Rajasthan High Court - Jodhpur
M/S Bombay Plaster Industries vs M/S Jagdamba Plaster on 3 January, 2018
Equivalent citations: AIR 2018 RAJASTHAN 57, (2018) 1 RAJ LW 160, (2018) 2 WLC (RAJ) 162, (2018) 4 CIVLJ 568
Author: P.K. Lohra
Bench: P.K. Lohra
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Misc. Appeal No. 1097 / 2017
M/s Bombay Plaster Industries through Proprietor Shri Ramuram
Chaudhary, age 44 years, address Balar Road, 4 K.M. Stone,
Dantor, Khajhuwala, Distt. Bikaner (Raj.)
----Appellant
Versus
M/s Jagdamba Plaster through Partner Bhanwarlal, address Chak
22 BLD, Khajhuwala, Distt. Bikaner (Raj.)
----Respondent
Connected With
S.B. Civil Misc. Appeal No. 1096 / 2017
M/s Bombay Plaster Industries through Proprietor Shri Ramuram
Chaudhary, age 44 years, address Balar Road, 4 K.M. Stone,
Dantor, Khajhuwala, Distt. Bikaner (Raj.)
----Appellant
Versus
M/s Raj Plaster Industries through Proprietor Bheraram, address
Chak 7, SSM (Siyasar Chuogan), Khajuwala, Distt. Bikaner (Raj.)
----Respondent
_____________________________________________________
For Appellant(s) : Dr. Ashok Soni
For Respondent(s) : Mr. Rajeev Purohit and Mr. R.C. Joshi
_____________________________________________________
HON'BLE MR. JUSTICE P.K. LOHRA
Judgment 3rd January, 2018 Reportable Appellant has preferred these two separate appeals under Order 43 Rule 1(r) read with Section 104 CPC to assail order dated 17th of March 2017, passed by Addl. District Judge No.4, Bikaner (for short, 'learned trial Court'), rejecting its applications, for temporary injunction in two suits for perpetual and mandatory injunction, by a common order.
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2. Succinctly stated, the facts of case are that appellant- plaintiff, while complaining infringement of its intellectual property rights (IPR), emanated from Trade Marks Act, 1999 (for short, 'Act of 1999') and Copyright Act, 1957 (for short, 'Act of 1957'), instituted civil suits against both the respondents for perpetual and mandatory injunction, inter-alia, on the ground that it is a manufacturer of plaster of paris and got registration of the said product under the Act of 1999 and Act of 1957 with label "Hi- Tech". It is further averred in the plaints that appellant-plaintiff is using the said label on carry-bags for outer packaging of goods displaying in English "Hi-Tech" beneath which word Gypsum is written and in the bottom there is pictorial display of a building in round circle and just on the bottom to this "Hi-Tech" Gypsum is written in green clour background. Appellant further asserted in the plaints that being owner and proprietor of artistic features imbibed in the said trademark, it holds copyright therein under Registration No.A-110645/2014 dated 19th of May 2014. Laying emphasis that the features involved in the said trademark label are original in character, the appellant-plaintiff has further asserted in the plaints that it is exclusive owner of the same within the meaning of Act of 1957. Boosting its reputation in the market, appellant-plaintiff has pleaded in both the plaints that its product under the aforesaid trademark/label has acquired acclaimed goodwill and enviable reputation in the market so as to built up a handsome and valuable trade thereunder.
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3. Castigating the respondent-defendants for imitating its trademark/label on their goods, plaster of paris and by deceptively using similar labels on their goods marked "Hi-Techi"
and "I-Tek", both of them have violated the Act of 1999 and also the Act of 1957. Harping on the similarity in the labels of respondents, it is pleaded in the plaints that both of them have slavishly copied the label trademark of appellant-plaintiff by using similar label, distinctive combination - light green and orange combination of colour alongwith same style of display of building with prominent label mark on their own. Taking serious exception to the acts and omissions of the respondent-defendants, appellant has also pleaded in the plaints that their action is dishonest, malafide and fraudulent. It is also stated that the appellant-
plaintiff is having no control over the quality of goods of respondent-defendants and therefore due to overall resemblance of label with colour combination, lay out and arrangement of features on the carry-bags of respondents, there is every likelihood of misconception and deception at the cost of appellant's loss of goodwill and reputation in the market.
With all these positive assertions, appellant has prayed for grant of perpetual injunction in mandatory form against the respondent-defendants in both the suits.
4. The suits filed by the appellant-plaintiff were also accompanying applications for temporary injunction under Order 39 Rule 1 & 2 read with Section 151 CPC. While reiterating all (4 of 21) [ CMA-1097/2017] the allegations made in the plaints, appellant prayed for temporary injunction against both the respondent-defendants not to use resembling label trademarks for their products pending decisions of the suits. In the application for temporary injunction, appellant pleaded requisite facts for proving prima facie case in its favour and also made endeavour to establish existence of two other necessary ingredients for grant of temporary injunction, viz., balance of convenience and irreparable loss. The applications for temporary injunction are duly supported by the affidavits of proprietor of appellant firm.
5. Respondent M/s. Jagdamba Plaster Industries contested the application for temporary injunction by submitting its reply refuting all the allegations contained therein. It is also averred in the return that respondent is involved in business of gypsum and its by-products since last so many years and trademark of its product "I-Tek" has earned reputation within a short span. It is also pleaded in the reply that Registrar of Trademarks, Ahmedabad, upon consideration of its application has issued certificate in its favour and entire proceedings initiated by the appellant-plaintiff are actuated with malice to wreck personal vengeance. With all these assertions, respondent-defendant prayed for rejection of temporary injunction application. In support of reply, on behalf of respondent M/s. Jagdamba Plaster Industries, affidavit of Sahi Ram is tendered.
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6. Likewise, respondent-defendant M/s. Raj Plaster Industries also contested the application for temporary injunction by submitting its reply. In the return, it is pleaded by respondent M/s. Raj Plaster Industries that label trademark "Hi-Tech" is a generic word, commonly used by umpteen number of persons, inasmuch as, Google website depicts in all 13,10,000 users of the said generic word. The respondent also averred in the return that in India many companies, commercial establishments, organizations and institutions are using the said term uninterruptedly. The respondent also asserted that it is legally entitled to use copyright of "Hi-Techi". It is further pleaded that in the earlier suit with identical prayers accompanying application for temporary injunction upon refusal of injunction, appellant preferred an appeal before this Court but the same was dismissed as such appellant is not entitled for grant of injunction.
7. The learned trial Court, after hearing arguments of rival parties, by a common impugned order, rejected both the applications of appellant for temporary injunction. Upon examining the matter, learned trial Court has found that appellant has failed to make out a prima facie case in its favour. While recording its finding on prima facie case, learned trial Court declined to examine minutely passing off action and deceptive similarity in the name of both the products as well as factum of prior user of the trademark by the appellant by observing that these aspects can be adjudicated in the main suit after taking (6 of 21) [ CMA-1097/2017] evidence of the rival parties. However, learned trial Court, while concurring with the submissions of respondent M/s. Raj Plaster Industries, prima facie found "Hi-Tech" a generic word. That apart, the learned trial Court also concluded that design, colour combination and style of the labels of the rival parties are also prima facie different and cannot be termed as "deceptively similar". Relying on the finding regarding prima facie case, learned trial Court also recorded its finding on the other two necessary ingredients for grant of temporary injunction against the appellant-plaintiff, which eventually entailed rejection of both the applications for temporary injunction.
8. Learned counsel for the appellant, Dr. Ashok Soni, has strenuously urged that learned trial Court while passing the impugned order miserably failed to examine subject matter of both the suits in right perspective. Learned counsel, therefore, would contend that impugned order is perverse and passed in ignorance of settled principles of law regulating grant or refusal of interlocutory injunctions. Dr. Soni, learned counsel, submits that although grant or refusal of temporary injunction in exercise of its discretion is the prerogative of the court of first instance but the court when exercises such discretion arbitrarily or capriciously, as in the instant case, interference by the appellate Court is warranted. Learned counsel has urged that the learned trial Court has failed to appreciate intellectual property rights of the appellant inasmuch as registration of its trademark and copyright (7 of 21) [ CMA-1097/2017] for the product of gypsum is not at all discussed in the impugned order. Dr. Soni, learned counsel for the appellant, contends that label marks of the respondents are deceptively similar to the appellant and appellant is prior user of the trademark are some of the vital issues which have not been addressed by the learned trial Court in the impugned order and that has rendered it per se vulnerable.
9. It is also argued by learned counsel that the learned trial Court has seriously erred in laying undue emphasis on "Hi-Tech"
as the generic word for non suiting the appellant. Learned counsel for the appellant further submits that the learned trial Court has not recorded any finding worth the name on two other necessary ingredients for grant of temporary injunction; which are balance of convenience and irreparable loss, therefore, the impugned order is clearly vitiated. Dr. Soni would urge that when an aggrieved party alleges violation of intellectual property rights emanating from the Act of 1999 and Act of 1957, its concern for future probable injury at the hands of erring party is material besides injury in vogue but this pivotal issue, relevant and germane to the matter, is completely eschewed by the learned trial Court. Lastly, learned counsel has submitted that the learned trial Court has completely misconstrued legal propositions adumbrated in various authoritative pronouncements besides ignoring disguised description, colour combination, lay out and arrangement of features on the labels/marks used by the (8 of 21) [ CMA-1097/2017] respondents.
10. In support of his various contentions, learned counsel for the appellant has placed reliance on following judgments:
1. Kaviraj Pandit Durga Dutt Sharma Vs. Navratna Pharmaceutical Laboratories (AIR 1965 SC 980)
2. Ciba Limited Basle Switzerland Vs. M. Ramalingam and S. Subramaniam trading in the name of South Indian Manufacturing Co., Madura & Anr. [AIR 1958 Bombay 56 (DB)]
3. T.V. Venugopal Vs. Ushodaya Enterprises Ltd.
& Anr. [(2011) 4 SCC 85]
4. Indian Performing Rights Society Ltd. vs. Sanjay Dalia & Ors. [(2015) 10 SCC 161]
5. S. Syed Mohideen Vs. P. Sulochana Bai [(2016) 2 SCC 683]
6. Laxmikant V. Patel Vs. Chetanbhai Shah & Ors. [(2002) 3 SCC 65]
7. Heinz Italia & Anr. Vs. Dabur India Ltd.
[(2007) 6 SCC 1]
8. Parle products (P) Ltd. Vs. J.P. & Co. Mysore [(1972) 1 SCC 618]
9. Societe Des Produits Nestle Vs. Continental Coffee Ltd. [2012 (49) PTC 46 (Del.)]
10. Kaira District Co-op Milk Producers Union Ltd.
Vs. Bharat Confectionery Works (Regd.) [PTC (supp)(1) 615 (Del.)]
11. Messer Holdings Limited Vs. Shyam Madanmohan Ruia & Ors. [(2016) 11 SCC 484].
12. Rameshchandra Paliwal Vs. Sima & Company [2017 (70) PTC 293 (Raj.)].
13. M/s. Pandit Kulfi & Cafe Vs. M/s. Pandit Kulfi [AIR 2015 (Raj.) 218].
14. Maheshwari Tea Co. Vs. Vijay Agencies [2016 (67) PTC 116 (Raj.)]
15. Sabko Ind. Vs. Avon Emery [2007 (35) PTC 533 (Raj.)]
16. Bengal Waterproof Ltd. Vs. Bombay Waterproof Mfg. Co. & Anr. [(1997) 1 SCC 99].
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11. Per contra, learned counsel for respondent M/s. Raj Plaster Industries, Mr. Rajeev Purohit, submits that expression "Hi-Tech" is a generic word used by umpteen number of companies, commercial establishments, organizations and institutions which per se cannot be categorized as deceptively similar mark. Learned counsel, Mr. Purohit, would contend that the respondent for promoting its product is using the label with prefix "Hi-Techi", and therefore, the same is different and distinct from the trademark of appellant. While strenuously defending the impugned order, learned counsel contends that a discretionary order passed by the learned trial Court in exercise of its jurisdiction appropriately calls for no interference. It is also urged by learned counsel that grant or refusal of interlocutory injunction, being the exclusive jurisdiction and prerogative of the Court of first instance, warrants no interference by the appellate Court for substituting its view in a routine manner. Learned counsel Mr. Purohit has argued that earlier for identical reliefs civil suit was filed by the appellant against the respondent and prayer for interlocutory injunction was also made but the same was declined by trial Court and appeal against the said order is also dismissed by this Court, sufficiently demonstrates that the respondent is using the mark/label for its goods for last almost five years uninterruptedly, therefore, on equitable considerations also appellant is not entitled for temporary injunction. Elaborating his submissions in this behalf, learned counsel would urge that though appellant has withdrawn the suit with liberty to file fresh but then (10 of 21) [ CMA-1097/2017] passage of good deal of time is vital in the matter of grant of equitable relief like temporary injunction.
12. Mr. Purohit further submits that the respondent is having copyright registration for mark/label, which was accorded on 9 th of October 2015 by the Registrar of Copyrights and the said order is appealable under Section 72 of the Act of 1957, therefore, the suit filed by appellant itself is not maintainable by virtue of Section 41(h) of the Specific Relief Act, 1963. Learned counsel submits that when equally efficacious remedy is available to the appellant against copyright registration of the respondent, maintainability of the suit itself is under cloud and therefore prayer for grant of temporary injunction is not tenable. Learned counsel Mr. Purohit has also taken shelter of Order 2 Rule 3 CPC and urged that suit of the appellant is not maintainable on the anvil of misjoinder of causes of action inasmuch as composite suit complaining infringement of the Act of 1999 and Act of 1957 is not tenable. He, therefore, submits that in that background interference with the discretionary order of the learned trial Court is not warranted.
13. Lastly, learned counsel has urged that there is nothing on record to show that use of label/mark "Hi-Techi" by the respondent has not caused any loss or inconvenience to the appellant and therefore the other two necessary ingredients, viz., balance of convenience and irreparable loss are conspicuously missing in the matter, which is sufficient to repudiate the instant appeal. In (11 of 21) [ CMA-1097/2017] support of his arguments, learned counsel Mr. Purohit has placed reliance on following judgments:
1. Skyline Education Institute (India) Private Ltd. Vs. S.L. Vaswani & Anr. [(2010) 2 SCC 142
2. Dhodha House Vs. S.K. Maingi [(2006) 9 SCC 41]
3. Dabur India Ltd. Vs. K.R. Industries (AIR 2008 SC 3123)
4. Mohan Lal, Proprietor of Mourya Industries Vs. Sona Paint & Hardwares (AIR 2013 Delhi 143).
14. Mr. R.C. Joshi, learned counsel for respondent M/s. Jagdamba Plaster has by and large reiterated the arguments advanced by Mr. Rajeev Purohit. Supplementing his contentions, Mr. Joshi would contend that label/mark of the respondent "I-Tek"
by no stretch of imagination can be categorized as similar to the trademark of appellant. Mr. Joshi would urge that argument of the learned counsel for the appellant that mark/label of the respondent is deceptively similar to the trademark "Hi-Tech", does not sound prudency and therefore no interference with the impugned order is warranted.
15. I have given my thoughtful consideration to the arguments advanced at Bar, perused the impugned order and other material available on record.
16. The question sought to be raised in these appeals essentially encompass the alleged infringement/violation of intellectual property rights of the appellant, which are emanating from the Act (12 of 21) [ CMA-1097/2017] of 1999 and Act of 1957. Besides that, the Court is also required to examine the legality and propriety of the impugned order in exercise of its appellate jurisdiction, which is not akin to a regular first appeal but an appeal on principle. Indisputably, grant or refusal of interlocutory injunction is within the discretion of the Court of first instance and appellate Court's power to interfere with the said discretion is very much limited and circumscribed.
17. Precisely, grievance of the appellant in both the suits is founded on a specific allegation that respondents are using their marks/labels deceptively similar to that of the appellant. While harping on registered trademark of "Hi-Tech" in its name and copyright for the same, appellant's endeavour is to prevent commercial dishonesty on the part of respondents. The respondents are essentially concurring with the appellant about its trademark "Hi-Tech" and copyright registration but they have vehemently opposed the insinuations of the appellant about their commercial dishonesty. At the outset, upon examining the mark/label, colour combination and other features with trade name of the product, I am at loss to say that the expression "I- Tek" used on its products or goods by respondent M/s. Jagdamba Plaster does not appear to be similar to the label trademark of appellant. While it is true that colour combination of both the label/trademarks is identical but the other features are distinctively dissimilar. The design, style, lay out and arrangement of features in both the label trademarks are per se at variance.
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18. The pertinent question is whether the label trademark of respondent is deceptively similar to the trademark of appellant or it is an affirmative attempt to create "likelihood of confusion"
among customers. There is no material placed on record by the appellant to show that label trademark of the respondent has created "likelihood of confusion". True it is that Court while adjudicating upon "likelihood of confusion" cannot outrightly discard it as fallible or unreliable but then with the advent of modern technology it suggests imposition of higher threshold upon the suitor. Therefore, I am afraid, in the backdrop of peculiar facts and circumstances of the instant case, appellant-plaintiff's claim of "passing off action" against respondent-defendant per se cannot be accepted. Furthermore, in my view, use of single colour cannot be treated as inherently distinctive so as to prima facie castigate the respondent for commercial dishonesty. The learned trial Court has made sincere endeavour to address on this aspect of the matter while recording its negative finding on prima facie case and the said finding, therefore, cannot be faulted.
19. Now switching on to the label trademark of other respondent M/s. Raj Plaster Industries, suffice it to observe that it has used the expression "Hi-Techi" which is quite identical to the label trademark of the appellant "Hi-Tech". Besides that, the lay out, colour combination and other features are also having some resemblance in the label trademarks. Be that as it may, prima (14 of 21) [ CMA-1097/2017] facie, it would be rather difficult to comprehend that label trademark of the respondent is deceptively similar to that of the appellant. Therefore, the question that it may create likelihood of confusion among consumers, as the product of appellant, would be rather difficult to visualize at this stage in want of cogent material furnished by appellant-plaintiff. The passage of time, which is almost five years and sans available data that appellant has suffered loss of its goodwill much less pecuniary loss, it cannot be said that respondent has promoted sales of its goods/products at the cost of goodwill of the appellant.
20. There remains no quarrel that when a party is complaining infringement of its intellectual property rights, it is entitled to invoke legal doctrine of quia timet to seek equitable relief for future probable harm to a specific right or interest but then equity favours vigilant and not indolent. As there was no restraint order against the respondent for last almost five years and the learned trial Court while taking into account that aspect has declined equitable relief to the appellant, I do not find any infirmity in the impugned order on this angle. The future anticipated loss, if any, is not forthcoming from the material available on record and can only be finally adjudicated after full-fledged trial of the suit, as rightly observed by the learned trial Court.
21. Supreme Court in its latest verdict, Toyota Jidosha Kabushiki Kaisha Vs. Prius Auto Industries Ltd. & Ors. (Civil Appeal Nos. 5375-5377 of 2017, decided on 14.12.2017), though in a different (15 of 21) [ CMA-1097/2017] context, non-suited plaintiff for its delayed approach to the Court but then observed that undue delay and laches on the part of plaintiff cannot be allowed to work to the prejudice of defendant. In the present matters, appellant/plaintiff earlier filed two separate suits against respondents in the year 2013, which were eventually withdrawn with liberty to file fresh on 29 th of March 2016 and during pendency of both these suits no injunction order remained in operation. As a matter of fact, in both the suits learned trial Court declined prayer for temporary injunction and then appeal against those orders was also dismissed by this Court. While it is true that appellant filed fresh suits after seeking liberty of the learned trial Court at the time of withdrawal of earlier suits but then there is no plausible explanation for delayed action on the part of appellant-plaintiff in the fresh suits. Though the appellant-plaintiff has shown recurring cause of action but the first cause of action relates back to October 2013, which sufficiently demonstrates delayed action on the part of appellant, therefore, in that context, following observations of the Supreme Court in Toyota Jidosha Kabushiki Kaisha (supra) have acquired significance and are quoted hereinbelow:
"If goodwill or reputation in the particular jurisdiction (in India) is not established by the Plaintiff, no other issue really would need any further examination to determine the extent of the Plaintiff's right in the action of passing off that it had brought against the Defendants in the Delhi High Court. Consequently, even if we are to disagree with the view of the Division Bench of the High Court in accepting the Defendant's version of the origin of the mark 'Prius', the eventual conclusion of the Division Bench will, nonetheless, have to be sustained. We cannot help but also to (16 of 21) [ CMA-1097/2017] observe that in the present case the Plaintiff's delayed approach to the Courts has remained unexplained. Such delay cannot be allowed to work to the prejudice of the Defendants who had kept on using its registered mark to market its goods during the inordinately long period of silence maintained by the Plaintiff."
22. As observed supra, colour of a label trademark cannot be exclusive right of any one for prima facie ascertaining deceptive similarities and, as such, other aspects, namely, arrangement of features, design, layout and style of logo, cannot be underplayed. Upon examining both the label trademarks, in want of requisite material, it is rather difficult at this stage to infer "likelihood of confusion" among customers and invoke doctrine of "Quia timet".
23. The objection of the respondent, that expression "High-tech"
is a generic word, too cannot lose sight of the Court. Word "High-
tech" is used by many companies, business establishments and organizations in India is an undisputed fact rather than an embellished projection of respondent. Well it is true that generic word cannot be construed as panacea of all ills in case erring party's action of deceit or unfair trade practice is traceable.
Therefore, use of identical word or words with dishonest intention and bad faith are pre-requisite for passing restraining order against the defendant to do equitable justice to the suitor.
Supreme Court in T.V. Venugopal (supra), while considering generic word, made following observations:
"The contention of the Defendant is that adjectives are normally descriptive words and nouns are generic word. However, McCarthy has said that (17 of 21) [ CMA-1097/2017] the said "part of speech" test does not accurately describes the case law results. therefore, such a criteria cannot be accepted as a safe and sound basis to ascertain as to whether a particular name is generic or descriptive. Besides, even assuming that the said word is generic yet if it is found by the court that such a mark has attained distinctiveness and is associated with the business of the Plaintiff for considerable time and thereafter the Defendant adopts a similar word as one of his two marks to induce innocent internet users to come to the website of the Defendant, which establishes dishonest intention and bad faith, would the court still be not granting injunction to protect the business of the Plaintiff? The answer to the said question has to be an emphatic 'No". User of similar word by a competitor coupled with dishonest intention and bad faith would empower a court to restrain such user/misuser to do equitable justice to the aggrieved party."
From the available material, prima facie, dishonest intention or bad faith of the respondent is not discernible. Thus, the judgment in T.V. Venugopal (supra) is clearly distinguishable.
24. At this juncture, it would be appropriate to refer the three Judge bench decision of the Supreme Court in Skyline Education Institute (India) Private Ltd. (supra). In this verdict, Apex Court, discussed generic word "skyline" threadbare, and held:
"In our opinion, the findings recorded by the learned Single Judge and Division Bench on the crucial factors like prima facie case, balance of convenience and equity are based on a correct and balanced consideration of various facets of the case and it is not possible to find any fault with the conclusions recorded by them that it is not a fit case for restraining the respondents from using the word 'Skyline' in the name of the institute established by them. It has not been disputed on behalf of the appellant that the word 'Skyline' is being used as trade name by various companies/ organizations/business concerns and also for describing different types of institute/institutions.
(18 of 21) [ CMA-1097/2017] The voluminous record produced by the respondents before this Court shows that in India as many as 117 companies including computer and software companies and institutions are operating by using word 'Skyline' as part of their name/nomenclature. In United States of America, at least 10 educational/training institutions are operating with different names using 'Skyline' as the first word. In United Kingdom also two such institutions are operating. In view of this, it is not possible to agree with the learned Counsel for the appellant that the Skyline is not a generic word but is a specific word and his client has right to use that word to the exclusion of others."
25. Some of the judgments mentioned supra, relied upon by the learned counsel for the appellant to articulate his submissions, were carefully gone through by me in the light of lis involved. Fully endorsing the legal proposition adumbrated therein, I feel disinclined to discuss these precedents in detail at this stage. However, in the backdrop of fact scenario of both these appeals, legal precedents are clearly distinguishable and therefore render no assistance to the cause of appellant. Vulnerability of the impugned order sought to be poised by the learned counsel for the appellant with left-handed compliments, if objectively examined, then too it is not possible to trace out any infirmity in the impugned order. Injunctory relief being equitable is surely available to an aggrieved party for protecting its legal rights and also for protecting intellectual property rights on the anvil of doctrine quia timet but not at the cost of creating monopoly in business or other fields much less jeopardizing business of others.
26. Now, I propose to examine ambit and scope of judicial review in an appeal against order refusing or granting (19 of 21) [ CMA-1097/2017] interlocutory injunction. There remains no quarrel that appeal under Order 43 Rule 1 CPC is not akin to a regular first appeal and essentially it is an appeal on principle. Scope of judicial review in these appeals is very much limited and the appellate Court cannot interfere with the discretion of the trial Court and substitute its own discretion even if two views are possible. Interference by the appellate Court is only warranted when the lower Court acts arbitrarily or perversely, capriciously or dehors sound legal principles or without considering relevant record.
27. My view is fortified by a decision of Supreme Court in Wander Ltd. & Anr. Vs. Antox India P. Ltd. [1990 (Supp) SCC 727], wherein Court, while examining question relating to refusal or grant of temporary injunction in a suit based on alleged invasion of intellectual property rights, held:
"In such appeals, the appellate court will not interfere with the exercise of discretion of the court of first instance and substitute its own discretion except where the discretion has been shown to have been exercised arbitrarily, or capriciously or perversely or where the court had ignored the settled principles of law regulating grant or refusal of interlocutory injunctions. An appeal against exercise of discretion is said to be an appeal on principle. Appellate Court will not reassess the material and seek to reach a conclusion different from the one reached by the court below if the one reached by that court was reasonably possible on the material. The appellate court would normally not be justified in interfering with the exercise of discretion under appeal solely on the ground that if it had considered the matter at the trial stage it would have come to a contrary conclusion. If the discretion has been exercised by the trial court reasonably and in a judicial manner the fact that the appellate court would have taken a different view may not justify interference with the trial court's exercise of discretion."
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28. Likewise, in a latter judgment of Cadila Health Care Ltd. Vs. Cadila Pharmaceuticals Ltd. [(2001) 5 SCC 73], Court declined to interfere with the discretionary order of the trial Court refusing injunction. The Court further made a distinction between medicinal products and non-medicinal products in case of violation of trade mark law and observed:
"However, the appellants are right in contending that where medicinal products are involved, the test to be applied for adjudging the violation of trade mark law may not be on a par with cases involving non-medicinal products. A stricter approach should be adopted while applying the test to judge the possibility of confusion of one medicinal product for another by the consumer. While confusion in the case of non-medicinal products may only cause economic loss to the plaintiff, confusion between the two medicinal products may have disastrous effects on health and in some cases life itself. Stringent measures should be adopted specially where medicines are the medicines of last resort as any confusion in such medicines may be fatal or could have disastrous effects. The confusion as to the identity of the product itself could have dire effects on the public health."
In Skyline Education Institute (India) Private Ltd. (supra), Supreme Court reiterated its earlier view and held:
"The ratio of the abovenoted judgments is that once the court of first instance exercises its discretion to grant or refuse to grant relief of temporary injunction and the said exercise of discretion is based upon objective consideration of the material placed before the court and is supported by cogent reasons, the appellate court will be loath to interfere simply because on a de novo consideration of the matter it is possible for the appellate court to form a different opinion on the issues of prima facie case, balance of convenience, irreparable injury and equity."
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29. Therefore, upon examining the impugned order, I am unable to find any error much less manifest error of law and facts for exercising appellate jurisdiction enshrined under Order 43 Rule 1 CPC in both the appeals. However, taking into account the lis involved in both the suits about alleged violation of the Act of 1999 & Act of 1957 and passing off action, I feel persuaded to ensure expeditious disposal of the suits.
30. The upshot of above discussion is that both these appeals fail and are, therefore, dismissed. However, learned trial Court is directed to expedite trial in the suits and conclude the same as early as possible. It is clarified that the finding of fact recorded in these appeals are only for the purpose of temporary injunction, and therefore, the said finding shall have no ramification on final outcome of the main suits. The learned trial Court may decide the main suits dispassionately, uninfluenced by the observations made in this judgment solely on the basis of evidence produced before it.
31. Before parting, I record appreciation for Dr. Ashok Soni, Mr. Rajeev Purohit and Mr. R.C. Joshi, the learned counsels representing rival parties, for their invaluable assistance.
(P.K. LOHRA),J.