Appeal from Order No.111 of 2015

8th February, 2016.

Petitioner Counsel: Shri. R.R. MANTRI, Shri. PAWAN K. LAKHOTIYA
Respondent Counsel: Shri. A.P. BHANDARI

Cases Cited:
Parle Products (P) Ltd. Vs. J.P. and Co. Mysore, AIR 1972 SC 1359 [Para 15,17]
K.R. Chinna Krishna Chettiar Vs. Ambal and Co., AIR 1970 SC 146 [Para 15]
Heinz Italia Vs. Dabur India Ltd., 2007(4) ALL MR 777 (S.C.)=(2007) 6 SCC 1 [Para 15,18]
Kaviraj Pandit Durga Dutt Sharma Vs. Navaratna Pharmaceutical Laboratories, AIR 1965 SC 980 [Para 15]
Ramdev Food Products Pvt. Ltd. Vs. Arvindbhai Rambhai Patel, 2007(1) ALL MR 402 (S.C.)=AIR 2006 SC 3304 [Para 15,19]
Hiralal Prabhudas Vs. Ganesh Trading Company, AIR 1984 Bom. 218 [Para 15]
Chimanlal Narsaji Suhan Vs. Parasmal Mithalal Parmar, 1998(3) ALL MR 809=1997 (PTC) 17 [Para 15]
Kishor Zarda Factory Vs. J.P. tobaccos, AIR 1997 Delhi 172 [Para 15]
M/s. Richardson Vicks Inc. Vs. M/s Vikas Pharmaceuticals, 1990 PTC 16 [Para 15]
M/s. Murari Lal Harish Chander Jaiswal Vs. M/s. Raj Zarda Works, 1995 PTC 209 [Para 15]
J.P. Coats Ltd. Vs. Gian and Co., 1983 PTC 127 [Para 15]
Prince Rubber Industries Vs. K.S. Rubber Industries, 1983 PTC 34 [Para 15]
Richardson Vicks Inc. Vs. Medico Laboratories, 1985 PTC 167 [Para 15]
Cox Distillery Vs. McDowell & Co. Ltd., 1999 PTC (19) 507 [Para 15]
Allied Nippon Ltd. Vs. M/s Allied Motors, 1999 IVAD Delhi 967 [Para 15]
Burroughs Wellcome (India) Ltd. Vs. Uni sole Pvt. Ltd., 1998(1) ALL MR 290=1997(3) Mh.L.J. 914 [Para 15]
Deccan Bottling and Distilling Industries Pvt. Ltd. Vs. Brihan Maharashtra Sugar Syndicate Ltd., Nasik, 2009(2) Mh.L.J. 302 [Para 15]
Amritdhara Pharmacy Vs. Satya Deo Gupta, AIR 1963 SC 449 [Para 15]
Glaxo Operations UK Ltd. Vs. Samrat Pharmaceuticals, 1984 PTC 66 [Para 15]
Durga Dutt Vs. Navratna Pharmaceuticals Laboratories, AIR 1965 SC 980 [Para 17]
Essco Sanitations Vs. Mascot Industries, AIR 1982 Delhi 308 [Para 22]
F. H. Roche And Co. Vs. G. Manner And Co., 1969 (2) SCC 716 [Para 23]

JUDGMENT

JUDGMENT :- Appeal is admitted. Notice after admission, made returnable forthwith. By consent, heard for final disposal.

2. The appeal is filed against the order made on Exhibit 5 by District Judge-1 Newasa, District Ahmednagar in Trade Mark Suit No.1/2015. In the suit filed by the present respondent, Chemical Industry, against the appellants, order of temporary injunction of following nature is made:-

"The defendants are hereby restrained, by themselves or through their servants, agents or through anybody else on their behalf, from using the trade mark "JAL DROP" or any other trade mark identical or deceptively similar to the plaintiff's registered trade mark "JEEVAN DROP" till final decision of the suit."

Initially ex-parte order of temporary injunction was made and it is confirmed on merits, after hearing both sides.

3. The suit is filed by present respondent under section 134(2) of the Trade Marks Act 1999 (hereinafter referred to as "the Act"). The plaintiff is a manufacturer of chemical substance, Sodium Hypochlorite Solution. This substance can be used as drinking water disinfectant. It is the case of the plaintiff that it is in the business of manufacturing and marketing of this substance for more than two decades. It is contended that in the month of August 1996 the plaintiff conceptualized and adopted the trade mark "JEEVANDROP". It is contended that application for registration of the trade mark was made on 30-8-1996 in Class 5 of the goods of the Act and the trade mark has been registered.

4. It is the case of the plaintiff that it has been using the word "JEEVANDROP" as trade mark and it is also using artistic logo having this word. The plaintiff has given the picture of logo in the plaint. It is the case of the plaintiff that it has been selling the aforesaid product in bottles in Maharashtra, Gujarat and Goa since more than 2 decades.

5. It is the case of the plaintiff that under the agreement deed dated 29-5-2012 it had appointed defendant No.2, Shri. Swami Samarth Agencies, as its sole distributor for Maharashtra region. It is contended that this agreement came to an end on 29-5-2014. It is contended that the plaintiff has spent huge amount on the publicity of the aforesaid brand name. It is the case of the plaintiff that defendants have no right to use the aforesaid trade mark or similar trade mark in view of the reputation and good will earned by the plaintiff.

6. It is the case of the plaintiff that in the month of October 2014 the plaintiff came across an application made by the wife of defendant No.2, Smt. Jyoti Wani for registration of trade mark "JALDROP" in class 5 and so the plaintiff took objection to the registration and gave notice to the said lady about the objection. It is contended that initially Smt. Jyoti contended that logo was created by her and it was her design but subsequently she withdrew the application.

7. It is the case of the plaintiff that in the month of March 2015 it came across a product of defendant No.1 in the market by name "JALDROP" and he noticed that the label of the bottle was similar to the label of the plaintiff 's brand "JEEWANDROP". It is contended that as per information of the plaintiff, defendant No.3 has applied for registration of trade mark "JALDROP" in Class 5 and this trade mark is deceptively similar to the trade mark "JEEVANDROP" of the plaintiff. It is contended that the defendant Nos.2 and 3 are marketing the product "JALDROP" of defendant No.1 and they are acting together. Defendant No.2 Ratnakar is said to be a cousin brother of defendant No.3 Smt. Seema.

8. With the plaint, plaintiff has produced specimen labels of his own product and the product of defendant No.1. It is the case of the plaintiff that there is infringement of his trade mark "JEEVANDROP" due to the use of trade mark "JALDROP" and it is substantially similar to the trade mark of plaintiff. It is contended that by adopting the trade mark "JALDROP" with dishonest intention defendants want to deceive the people and they want to make the people believe that "JALDROP" product is also a product of plaintiff. It is contended that the defendants are trying to trade upon the reputation and good will of plaintiff by using such deceptive trade mark.

9. It is the case of the plaintiff that in the past, defendant No.2 was distributor of the plaintiff and he has misused his position by passing off the product "JALDROP" as the product of the plaintiff. It is the case of the plaintiff that he has not consented for using trade mark "JALDROP" by the defendants. In the suit, relief of injunction is claimed on the basis of registration of trade mark "JEEVANDROP" and another relief is claimed to prevent the defendants from passing off their goods as that of the plaintiff. Damages of rupees one lac are also claimed.

10. Defendant Nos.1 to 3 filed joint written statement. Amongst other contentions they have made following specific contentions in the written statement and also in the say offered to Exhibit 5 :-

(I) That, the word "JEEVAN" used by the plaintiff is descriptive in nature and it has dictionary meaning and it is the word used for water disinfectant. That, the word "DROP" is used as drops of chemical which act as disinfectant and the name and description signifies the purpose for which the product is to be used.

(II) That, till the year 2004 the plaintiff had not used this trade mark and that can be seen from the journal published in the year 2004 where the plaintiff has mentioned that it proposes to use the aforesaid trade mark.

(III) that the word "JEEWANDROP" does not involve innovation and it is combination of dictionary words.

(IV) That, only the word "JEEWANDROP" is registered as trade mark and no artistic logo as such or device of drop in the background is registered as trade mark and so the trade mark of the defendants is distinctively different.

(V) That the defendant No.3 has applied for registration of trade mark "JALDROP" both as word and also device with two different logos. Two different logos having such word marks are submitted for registration and those marks are assigned to defendant No.2 by defendant No.3 under a deed of assignment dated 4-8-2012 and the Deeds are submitted in the office of the Registrar under the Act. Thus the words and the logos are not similar to the registered trade mark of the plaintiff and they are not likely to create confusion in the minds of purchasers of any kind.

(VI) that due to difference in the trade marks and also other things about the goods of defendant there is no question of passing off the goods of the defendants as the goods of the plaintiff.

(VII) that the defendant No.2 has his own network of distribution though he had worked as sole distributor of the plaintiff. Defendant No.2 had used his own network and he had spent on publicity and he had taken initiative for increase of the sale of the product of the plaintiff. When the agreement between the plaintiff and defendant No.2 came to an end, the plaintiff did not extend the contract and then defendant No.2 took steps to introduce such product under the name of "JALDROP" as there was demand for such product in the market. Due to the sale of the product of the defendants there is possibility that the sales of the plaintiff are affected but this is not due to the passing off the goods of the defendants as the goods of plaintiff. Due to increase in sale of product of the defendant, plaintiff is frustrated and he has taken the steps like filing the suit against the defendants to prevent them from selling their product.

11. The defendants have admitted in their written statement that Jyoti Wani had applied for registration of trade mark but it is described as "Su Jeevan Drop". It is their case that when the plaintiff filed objection, there was settlement between the parties and then Jyoti withdrew her application filed for registration.

12. It is the case of the defendants that they are manufacturing and selling sodium hypochlorite solution under the name and trade mark "JALDROP". It is their contention that their trade mark is totally different in words, in colour combination and in the material mentioned on the label. It is contended that the adoption of the trade mark by the defendants is honest and their trade mark is original and it is conceived by defendant No.3. The defendants have given points of differences between their trade mark and the trade mark of the plaintiff in the written statement.

13. On the basis of physical verification of the bottles of the plaintiff and the defendants, the trial Court observed that the size, shape etc. of the bottles are similar. It is observed that the colours of the bottles are exactly similar and the manner in which the words are printed on the labels are similar. The trial Court has observed that the defendants have attempted to make little bit difference in design, the logo and the background colour but due to such difference the overall similarity is not removed and there is intention to deceive. The circumstance that in the past wife of defendant No.2 had attempted to register similar trade mark is considered against the defendants. It is held by the trial Court that the plaintiff has already earned reputation and good will in the market by using the trade mark "JEEVANDROP" and it is observed that the defendants are trying to cause harm to this reputation and good will.

14. From the pleadings in the plaint and the reliefs claimed it can be said that the action of the plaintiff is for infringement of registered trade mark and also for passing off the goods by defendant by using the trade mark and label which, according the plaintiff, are deceptively similar to that of the plaintiff. It is not disputed that there is identity of goods. In the written statement, the defendants have admitted that in the past the defendant No.2 was the sole distributor of the plaintiff for Maharashtra region. It is also not disputed that sales of the plaintiff must have come down due to introduction of the similar product by the defendants in the market. In view of these circumstances, the provisions of sections 27, 28 and 29 of the Act need to be used. Relevant parts of the sections for the present purpose are sections 27(1), (2); 28(1) and 29(1),(2),(3) and (9) and they are as under :-

"27. No action for infringement of unregistered trade mark.- (1) No person shall be entitled to institute any proceeding to prevent, or to recover damage for, the infringement of an unregistered trade mark.

(2) Nothing in this Act shall be deemed to affect rights of action against any person for passing off goods or services as the goods of another person or as services provided by another person, or the remedies in respect thereof."

"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 Court."

"29. Infringement of registered trade marks.- (1) 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 is identical with, or deceptively similar to, the trade mark in relation to goods or services in respect of which the trade mark is registered and in such manner as to render the use of the mark likely to be taken as being used as a trade mark.

(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 -

(a) its identity with the registered trade mark and the similarity of the goods or services covered by such registered trade mark; or

(b) it 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.

(3) In any case falling under cause (c) of sub-section (2), the Court shall presume that it is likely to cause confusion on the part of the public.

(9) Wheres the distinctive elements of a registered trade mark consist of or include words, the trade mark may be infringed by the spoken use of those words as well as by their visual representation and reference in this section to the use of a mark shall be construed accordingly.

15. Both the sides have placed reliance on some reported cases. For the respondent - plaintiff learned counsel has placed reliance on the following reported cases :-

(1) AIR 1972 SC 1359 (Parle Products (P) Ltd. v. J.P. and Co. Mysore);

(2) AIR 1970 SC 146 (K.R. Chinna Krishna Chettiar v. Ambal and Co.);

(3) (2007) 6 SCC 1 : [2007(4) ALL MR 777 (S.C.)] (Heinz Italia v. Dabur India Ltd.)

(4) AIR 1965 SC 980 (Kaviraj Pandit Durga Dutt Sharma v. Navaratna Pharmaceutical Laboratories)

(5) AIR 2006 SC 3304 : [2007(1) ALL MR 402 (S.C.)] (Ramdev Food Products Pvt. Ltd. v. Arvindbhai Rambhai Patel)

(6) AIR 1984 Bom. 218 (Hiralal Prabhudas v. Ganesh Trading Company);

(7) 1997 (PTC) 17 : [1998(3) ALL MR 809] (Chimanlal Narsaji Suhan v Parasmal Mithalal Parmar);

(8) AIR 1997 Delhi 172 (Kishor Zarda Factory v. J.P. tobaccos);

(9) 1990 PTC 16 (M./s Richardson Vicks Inc. v. M/s Vikas Pharmaceuticals);

(10) 1995-PTC-209 (M/s Murari Lal Harish Chander Jaiswal v. M/s Raj Zarda Works)

(11) 1983-PTC-127 (J.P. Coats Ltd. v. Gian and Co.);

(12) 1983-PTC-34 (Prince Rubber Industries v. K.S. Rubber Industries);

(13) 1985-PTC-167 (Richardson Vicks Inc. v. Medico Laboratories);

(14) 1999-PTC-(19) 507 (Cox Distillery v. McDowell & Co. Ltd.)

(15) 1999 IVAD Delhi 967 (Allied Nippon Ltd. v M/s Allied Motors)

(16) 1997(3) Mh.L.J. 914 : [1998(1) ALL MR 290] (Burroughs Wellcome (India) Ltd. v. Uni-sole Pvt. Ltd.)

(17) 2009(2) Mh.L.J. 302 (Deccan Bottling and Distilling Industries Pvt. Ltd. v. Brihan Maharashtra Sugar Syndicate Ltd., Nasik)

(18) AIR 1963 SC 449 (Amritdhara Pharmacy v Satya Deo Gupta)

(19) 1984 PTC 66 (Glaxo Operations UK Ltd. v. Samrat Pharmaceuticals).

16. The cases on which reliance was placed by both the sides are mostly on the provisions of the Trade Marks Act 1958. Not much change has taken place in the provisions of this old Act due to introduction of the Act of 1999. It can be said that in view of the interpretation of the terms, definitions done by the Hon'ble Apex Court the definitions are made more illustrative and exhaustive in the new Act. Provision of section 29 of the new Act is more exhaustive in nature than the old section and it illustrates as to how there may be infringement of registered trade mark.

17. In the case of Parle Product (cited supra) the Apex Court has quoted and considered the observations made by it in previous case reported as AIR 1965 SC 980 (Durga Dutt v. Navratna Pharmaceuticals Laboratories). The observations are in para 7 of the report and they are as under :-

"While an action for passing off is a Common Law remedy being in substance an action for deceit, that is, a passing off by a person of his own goods as those of another, that is not the gist of an action for infringement. The action for infringement is a statutory remedy conferred on the registered proprietor of registered trade mark for the vindication of the exclusive right to the trade mark in relation to those good (vide Section 21 of the Act). The use by the defendant of the trade mark of the plaintiff is not essential in an action for passing off, but is the sine qua non in the case of an action for infringement."

"In an action for infringement, the plaintiff must, no doubt, make out that the use of the defendant's mark is likely to deceive, but where the similarity between the plaintiff's and the defendant's mark is so close either visually, phonetically or otherwise and the Court reaches the conclusion that there is an imitation, no further evidence is required to establish that the plaintiff's rights are violated. Expressed in another way, 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 a 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 or he can show the added matter is sufficient to distinguish his goods from those of the plaintiff."

18. The case of Heinz Italia v. Dabur India [2007(4) ALL MR 777 (S.C.)] (cited supra) involved use of both the Trade Mark Act and Copy Right Act and facts of the reported case were more clear and different. In the present matter product is different and due to its nature, different approach is required.

19. In the case of Ramdev Food Products [2007(1) ALL MR 402 (S.C.)] (cited supra) the Apex Court has quoted and considered the law on passing off at paragraphs 88 to 90 and those are as under :-

"ESSENCE OF PASSING OFF ACTION

88. In a case of this nature, the test for determination of the dispute would be the same where a cause of action for passing off arises. The deceptively similar test, thus, would be applicable herein.

89. The doctrine of passing off is a common law remedy whereby a person is prevented from trying to wrongfully utilise the reputation and goodwill of another by trying to deceive the public through 'passing off' his goods.

90. In Kerly's Law of Trade Marks and Trade Names' Supplement pages 42 and 43, paragraph 16-02, the concept of passing off is stated as under:-

"The law of passing-off can be summarised in one short general proposition no man may pass off his goods as those of another. More specifically, it may be expressed in terms of the elements which the plaintiff in such an action has to prove in order to succeed. These are three in number.

Firstly, he must establish a goodwill or reputation attached to the goods or services which he supplies in the mind of the purchasing public by association with the identifying 'get-up' (whether it consists simply of a brand name or a trade description, or the individual features of labelling or packaging) under which his particular goods or services are offered to the public, such that the get-up is recognised by the public as distinctive specifically of the plaintiff's goods or services.

Secondly, he must demonstrate a misrepresentation by the defendant to the public (whether or not intentional) leading or likely to lead the public to belief that the goods or services offered by him are the goods or services of the plaintiff.

Thirdly, he must demonstrate that he suffers or, in a quick time action, that he is likely to suffer damage by reason of the erroneous belief engendered by the defendant's misrepresentation that the source of the defendant's goods or service is the same as the source of those offered by the plaintiff..."

20. The observations made by the Apex Court in the cases cited supra show that few basic things need to be established for getting the relief which the plaintiff wants. If provision of section 29(2) of the Act is compared with the definition of term "deceptively similar" given in section 2(h) of the Act, it can be said that the definition itself is incorporated in section 29(2) of the Act in effect. The definition given in section 2(h) runs as under :

"2.(h) "deceptively similar",- A mark shall be deemed to be deceptively similar to another mark if it so nearly resembles that other mark as to be likely to deceive or cause confusion".

21. The definition shows that the trade mark if it is the word it should be so nearly resembling to the trade mark of defendant that possibility of deception or causing confusion in the mind of purchaser is created.

22. The question whether the word mark used by the plaintiff and the defendants nearly resemble or they do not resemble cannot be answered by generalizing the things. The approach needs to be different for different kinds of goods. In the case reported as AIR 1982 Delhi 308 (Essco Sanitations v. Mascot Industries) the factors which can be considered to determine whether particular trade mark is deceptively similar to another trade mark or not, are enumerated and they are as under :-

(i) the nature of marks;

(ii) the degree of resemblance between the marks (phonetic, visual as well as similarity in idea);

(iii) the nature of goods in respect of which they are used or likely to be used as trade marks;

(iv) the similarity in the nature, character and purpose of the goods of the rival traders;

(v) the class of purchasers who are likely to buy the goods bearing the marks, their level of eduction and intelligence, and the degree of care they are likely to exercise in purchasing the goods;

(vi) the mode of purchase of the goods or placing orders for the goods; and,

(vii) any other surrounding circumstances.

23. There cannot be uniform criteria, factors and so each case needs to be decided on the basis of facts and circumstances of that case. In the case reported as 1969 (2) SCC 716 (F. H. Roche And Co. v. G. Manner And Co.) on which reliance was placed by the learned counsel for the appellants, question had arisen as to whether the word "Dropovit" was deceptively similar to the word "Protovit". It was held that there was no similarity between two words. It was held that terminal syllable "VIT" was both descriptive and common in the trade and it appears in almost all vitamin preparations. It was held that the word "Dropovit" can be treated as invented word because this word is not descriptive if considered in entirety. It was held that there was difference in the pronunciation of the aforesaid two words and so they were wholly dissimilar.

24. The word "JEEWANDROP" from the present matter can be dissected in two parts viz. "Jeevan" and "drop". "Jeevan" is dictionary word used both in Marathi and Hindi and its meaning is "life" for both Marathi and Hindi language. The word "drop" is also dictionary word though in English and it is used to describe small portion of liquid (not necessarily water). On the other hand, the word "JALDROP" can be dissected in two parties viz "Jal" and "drop". The word "Jal" is dictionary word for both Marathi and Hindi language and its meaning is water. Thus there is no similarity in the two words like "Jal" and "Jeevan" in appearance, in pronunciation or in meaning.

25. In the present matter record is produced by the appellants to the effect that the word "Jeevan" has been used separately and also in combination with other words including English word for many years in class 5 of the goods. Recently for similar product of water disinfectant, trade mark is registered as "NIRMAL JIVAN DROPS DRINKING WATER DISINFECTANT". This application was made by the proprietor of this trade mark on 19-5-2011 though it was registered in the year 2015. It is registered as water disinfectant and in the background of the words there are drops falling in pool of water.

26. Both the plaintiff and defendants are selling chemical substance (Sodium Hypochlorite Solution). They have not invented this substance and they are not claiming that they have discovered the property like "disinfectant". They claim to be manufacturer but anybody can manufacture and market such chemical substance by giving own name to the substance and by describing it as water disinfectant. The manner of use of the substance is also not different as few drops of this substance are required to be used as disinfectant for particular quantity of water.

27. For the purpose of proving the infringement of registered trade mark, it was necessary for the plaintiff to show that there is over all similarity. It can be said that there are more dissimilarities than the similarities. Idea behind the two products may be the same but that cannot make much difference in the matters involving such substance.

28. If the bottles of the plaintiff and the defendant are seen one after the other, it can be said that the bottles of the defendants are appearing sky blue in colour due to colour used on the labels. Bottles of the plaintiff are appearing white. On the bottles of the plaintiff the word 'JEEVANDROP" is used in English in blue colour and the word is overlapped by device, a drop of water. On the other hand, the defendant has used the drop of water as alphabet "O" in the word "drop". This drop is appearing as falling in pool of water. No such pool of water is in existence on the label of the plaintiff. The plaintiff has described the substance as "Drinking Water Disinfectant" and the defendant has described the substance as "Unique Water Disinfectant". On the bottles of the plaintiff there is a blue colour strip at bottom and on it the aforesaid description of the substance is written but such strip has green colour on the bottles of the defendants. Names of manufacturers are different and on the bottles of the defendant the name of agency marketing the product is also there when there is no such name on the bottles of the plaintiff. Manufacturer of the bottle of plaintiff is shown from Newasa (Maharashtra) and the manufacturer of the defendant is shown from Ahmedabad (Gujarat). Trade mark of the plaintiff is shown as registered by mark "R". As against the trade mark of the defendant, the words "TM" are written to show that the trade mark is under process of registration. The bottles of the defendant show that there is certification obtained of ISO and its number is written on the bottles of the defendant. No such certificate is obtained by the plaintiff. Only on one bottle of the defendant, which was shown to be manufactured on 31-12-2014, there is blue strip at the bottom over which the description of the substance is given and on this bottle the word "JALDROP" was written in blue colour when on other bottles this word is written in red colour by the defendant. In the para of cause of action of the plaint, the plaintiff has contended that he learnt about the product of the defendant in March 2015 and cash memo of a bottle of year 2015 is produced by plaintiff. Learned counsel appearing for the defendants made submission that the defendants are not manufacturing or marketing the bottles like the bottle shown to be manufactured on 31-12- 2014. Written undertaking is also filed in that regard. When plaintiff has registered the word "JEEVANDROP" as trade mark and it is not as a devise and when there are aforesaid circumstances, it is not possible to infer that there is infringement of the registered trade mark of the plaintiff.

29. In view of the law already quoted, the defence of difference in trade mark is more forceful in passing off action. The defendant has shown that the matter on his label is different from the matter appearing on the label of the plaintiff. It is already observed that appearance of the bottle of the defendant is different and the appearance is sufficient to distinguish the goods of the defendant from the goods of the plaintiff. Further for giving the relief in action of passing off, misrepresentation needs to be made out by the plaintiff. The aforesaid circumstances do not make out the case of calculated misrepresentation. It is already observed that a simple chemical substance is being sold by both sides by giving different names. The aforesaid circumstances show that the defendants have their own network of distribution and sale when on the bottles of the plaintiff even name of distributor is absent. In such a case, prospective purchaser is not illiterate person. The customer would purchase the chemical substance, sodium hydrochloride solution as it is to be used as drinking water disinfectant. Like ALAM or potassium permanganate such substance can be ordered. The name of the manufacturer or even distributor would not make much difference for the purchaser. Thus, there is no requirement of possibility of misrepresentation for selling such product.

30. The learned counsel for the plaintiff, respondent submitted that the trial Court has used the discretion and so it is not desirable for the appellate Court to interfere in such order. This submission is not acceptable in the present case as the trial Court has not considered the aforesaid peculiar circumstances of the present matter. This Court holds that interference is warranted in the present matter. Granting of temporary injunction in such case is serious matter and it prevents the manufacturer from manufacturing the substance and from marketing it. Such action comes in the way of fair competition. It appears that the trial Court was influenced due to circumstance like registration of trade mark by plaintiff and the circumstance that in the past defendant No.2 was working as distributor in respect of the same product of the plaintiff. There is clear possibility that the plaintiff has got frustrated as his sale must have come down after removal of defendant No.2 from his own business. The defendants have every right to manufacture and sell such substance. No strong prima facie case is made out by the plaintiff for getting relief of temporary injunction. It appears that the trial Court had granted ex parte relief on the basis of aforesaid contentions even when there was no record with the plaintiff to show the loss sustained by him and to make out the case of deceptive similarity. In view of the peculiar facts and circumstances of the present case, this Court holds that no relief of temporary injunction can be granted in favour of the plaintiff. In the result, following order :-

31. The appeal is allowed. The order made by the trial Court on temporary injunction application is set aside. The application is rejected. Interim relief is vacated. Civil Applications are disposed of.

32. The learned counsel for original plaintiff submitted that interim relief has been in existence for about five months and he wants to challenge the decision of this Court. He wants extension of interim relief.

33. Interim relief is to continue for the period of one month from today.

Appeal allowed.