit before the trial Court. He further states that the documents produced on record do not show that the cartons of original plaintiff are registered. He further states that in any case there is no proof of its renewal. He states that the respondents have placed their own theory upon these documents. He states that form TM-12 under the old Act is only an application for renewal and the rules do now provide for any form of "Notice of Renewal".

7. By taking the Court through the previous history as given by the respondent in his plaint, it is stated that the trademark in 1998 stood in the name of Shri. Varangaonkar as proprietor of M/s. Gharkul Utpadane. There is no trademark in the name of the present respondent. By making reference to the documents placed on record before this Court subsequently, the counsel argues that these documents do not show any renewal in the name of the original plaintiff on the contrary he argues that these trademarks are renewed in the name of non-existent entity which is not functioning at all. He states that plaintiffs have therefore, not renewed any trademark in their names. Similarly, he points out that copyright dated 13-12-2000 is also not in the name of original plaintiff but it is in the name of non-existent and non-functioning entity. He states that there is no plea of assignment of trademark or copyright by individual to Private Limited Company.

8. He has thereafter pointed out various provisions of Trademark Act to show how trademark is defined by making reference to Section 2(2b), Section 10 to point out that trademark alleged to have been registered by the respondent is without any limitation of colour, Section 25 to point out the necessity of renewal of registration, Section 29 to point out infringement of registered trademark. He points out that Trademarks Act, 1999 has come into force from 15-09-2003 and the suit has been filed on 23-07-2004. He also relies upon the contents of cease and desist notice to show that the plaint and story of the original plaintiff lacs material particulars as mentioned above. He points out that after receipt of cease and desist notice dated June 12, 2004, the appellants have asked for certain details which are vital in the matter vide their reply query dated 1st April, 2004. The reply was given by original plaintiff on 8th July, 2004 and in it they have given details of trademark and copyright registration. These trademark details are in relation to pickles failing under Class 29 and about copyright registration dated 13-12-2000. He points out that when the original defendant (present appellant) manufactures Mutton Masala, the original plaintiffs ought to have given details about their registered trademark falling under Class 30 and those details were not given. He points out various documents of trademark on which the plaintiff has placed reliance in his suit and points out as to how the same is misconceived and misleading. He also points out the Provisions of Trademark Act, 1999 in relation to the assignment and provisions of Section 18 about the application for registration, provisions of Section 3 about registration, provisions of Section 37 about power of registered proprietors to assign their trademarks. He also points out the provisions of Section 134 i.e. situations in which the suit for infringement can be filed. He points out that there is no infringement of registered trademark of the plaintiff by the defendant. He points out that the plaintiffs have no right in the alleged trademark and there cannot be any occasion of creating confusion by the appellants as their cartons, sachets, packages are materially different than that of the original plaintiff. He points out the provisions of Chapter-III of the Trademark Rules, 2002 about the renewal of registration and points out that as there is no renewal and assignment in favour of the plaintiffs of trademark, suit at the instance of the plaintiff is not maintainable. He points out that though Mr. Arun Varangaonkar may be one of the directors of respondent company still the company is distinct entity than its shareholders. He relied upon the ruling reported at (1999)4 SCC 458 (Electronics Corpn. of India Ltd. Vs. Secy. Revenue Department) for this proposition.

9. The learned counsel for the appellant thereafter invites attention of this Court to provisions of Copyright Act like Section 2(c) defining artistic work, Section 2(m) defining infringing copy, Section 13(1)(9) i.e. work in which copyright subsists, Section 14 to show meaning of copyright, Section 51 to show when copyright are infringed, Section 55 to point out civil remedies for infringement of copyright. He also invites attention to the provisions of Copyright Rule, 1958, particularly Rule 15 prescribing form of register of copyrights, Form-3 in which register of copyright is to be maintained. He points out that perusal of entry Nos.11 and 12 of this Form No.3 will show that even particulars of assignments are required to be communicated by the original plaintiffs to the Registering Authority. He states that copyright has been obtained on 13-12-2000 when Gharkul Utpadane or Arun Varangaonkar were not using the copyright and they could not have used it because they were not functioning. He states that thus, the copyright has been obtained in the name of non-existing and non-functional entity. He states that all this shows that there is no assignment of copyright. He invites attention to Form-5 prescribed under Rule 16 of these rules which prescribes proforma of application for registration of changes in the particulars of copyright entered in the register of copyrights. He states that thus, the original plaintiffs have not approached the learned trial Court with clean hands.

10. Thereafter he has cited various cases in order to point out how the passing off action is to be viewed by the Courts. He relies upon the judgment reported at AIR 2000 SC 2114 (M/s. S. M. Dyechem Ltd. Vs. M/s. Cadbury (India) Ltd.) to show the scope available to this Court while considering such appeals and how comparative strength and balance of convenience is to be looked into. He relied also upon AIR 2001 SC 1952 (Cadila Health Care Ltd. Vs. Cadila Pharmaceuticals Ltd.) to show how mind is to be applied to find out whether there is deceptive similarity and to contend that onus in this respect is always upon the plaintiff. He points out that the learned trial Court has ignored the dis-similarities while applying its mind on this lines. He further states that the learned trial court has not looked into the aspect whether the original plaintiff before it has established its reputation. He states that the aspect of delay and acquiescence is also not considered by the learned lower Court. In this respect he has placed reliance upon the judgment reported in AIR 1963 SC 449 (Amritdhara Pharmacy Vs. Satya Deo). With reference to the respective packets of the appellant and respondent, he has tried to show as to how there is no deceptive similarity in the matter. He has placed upon record a chart to distinguish and to put his remarks about various cases to which reference is made in the impugned order of the learned trial Court. He has also given in the said chart cases in support of injunction and his remarks in relation to these cases. He has also pointed out the cases in which injunction has not been granted and has tried to show as to how the case of the appellant is more in lines with this case. The remarks in details to this case is being made little later in the body of this order.

11. As against this learned Adv. R. S. Parsodkar, has pointed out the trademark and copyrights are in favour of the respondent and has invited attention of this Court to paragraph No.7 of appeal memo in which the appellants have placed their comments upon the trademark of the respondent. He also points out ground Nos.9 and 10 in the appeal memo and states that the arguments on these lines as advanced before this Court by the appellants are clearly misconceived. He states that from paragraph No.3 of the plaint assignment by Mr. Arun Varangaonkar in favour of the plaintiff company is clearly spelt out. He pointed out cartons and sachets to show that the colour scheme used therein is deceptively similar. He also points out that no reply was given to the legal notice issued by the original plaintiff in the year 1998. He has also relied upon various cases in support of his contention. Reference to this case will be made little later in the body of this order.

12. In reply the learned Counsel for the appellant has argued that the learned trial Court has ignored the fact that there is no renewal of trademark or copyright in favour of the plaintiff before it. He has contended that there is error apparent in as much as correct principles applicable in such circumstances have not been applied by the trial Court. According to him the trial Court ought to have seen that there is no plea of existing trademark or copyright in favour of the plaintiff in plaint or application. He points out that trademark in appropriate form as issued by the registering Authority is not produced before the trial Court. He contends that prima-facie case or correct meaning of exchange of notices before the Authorities is also not looked into by the trial Court.

13. The counsel for the appellant has relied upon the judgment of the Apex Court reported in AIR 2000 SC 2114 (supra) in support of his contention about the application of correct principles and application of mind by this Court. By reference to paragraph No.4 he points out that the appellant before the Hon'ble Apex Court was having renewed the trademark for the period of seven years from 17-02-1996. He points out that paragraph Nos.19 and 21 of this ruling considers relevant points in this respect and points out that the Court below ought to have considered the question of comparable strength of cases of both the parties. He states that the learned trial Court has failed to note that the respondent (plaintiff before it) did not prove that essential features of his registered trademark have been copied. He also relies upon paragraph No.57 of this judgment and states that as the trial Court had applied wrong principles, the appellate Court (High Court) will be justified in interfering in interlocutory proceedings under Order 39, Rules 1 and 2 of C.P.C.

14. In this background when the order of the trial Court is looked into, it is apparent that in paragraph No.7 before proceeding to evaluate the material on record, the trial Court has appreciated the packaging of plaintiff and has reproduced its essential feature. It has thereafter considered how there are changes in the said packaging by the defendant i.e. present appellant. The trial Court has thereafter proceeded to consider whether there is any deceptive similarity between these two sachets, packets, cartons etc. In paragraph No.8 the trial Court has considered the details of registration and further the effect of registration certificate in favour of the plaintiff. It has also considered the case law from paragraph No.11 onwards and has also considered the test to be applied in passing off action as laid down by the Hon'ble Apex Court in AIR 2001 SC 1952 (supra). From paragraph 13 onwards the learned Court has considered the arguments of defendant before it and has also considered the case law cited in support by the defendant. In paragraph No.16 after illustrating the case law as mentioned above, the trial Court has considered certain points of similarity in the sachets, cartons, packages of the plaintiff and the defendants. It is found that the colour combination and layout of both appear to be the same, ingredients and contents are same and written in same chronological order except at two places. It further finds that packing, cartons/sachets are so similar in colour and trade dress that an average or illiterate person/customer would not be in a position to differentiate between two products due to imperfect memory. It has thereafter held that the product of the defendants before it is deceptively similar to that of the plaintiff and may cause confusion in the mind of the customers. It has further found that the points of dissimilarity may not weigh heavily as compared to points of similarity. Thus, it is apparent that the learned Court below has basically approached the controversy from the point of view of passing off action. Considering the facts at hand, this perspective of trial court seems to be correct at interlocutory stage.

15. In paragraph No.17 of its order the trial Court has considered the aspect of comparative strength and there it finds that the plaintiff before it has registered trademark and also copyright in its favour. It finds that the colour combination and layout has been infringed by the defendant i.e. present appellant. It finds that therefore, comparative strength and prima-facie case are in favour of the present respondent. It has thereafter considered the fact that the plaintiff before it has spent lacs of rupees on advertisement, he has got registered copyright and trade mark and as such irreparable loss and balance of convenience is in its favour.

16. The case law cited by the appellant needs to be considered to find out whether this application of mind by the learned trial Court can be faulted with. In AIR 2001 SC 1952 (cited supra) the Hon'ble Apex Court has considered the case of medicinal preparations viz. Falcigo and Falcitab. The Court in paragraph No.10 finds that even if the trademark is unregistered, passing off action is maintainable. The Apex Court has observed that nobody has right to represent his goods as the goods of somebody else. In paragraph No.12 the Hon'ble Apex Court has stated that the test to be applied is how the average man of ordinary intelligence would react to a particular trademark, what association he would form by looking at the trademark, and in what respect he would connect the trade mark with the goods which he would be purchasing. In paragraph No.15 here the Apex Court finds that if the essential features of the trade mark of the plaintiff have been adopted by the defendant, the fact that the get up, packing and other writing or marks on the goods or on the packets in which he offers his goods for sale show marked differences, or indicate clearly the trade origin different from that of the registered proprietor of the mark would be immaterial; whereas in the case of passing off, the defendant may escape liability if he can show that the added matter is sufficient to distinguish his goods from those of the plaintiff. The Hon'ble Apex Court has pointed out that identification of the essential features of the mark is in essence a question of fact and depends on the judgment of the Court based on the evidence led before it. Then in paragraph No.35 the Hon'ble Apex Court has broadly stated that, the test to be applied in case of passing off action. As already mentioned above the learned trial Court has considered the same at the end of paragraph No.12 of its interim order. The other cases on which reference is made by the learned Counsel for the appellants are 1990 (Supp) SCC 727, AIR 1984 Bom. 281, 1971 Mh.L.J. 354, 2002(3) Mh.L.J. 673, AIR 1996 HP 70, AIR 1965 SC 980, AIR 1972 SC 1359, AIR 1973 Goa 31, AIR 1977 Delhi 1, (1999)4 SCC 458 and 1996 PTC 16, by Division Bench of High Court of Delhi.

In the last case (Kellogg Company Vs. Pravin Kumar Bhadabhai) 1996 PTC 16 the Division Bench of Delhi High Court was concerned with different class of customers which is apparent from the observations in paragraph No.24 of it. The Division Bench has found that the persons who purchased Kellogg's Corn Flakes are belonging to middle class or upper middle class and above who are fairly educated in English and cannot be misled. However, in paragraph Nos.6 and 19 of this judgment the Division Bench says that trade dress must be looked into in its entirety. In another ruling (unreported, copy given) i.e. Notice of Motion No.3208 of 1996 in Suit No.4118 of 1996 the learned Single Judge of this Court has disposed of the motion on the ground that though the label marks of 'Colgate' Tooth Paste and 'Anchor' Tooth Paste are somewhat identical, the defendant has prominently used and exposed their brand name "Anchor" on the label mark. The learned Single Judge has stated that even for a ordinary customer, though the colour combination is similar, the trade mark is prominent and definite distinctive mark of the consumer product. Therefore, interim injunction was refused.

17. As against this the learned counsel for the respondent has relied upon the cases reported at 1985 PTC 167, AIR 1977 Delhi 41, AIR 1984 Delhi 265, AIR 1961 Delhi 150, (1977)3 Mh.L.J. 914, (2002)3 Mh.L.J. 546, AIR 2001 SC 1952, (1997)1 SCC 99, (2004)3 SCC 90 and AIR 1967 SC 249.

18. It is not necessary for me to burden this order with all these cases because the tests as laid down by the Hon'ble Apex Court in the judgment reported at AIR 2001 SC 1952 have been relied by both the sides and the order impugned is only interim order.

19. In the light of the principles laid down by the various Courts and the Hon'ble Apex Court, it is clear that the entire situation is to be approached and looked at from the point of view of the ordinary, semi-illiterate or illiterate customer by applying the principle of fading memory. If this test is applied, the colour combination which is striking in this case assumes importance. As pointed out above, though the different words or devices are used by the appellant and the respondent, the colours thereof are also similar. Thus, to a rural man purchasing Mutton Masala, it would be and may be difficult to distinguish between the two products and nothing can be said with certainty at this stage in this respect. An average customer with above limitations is bound to see only striking features. These striking features are red background with yellow or garden yellow horizontal band, name of company in yellow, word Mutton Masala in white. The mark of "roof and chimney" or "flute" or words "Anna Dajiba" and such other minor difference may not be remembered for long and may not be termed as essential features in the market to which these products cater. Hence, I do not find any fault with the application of mind by the learned trial Court in this respect. The reliance upon the notice of motion rejected by the Single Judge of this Court in the matter between Colgate Palmolive Co. & Ors. Vs. Anchor Health & Beauty Care Pvt. Ltd., has again considered the different class of customers and that order dated 05-10-1998 cannot be used by the present appellant to his advantage.

20. Though I have not reproduced the law as settled in various judgments cited by the respective parties, one argument of the learned counsel for the appellant needs to be looked into. The learned Advocate has contended that first cease and desist notice was issued in June, 1998 and thereafter copyright was obtained by the plaintiffs (as alleged) on 13-12-2000. He states that no action was taken on the basis of 1998 notice and after obtaining copyright no action was taken for almost about four years. He contends that thus, the respondents have acquiesce in user of the appellant/original defendant. He has relied upon the judgment reported at AIR 1963 SC 449 (Amritdhara Pharmacy Vs. Satya Deo) for this purpose. Paragraph 14 of this judgment is important and the Hon'ble Apex Court in the said paragraph has quoted from Volume 32 pages 656-657, paragraph 966 of Halsbury's Laws of England. In it is stated that :

"If a trader allows another person who is acting in good faith to build up a reputation under a trade name or mark to which he has rights, he may lose his right to complain, and may even be debarred from himself using such name or mark. But even long user by another, if fraudulent, does not affect the plaintiff's right to a final injunction; on the other hand prompt warning or action before the defendant has built up any goodwill may materially assist the plaintiff's case."

In the facts of the case the Hon'ble Apex Court has found that the respondent before it was using trade name "Laxman Rekha" since 1923 and it was the case of fraudulent user. In the facts of the present case, inference of acquiescence cannot be borne. In 1998 itself the plaintiff warned the respondent in this respect and has initiated action in 2004 after obtaining copyright in the year 2000. It is to be noted that no such plea of acquiescence has been taken by the present appellant before the learned lower Court. Only the plea of delay has been taken and the learned counsel for respondent (original plaintiff) has relied upon the judgment reported at (2004)3 SCC 90 (Midas Hygiene Industries (P) Ltd. Vs. Sudhir Bhatia) to contend that mere delay is not sufficient to defeat grant of injunction in such cases. It is no-doubt true that it is the case of infringement of trademark or copyright. The Hon'ble Apex Court has found that the Division Bench of the High Court was entirely wrong in vacating injunction granted by Single Judge merely on the ground of delay and laches. The learned counsel for respondent has also relied upon the judgment reported at (1997)1 SCC 99 (Bengal Waterproof Limited Vs. Bombay Waterproof Mfg. Co.) to contend that even in the action for passing off fresh cause of action accrues every time when the person passes off his goods as that of another. He points out that the action for passing off is a common law remedy being an action in substance of deceit under the Law of Torts. There is recurring and fresh cause of action every time. The Hon'ble Apex Court in this case, has found that the defendant in such a suit cannot be armed with licence to go on committing fresh acts of infringement and passing off with impunity without being subjected to any legal action. Thus, the Hon'ble Apex Court has negatived the argument based upon the delay or based upon the provisions of Order 2, Rule 2, Sub-rule (3) of C.P.C.

21. The argument of the appellant that the plaintiffs have not discharged their onus and they have not shown that having established any reputation or goodwill in the market in relation to the trademark or copyright and that there is no application of mind in this respect by the learned trial Court also needs to be negatived. The learned trial Court has in paragraph No.18 found that the respondent/plaintiff has spent lacs of rupees for advertisement of his product and he has registered copyright and trademark with respective authorities. The plaintiff in his plaint has given details of these expenses for past three years and thus the expenses read as under :-

Sr. No.	Year Ended on	Advertisement Expenses (Rupees)	Sales Figures (Rupees)
1.	2000-01	1,27,629/-	2,22,75,294/-
2.	2001-02	2,56,751/-	2,34,51,690/-
3.	2002-03	16,84,500/-	2,41,03,216/-

Thus, these figures of sale and advertisement expenses clearly negatived the argument of the appellants. The learned trial Court has only not made any express reference to these figures in its order.

22. The order passed by the learned trial Court is interlocutory order meant to operate during pendency of the suit. The present appellants (Original Defendants) have not pointed out any registered trademark or copyright in their favour. The first notice dated 20-06-1998 issued by the plaintiff to the defendant if perused (sic). It shows that noticee No.4 Shri. S. M. Thele was plaintiffs earlier employee while noticee No.3 Mr. N. W. Kale is the person who has been printing labels, cartons etc. for M/s. Gharkul Utpadane. The plaintiff has stated that the noticee No.4 is disgruntled ex-employee and he has joined hands with noticee No.2 Mrs. M. P. Laddha and is getting identical packaging material printed from respondent No.3. It is to be noticed that yet parties have not led any evidence before the Court. However, user by the present appellant of deceptively similar cartons and sachets, prima facie does not seem to be bonafide and honest one. In such circumstances, I do not find anything wrong with the order passed by the learned trial Court.

23. However, considering the controversy involved in the matter, the learned trial Court is directed to expedite the decision in Civil Suit No.1 of 2004 pending on the file of Additional District Judge, Amravati. The suit should be decided as early as possible and in any case within a period of six months from the date of receipt of this order by the Court.

With the result I do not find any substance in the appeal, the appeal is accordingly dismissed with no order as to costs. It is made clear that all observations contained herein are only prime-facie evaluation of controversy and the trial Court is free to reach its own findings after appreciation of evidence uninfluenced by any of these observations.

After the order was pronounced, learned Adv. Anjan De appearing for the appellant makes a request that till today interim order passed by the trial Court is operating in his favour and he prays for its continuation further for a period of at least six weeks to enable him to approach the Hon'ble Apex Court and seek appropriate orders in this respect.

I have heard learned Advocate Mr. Parsodkar, who strongly opposed this request.

However, in the interest of justice, interim order which was operating in favour of the appellant, till today, is continued for a period of three weeks more.

Appeal dismissed.