Vimal Dairy Limited vs Gujarat Tea Depot Company on 1 March, 2021

[Cites 55, Cited by 0]

Gujarat High Court

Vimal Dairy Limited vs Gujarat Tea Depot Company on 1 March, 2021

Intellectual Property Rights ("IPR" for short) are the rights give to Page 1 of 124 Downloaded on : Tue Mar 02 00:34:41 IST 2021 C/AO/2/2021 CAV JUDGMENT persons over the creation of their minds. Normally, they give the creator an exclusive right over the use of his / her creation for certain period of time. Though the IPR is not just right to exclude other from selling or using the own asset, it is also designated to provide holder with the right to argue or license the rights for commercial or other bona fide uses. Raison d'etre is to protect the intellectual and extraordinary invention / skill / goodwill of an individual, ultimately, enhance the field of GLOBAL TRADE. The quia timet action is the need of the hours, wherein one feels apprehension for the protection of his own rights (here, IPR) which may be taken away by others in different style.

Quia timet action has been described in Black's Law Dictionary as follows:

"Because he fears or apprehends. In equity practice, the technical name of a bill filed by a party who seeks the aid of a court of equity, because he fears some future probable injury to his rights or interests, and relief granted must depend on circumstances."

(B) Keeping in mind such two aspects, the facts in detail, in the present Appeal from Order are discussed as under. It is made clear, with the consent of both sides, matter is taken for final decision. Page 2 of 124 Downloaded on : Tue Mar 02 00:34:41 IST 2021 C/AO/2/2021 CAV JUDGMENT

1. The Appellant - Vimal Dairy Limited (Original Defendant) has filed this Appeal from Order under Order XLIII Rule 1(r) of the Code of Civil Procedure, 1908 for the following prayers:

"(A) To admit the present Appeal from Order (B) To quash and set-aside the order dated 11.12.2020, passed by the learned City Civil Court No. 29, Ahmedabad below Exh. 7 for interim injunction in Civil Suit No. 884/2020 and thereby be further pleased to dismiss the Notice of Motion at Exh. 7 moved by original plaintiffs- respondents herein.

(C) To permit the appellant to produce the list of documents and authorities, by way of separate paper book along with memo of the present Appeal from Order.

(D) Any other and further reliefs that Your Lordships may deem just, fit and expedient be granted in favour of the appellant."

2. Factual Remarks:

The present Respondents - Original Plaintiffs have preferred Civil Suit No. 884/2020 in the Ahmedabad City Civil Court at Ahmedabad, inter-

alia, praying for permanent injunction restraining the defendant and its agents from manufacturing, marketing advertising for Sales, the defendant's products under the Trademark /Label "VIMAL" "TM Application No. 4352164 including its Art Work, Colour Scheme, Get-

up, Arrangement and/or any other Label, which is substantial and Page 3 of 124 Downloaded on : Tue Mar 02 00:34:41 IST 2021 C/AO/2/2021 CAV JUDGMENT material reproduction of the label of the plaintiffs from committing an act of infringement of plaintiff's copy right registered label bearing No. A-

118473 / 20177 under the Copy Right Act. Plaintiffs also prayed to restrain the defendant from committing an act of infringement of the plaintiff's registered Trademark/labels and from committing an act of passing of the plaintiffs' trademarks/labels. Plaintiffs further prayed for directions to the defendant to give true and correct accounts of the goods manufactured and marketed by them under the trademark /label VIMAL and after verifying the accounts and deriving at the amount of the profit earned by the defendant, to pay the said amount with 18% interest. The suit is essentially filed for permanent injunction and seeking damages.

Respondents herein - Original Plaintiffs have filed an application for Temporary Injunction along with the suit under Order XXXIX Rule-1(a) of the Code of Civil Procedure, 1908 with similar reliefs prayed in the suit.

3. The Appellant / Original Defendant states and submits that the gist of the case of the plaintiffs can be described in nutshell to the effect that plaintiffs are using the trademark 'WAGH BAKRI' and they have acquired wide reputation and goodwill in the Tea Business. It is further the case of plaintiffs that they have been using and publishing various Page 4 of 124 Downloaded on : Tue Mar 02 00:34:41 IST 2021 C/AO/2/2021 CAV JUDGMENT labels containing the word 'WAGH BAKRI' as per the demand of the business. In view of the such demand, plaintiff No. 1 has first published one label / wrapper in the year 2013 in India under the title "WAGH BAKRI' Strong and Refreshing Premium Leaf Tea in English and Hindi languages and since, then plaintiffs are the first owners of the copy right of that Artistic work of the said label /trademark. The said label is having distinct colour scheme, get up and arrangement and as such, that arrangement are the material portions of the said label of plaintiffs. It is further the case of the plaintiffs that defendant has copied substantial and material reproduction of the Artistic work of the label of plaintiffs and thereby the defendant is committing an act of infringement of copyright under the provisions of the Copyright Act, 1957. It is further the case of plaintiffs that defendant has applied for the trademark on 19.11.2019 and legal notice was issued, which was replied by the defendant. Thereafter the present suit came to be filed.

Appellant herein- original defendant appeared and filed reply at Exh. 16 to the injunction application and also tendered list of documents, several judgments along with the written arguments.

4. It is the case of the defendant that Vimal Dairy Limited belongs to the well-known, well established and diversified popularly known as Vimal Group in Gujarat and other States. Vimal Group is actively engaged in the diversified activities of manufacturing and marketing of a Page 5 of 124 Downloaded on : Tue Mar 02 00:34:41 IST 2021 C/AO/2/2021 CAV JUDGMENT wide spectrum of products like Edible Refined Oils/De-Oiled Cakes, Milk and Milk products, Tea, Ice -Creams, Cables and Winding wires, Capacitors and Transformers, Submersible Pumps, Resings and Paints, Micronized Mineral Powder, Ceramic Tiles, Solar Panels etc. It is the case of the defendant that the company has acquired tremendous goodwill and market reputation among the trade, public and ultimate customers at large. Ii is further the case of the Appellant / Original Defendant that since inception of its business, the Appellant / Defendant Company is continuously, extensively, and uninterruptedly using the trademark and trade name VIMAL. It is further the case of the defendant that the suit filed by plaintiffs is devoid of merits on the ground that the defendant company is prominently using the trademark and trade name 'VIMAL' and not 'WAGH BAKRI'. It is further the case of the defendant that plaintiff's and defendants products are identified by their trade name respectively and the public at large identifies the goods of plaintiffs and defendant by their brand names or trade names. It is further the case of the defendant that there are various Tea brands in India, which are using Red, Blue and Green Colour as their label for the goods to describe the character, quality and intended purpose of the product. The goods such as Tea are never procured based on colour combination. Plaintiffs cannot claim exclusive right over the colours. It is further the case of the defendant that from the depiction in the labels, that the artwork, lay out, Page 6 of 124 Downloaded on : Tue Mar 02 00:34:41 IST 2021 C/AO/2/2021 CAV JUDGMENT getup and colour scheme are entirely different. Plaintiffs colour scheme is having saffron background along with essential feature of its mark i.e. 'WAGH BAKRI'. That public or consumers at large identify products with brand name 'WAGH BAKRI' and not through the get up, dress / packaging of the product. On the other hand, defendant's colour scheme is having dark orange background along with essential feature of its trade mark i.e. 'VIMAL'. There is an artwork of depiction of Tea Gardens in the backgrounds of the defendants trademark. It is further the case of the defendant that there are various traders who are using the above colour combination packaging to describe their tea product. It is further a case of the defendant that company is using the trademark / trade name 'VIMAL' in Red and White since the inception of the business. It is further the case of the defendant that the Orange colour used by the defendant company is a common colour and a naturally occurring colour in which no person can claim exclusive right on it. It is further the case of the defendant that both the marks are not phonetically similar. That 'VIMAL' and 'WAGH BAKRI' are phonetically, visually, conceptually, and structurally different from each other and there cannot be deception and confusion in the minds of consumers. Appellant states and submits that with the above and other several contentions, reply has been filed at Exh. 16 by the defendant.

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5. It is further contended that the learned City Civil Court No. 29, Ahmedabad, without appreciating the provisions of Trademarks Act, Copy Right Act in its true perspective and without appreciating the evidence on record and without considering the ratio laid down by the Hon'ble Courts in the judgments cited, has been pleased to allow the Notice of Motion at Exh. 7 by order dated 11.12.2020 and was further pleased to grant interim injunction as prayed for in terms of Para - 85(A), (B) and (C) against the defendant. The interim relief granted is in the nature of final relief.

6. Being aggrieved and dissatisfied with the order of below Exh. 7 dated 11.12.2020 passed by the City Civil Court No. 29, Ahmedabad, the appellant herein, begs to prefer the present Appeal from Order under Order -XLIII Rule- 1(r) of the Code of Civil Procedure, 1908.

(C)    Arguments of Both sides:
7.     Learned Advocate Mr. Mehul Sharad Shah for Appellant                         /

Original Defendant has submitted that the order passed by the learned trial Court is ex-facie, illegal, against the provisions of the Trademark Act and copyright Act and against the evidence on the record and therefore, requires to be quashed and set-aside. He further submitted that the learned trial Court has been pleased to grant temporary injunction in terms of Page 8 of 124 Downloaded on : Tue Mar 02 00:34:41 IST 2021 C/AO/2/2021 CAV JUDGMENT Paragraph - 85(A),(B) and (C) of the application, which is similarly worded as per the main relief in th suit in paragraph 85(A),(B) and (C) with the only exception that in the suit it was prayed for a permanent injunction whereas in the interim injunction application it was prayed for temporary injunction. It is respectfully submitted that relief granted by the learned trial Court is in the nature of final relief and nothing further remained in the suit. It is settled proposition of law that at interim stage relief cannot be granted which is in the nature of final relief.

8. It is further contended that the learned trial Court, after recording the contentions of both the parties, did not frame issues to grant temporary injunction. Not only that, but there is no separate finding recorded qua the three main ingredients. It is settled proposition of law that the discretion of the Court is exercised to grant a temporary injunction only when the requirements of existence of prima facie case, balance of convenience and irreparable loss are satisfied. It is incumbent upon the learned trial Court to record findings on each issue while appreciating the contention of plaintiffs and the defendant.

9. That learned advocate for the appellant submitted that there are following glaring defects surfacing in the order of interim injunction, which can be described in nutshell as under:-

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(A) The learned Trial Court has recorded the contentions of plaintiffs and defendant and various paragraphs of various judgments without recording the findings on the contentions raised by the parties.

(B) The learned trial Court has repoduced from page No. 42 to 65 and page - 68 to 91 only various paragraphs of judgments, without considerign its relevancy and thereby has given a bulky judgment without any cogent reasons.

(C) The learned trial Court has recorded the contentions of defendant from para 58 to 60, which is the main subject matter about using of similar colour on the packaging. Somehow, there is no finding recorded qua those important contentions raised in the above paragraphs and it remained unanswered.

(D) The finding was recorded in para-82 to the effect that, "This Court is of the prima facie opinion that plaintiffs have clearly established the essential ingredients namely, prior use, establishment of goodwill and reputation and chance of future loss by virtue of the use of such deceptively similar trade name or device and therefore, plaintiffs have prima facie case in their favour". It is an admitted fact that the trade Page 10 of 124 Downloaded on : Tue Mar 02 00:34:41 IST 2021 C/AO/2/2021 CAV JUDGMENT name of both the parties are not deceptively similar and distinctly different i.e. WAGH BAKRI AND VIMAL. Looking to the above findings, it is clear that what is considered is beyond the pleadings of parties. Therefore, it shows non-application of mind at the ends of entire discussion in the judgment.

(E) The learned trial court has committed grave error in observing that the defendant has not been able to produce any cogent evidence to establish that other parties were also using such colour scheme. It is submitted that the defendant has produced as many as 19 colour wrappers of different companies / tea vendors to show that they are using Orange colour for their packaging.

10. Learned Advocate for the Applicant has submitted that the learned trial court has committed a grave error in observing that the defendant has not been able to produce any cogent and clear evidence before this court to establish that third parties have been using the mark 'WAGH BAKRI' along with its colour scheme, get up, arrangement etc. It is further submitted by the learned Advocate for the Appellant / Original Defendant that the Appellant has produced as many as 19 colour wrappers of different companies / Tea vendors to show that they are using orange colour for their packaging and that the said evidence is discarded by Page 11 of 124 Downloaded on : Tue Mar 02 00:34:41 IST 2021 C/AO/2/2021 CAV JUDGMENT raising suspicion that whether those parties are still using the mark in question and prior to the use of plaintiffs. Rightly so, they cannot claim exclusive right over orange as it is naturally occurring colour. The colour orange is not a coined and inventive colour which is a most important factor in claiming exclusivity in intellectual property rights and therefore the Respondents / Original Plaintiffs cannot restrain the present Appellant from using orange colour on the package of Tea produced by the Appellant.

(D) Infringement of Copyright:

11. It is submitted that the label is not artistic work. No reputation or goodwill attached with the label but reputation is with trade name WAGHBAKRI. Label is also not an artistic work under Section 2(c) because, it is neither a painting nor sculpture nor a drawing nor photograph. It is merely a package prepared in computer. There cannot be an artistic work in a Orange Colour background and therefor since 'Orange Colour' cannot be terms as artistic work, any allegation of infringement of Copyright would not be maintainable.

12. It is submitted that Plaintiffs have alleged that Defendant has copied colour scheme, however it is pertinent to note that the label of Plaintiff does not contain any colour scheme, as it is sought to be Page 12 of 124 Downloaded on : Tue Mar 02 00:34:41 IST 2021 C/AO/2/2021 CAV JUDGMENT canvassed by the plaintiff and in fact the back ground is composed of only one colour, which cannot be said to be Artistic Work as per section 2(c) of Copyright Act. It is respectfully submitted that there is no artistic work in colour Orange. The logo of men with Goat and Tiger can be termed as an artistic work but not Orange colour or Cup or a Saucer. The orange colour, Cup and Saucer indicate that tea product is sold, which is commonly used by all tea traders and manufacturers. The literature as well as pictorial depiction in both the label are different, hence, the say of the Plaintiffs that, the defendant has committed infringement of Copyright is factually wrong.

13. It is submitted that plaintiffs have adopted many labels over the years. This particular label is in use only since 2020 as it is evident from the registration certificate. Therefore, there is no goodwill and reputation attached to this label.

14. Learned Advocate for the Appellant / Original Defendant has drawn the attention of this Court on Infringement of Trademark:

It is submitted that trademarks bearing registration no. 3075599, 4250078, 4250077 and 4250071 are pertaining to the 'WAGH BAKRI' and 'WAGH BAKRI STRONG AND REFRESHING PREMIUM TEA', Page 13 of 124 Downloaded on : Tue Mar 02 00:34:41 IST 2021 C/AO/2/2021 CAV JUDGMENT however, there is no trademark for the colour scheme and therefore no registration of colour orange or for colour scheme in favour of Plaintiffs.

Even otherwise 'orange colour' as a single colour is not capable of being considered as 'Trademark' and therefore plaintiffs are not entitled to institute suit for infringement of the such trademark.

15. That looking to the format of application of registration of trademark, it is evident that there are six options i.e. colour, device, shape of goods, sound, three dimensional work, work mark. It is an admitted fact that there is no registration of trademark in the category of "Colour". Not a single registration certificate is produced by the plaintiff showing that they have any registration of trademark in the category of Orange Colour.

16. It is submitted that under section 29, suit for infringement of trademark is permissible only if there is a use of such trademark in the course of trade and therefore when the suit is based on the apprehension, no cause of action has yet arisen for the plaintiffs to bring the suit and therefore said suit is not maintainable for lack of cause of action. In case where there is no cause of action for the suit, no injunction can be granted in favour of plaintiffs.

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17. Even otherwise there is no likelihood of customers being deceived or confused as the trading style/trademark of both the parties are different and hence public is made completely aware regarding the source of origin of packaging. It is submitted that tea is considered to be addictive food item and therefore regular user would purchase tea by their brand names and not by the colour scheme and therefore also there is no likelihood of confusion or deception as alleged by the Plaintiffs.

18. Learned Advocate for the Appellant has further drawn the attention of this this court on the Passing off Action:

It is submitted that passing off action is a remedy provided for the protection of goodwill and reputation of the particular business. It is submitted that as can be seen from the registered trademark of the plaintiffs, the only reputation and goodwill that is claimed by the Plaintiffs, pertains to 'WAGH BAKRI' and therefore no passing off action would be maintainable as trade names of both the parties are totally different. It is submitted that plaintiffs have not produced any document to prove that there is any goodwill in 'orange' colour and therefore no passing off action would be maintainable for the orange Page 15 of 124 Downloaded on : Tue Mar 02 00:34:41 IST 2021 C/AO/2/2021 CAV JUDGMENT colour.

It is respectfully submitted that Orange colour is generic in nature; there can be no exclusive rights for generic colour scheme as well as the get-

up, which is commonly used in the market by all the tea companies.

Therefore, the argument of the plaintiffs about unique get-up, leaf or cup and saucer on the label are not tenable as they are not coined or invented in nature by the plaintiffs. It cannot be considered as an essential feature for the plaintiffs' trademark as it is totally against Section 9 of the Act.

Learned Advocate for the Appellant / Original Defendant has submitted that that generic, descriptive, and common words cannot be protected unless and until it has acquired a secondary meaning. The customer will ask for a product from the name of the product and not from the colour of the product. Plaintiffs cannot claim their exclusive right on the features, which are description, commonly used not coined or invented in nature.

(E) Legal Aspects by the Learned Advocate Mr. Mehul Sharad Shah, for the Appellant / Original Defendant:

19. Learned Advocate for the Appellant / Original Defendant has placed reliance on the following judgments and submitted as under: Page 16 of 124 Downloaded on : Tue Mar 02 00:34:41 IST 2021 C/AO/2/2021 CAV JUDGMENT

(i) Britannia Industries Ltd. Vs. ITC Limited, reported in 2017(70) PTC p. 66 - more particularly referred to paragraph nos.

1, 2, 9, 19, 22, 23 and 24. Learned Advocate for the Appellant has submitted that in paragraph no. 23, it is observed as under:

"the appropriation of an exclusivity claimed vis-à-vis a get-

up and particularly a colouor combination stands on a different footing from a trade mark or a trade name because, colours and colour combinations are not inherently distinctively. It should, therefore, not be easy for a person to claim exclusivity over a colour combination particularly when the same has been in use only for a short while".

(ii) Cipla Limited Vs. M.K. Pharmaceuticals, reported in 2008 (36) PTC, 166 - He has submitted that the court in paragraph 5 has observed as under:

"Whether defendant can copy the colour of plaintiffs' tablets and shape of the plaintiffs' tablets? It is settled law that there can be no monopoly over colours. Merely because plaintiff has started using a particular colour for its tablets, plaintiff does not get monopoly over colour so that no one else can use that colour. The medicines are not bought by colours by the customers......."

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(iii) Colgate Palmolive Company Vs. Patel & others reported in 2005 Law Suits (Delhi) 1540 - He has referred to paragraph Nos. 25, 29, 31, 33, 41, 42 and submitted that the Hon'ble Court has observed in paragraph nos. 31 and 32 as under:

".....In the instant case too the colour combination of red and white on its own, does not identify the source of the product since the red and white colour combination is quite generic in nature and common to toothpaste trade as demonstrated by the various products and their labels relied upon by the defendant. Moreover, there is nothing innovative or distinctive in using the "colour white" for writing the word mark "COLGATE', since white is a colour commonly used for writing Alphabets/Numerals on coloured backgrounds.

32. ...... The defendants had contended that in the toothpaste trade the colour combination of red and white is common to the trade. The defendant had given a list of 16 Indian and 8 international toothpastes along with their annexed labels to establish the common occurrence of red colour as well as red and white colour combination in the toothpaste industry. Furthermore, it is the plaintiff who has claimed that it is a world leader in toothpaste trade and has referred Page 18 of 124 Downloaded on : Tue Mar 02 00:34:41 IST 2021 C/AO/2/2021 CAV JUDGMENT to its worldwide presence in the toothpaste market so as to inter alia establish its transborder reputation. In this view of the matter the existence of the colour combination red and white in the international market not having been denied, the defendants have in my view prima facie established that colour red as well red and white combination are common to the toothpaste trade internationally. The fact that some of the brands have a negligible presence in the Indian market or have been sued by the plaintiff or are under a settlement with the plaintiff, still does not detract from the fact that the colour red and the red and white colour combination are common to the toothpaste trade."

(iv) AIR 1996, HP, 70 - Amrit Banaspati Company Limited v. Surat Industries Limited. Learned Advocate Mr. Mehul Sharad Shah has drawn the attention of this court to paragraphs 26, 36, 41 and submitted that the Hon'ble Court has observed in paragraph 36 as under:

"simply because the colour of the two pouches was dark blue and the writing on those pouches are in white colour, will not make the pouches to be of similar nature, even prima facie. Insofar as the use of this blue colour is there, it is not prohibited. The defendants have brought on record samples of various pouches of this dark blue colour and of Page 19 of 124 Downloaded on : Tue Mar 02 00:34:41 IST 2021 C/AO/2/2021 CAV JUDGMENT light blue colour on record being used by other concerns."

20. Learned Advocate for the Appellant / Original Defendant has therefore submitted that after discussing various aspects, the Hon'ble High Court refused to grant any temporary injunction.

21. Learned Advocate Mr. Shah has therefore submitted that as held by the Hon'ble Delhi High Court in the case of 'Colgate Palmolive Company vs. Patel & Ors. (supra); 'orange' colour in itself cannot be considered to be a essential and/or distinctive feature capable of being monopolized by the Plaintiffs exclusively and therefore Ld. Trial Court ought to have appreciated that merely because a generic colour has been adopted, it cannot be said that there is a prima facie case for passing off when said colour is not capable of being considered as distinctive feature.

22. It is further submitted that similarly, as far as the tea manufacturing companies are concerned, an image of 'cup', 'saucer' and 'tea leaves' are nothing but generic features and therefore they are also incapable of being considered as the essential/distinctive feature and therefore also there cannot be any case for passing off merely because of adoption of the same. As against the same, trade names of the both the parties and their symbol are admittedly distinctive and same can be considered as Page 20 of 124 Downloaded on : Tue Mar 02 00:34:41 IST 2021 C/AO/2/2021 CAV JUDGMENT essential feature of the overall trade dress and therefore when the essential feature of the trade dress are different, learned Trial Court ought not to have granted interim injunction more particularly when present is the case of passing off and not of the trademark infringement.

23. Learned Advocate Mr. Mehul Sharad Shah has further drawn the attention of this court to Kerly's Law of Trade Marks and Trade Names, 15 th Edition (P. 652);

"It is usually true in some degree that a trader's goods are recognised as his by their general appearance, or "get-up".

Accordingly, resemblance of get-up is not uncommonly an ingredient in passing off, and it is possible for imitation of get-up alone to amount to passing off. Such cases are rare, since few traders rely on get-up alone to distinguish their goods, so that trade names and word trade marks are ordinarily present too, and in these days, in this country, a difference in names is enough to warn the public that they are getting one trader's goods and not the other‟. Accordingly, there can hardly be passing off by get-up alone (in the usual sense of substitution of one make of a product for another) unless the resemblance between the goods is extremely close, so close that it can hardly occur except by deliberate imitation; and even that may not be enough . White, Hudson v. Asian [1965] R.P.C. 45 (PC, Singapore) Saper v. Specter's: 1953 (70) R.P.C. 173] But there are forms of passing Page 21 of 124 Downloaded on : Tue Mar 02 00:34:41 IST 2021 C/AO/2/2021 CAV JUDGMENT off in which a difference of name is not important: for example, where the goods themselves are distinct enough from the claimant‟s for a different product name to be expected4. The relative importance to be attributed to names and word marks on the one hand, and to get-up on the other, is a matter upon which different people have different views; with the result that the outcome of disputes about get-up is exceptionally hard to predict."

24. Learned Advocate Mr. Shah has submitted that the Hon'ble Madras High Court in the case of Parle Products Limited v. Bakemans Industries Limited, 1998 (2) ARBLR 583 has held that;

"Had there been no injunction, the defendant/respondent's business would have multiplied and in the event of dismissal of the suit, the loss suffered by the respondent/defendant cannot be ascertained. On the contrary, if no injunction is granted and suit is ultimately decreed the loss suffered by the applicant/plaintiff can be ascertained and he can be adequately compensated. In the result, Application No. 1210 of 1998 is allowed. O.A. No. 144 of 1998 is dismissed. Ad-interim injunction granted is vacated. Parties to bear their respective costs."

And, further in the case of Amrit Banaspati Company Limited v. Suraj Industries Limited (supra), the Hon'ble Court has observed as under;

"41. On the basis of the aforesaid discussion, first of all the plaintiffs have not been able to prove prima facie case in their favour for an action based on passing-off goods as the goods of another. In case the injunction, prayed for, is granted it will be the defendants who would be put to irreparable injury inasmuch as Page 22 of 124 Downloaded on : Tue Mar 02 00:34:41 IST 2021 C/AO/2/2021 CAV JUDGMENT without there being any prima facie case in favour of the plaintiffs, the defendants are likely to suffer loss in their income which they are deriving from the sale of those pouches of ANGAN ghee. Balance of convenience in such circumstances would not be in favour of the plaintiffs at all.

42. In view of the foregoing reasons, the present petition fails and the prayer for the grant of temporary injunction and other interim relief's asked for by the plaintiffs through the present petition are not legally available to them at this stage and that too oh ', the basis of the pleadings, affidavits and other documents brought on record. The petition is, accordingly, dismissed with costs which are assessed at Rs.3,000/- (Rupees three thousand)."

25. Learned Advocate Mr. Shah has submitted that unlike trademark infringement, case of passing off has to be established through evidence in the trial and therefore the learned Trial Court ought not to have granted injunction as not only prima facie case was yet to be proved but also the balance of convenience was in the favour of present Appellant as any alleged injury caused to Plaintiffs could be easily restituted by the monetary compensation while injunction to Appellant will cause irreparable loss. It is submitted that the impugned order has not considered factors of balance of convenience as well as irreparable loss in appropriate way and therefore also same is required to be quashed and set aside.

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26. It is submitted that, it is pertinent to note that trademark infringement cases relied upon by the Respondents in their affidavit in reply to the civil application, pertains to the cases where not only the trade-dress was similar but also trade name of the businesses were also phonetically or actually similar and therefore ratio laid down in said cases would not be applicable as in the present case not only the trade names of the parties are different but also essential features are different.

27. It is further submitted that the fact that admittedly there is presence of other brands having trade-dress of the orange colour and Plaintiffs have not initiated any proceedings against them successfully for restraining use of 'orange' colour clearly shows that Plaintiffs/Respondents themselves have never considered the same as being essential feature on its own. Therefore, the action of Respondents to seek only restrain against the Appellant clearly shows that same is nothing but intentional stifling of valid competition from Appellant, which is against the public policy and requires to be deprecated. Page 24 of 124 Downloaded on : Tue Mar 02 00:34:41 IST 2021 C/AO/2/2021 CAV JUDGMENT

28. Learned Advocate for the Appellant has further submitted that various judgments relied upon by the original plaintiffs - respondent herein are not applicable to the facts of the present case. Most of the judgments are pertaining to the word 'mark' and not pertaining to 'similar colour can be used or not'.

29. It is submitted that Hon'ble Supreme Court in the case of Cadila Healthcare v. Cadila Pharmaceutical 2001 (2) PTC 541 SC has only rejected adoption of the English principles regarding the weightage to be given to the dissimilarities, however, Hon'ble Supreme Court has not stated that principles concerning the colour combination as laid down in various English judgment would not be relevant for the Indian jurisdiction. On the contrary, in paragraph 33 (page no. 211) of the said judgment, Hon'ble Supreme Court in the said judgment itself has stated that the English cases would be relevant in understanding essential feature and therefore considering the long line of English as well as American judgments as narrated in the commentary of Kerly's Law of Trade Marks and Trade Names and narrated by various Hon'ble High Court (i.e. Britania Industries v. ITC Ltd.) it is clear that it would be very difficult for anyone to claim passing off solely on the basis of colour combination as essential feature. In such circumstances, Ld. Trial Court ought to have appreciated that Respondents have no prima facie case of Page 25 of 124 Downloaded on : Tue Mar 02 00:34:41 IST 2021 C/AO/2/2021 CAV JUDGMENT passing off and therefore injunction ought not to have been granted.

30. It is submitted that the goods under consideration is not ordinary tea which is sold in lose form to the general public but it is a premium variety of the tea targeted towards the middle as well as upper-middle class people who will be aware of the 'WAGHBAKRI' and 'VIMAL' as two different brands as both of them have distinct identity and therefore considering the nature of goods as well as targeted audience also there is no possibility of passing off as alleged by the Respondents. 31 Learned Advocate for the Appellant has further submitted that the learned Trial Court has not considered and provided reasoning and / or its findings on various contentions raised by the Appellant and thereby committed serious error in fact and law.

32. Learned Advocate for the Appellant has submitted that the learned Trial Court did not framed issue at least to discuss and appreciate the basic ingredients of granting temporary injunction i.e. prima facie case, balance of convenience and irreparable loss. There is no discussion in the entire judgment with the perspective of the above ingredients and only before the operative order straightway finding was recorded qua these ingredients. It is mandatory on the part of the learned trial court to record Page 26 of 124 Downloaded on : Tue Mar 02 00:34:41 IST 2021 C/AO/2/2021 CAV JUDGMENT its reasons qua prima facie case, balance of convenience and irreparable loss while granting temporary injunction application, which is totally lacking in the present order and therefore, such unreasoned order is not sustainable in the eye of law.

33. It is further submitted that the learned Trial Court has recorded in the judgment that the Respondents / Original Plaintiffs have fairly admitted that they do not have any objection if the Appellant / Original Defendant uses the word VIMAL without pilfering the prominent features like colour scheme, get-up and arrangement of the registered label of the Plaintiff. It is further recorded in the finding that both the trade names are deceptively similar and therefore, plaintiffs are having prima facie case. Therefore, apparently the finding recorded by the learned trial court is ex-facie contradictorily, against the pleadings as well as against the evidence on record.

34. It is therefore submitted that the learned Trial Court has failed to appreciate that there is infringement of copyright as alleged by the Respondents / Original Plaintiffs. That the learned Trial Court ought to have appreciated that by virtue of registration of copyrights, no exclusive or special right is granted to plaintiffs, in view of provisions of Section 48 of the Copyright Act. That the Respondents / Original Plaitniffs have Page 27 of 124 Downloaded on : Tue Mar 02 00:34:41 IST 2021 C/AO/2/2021 CAV JUDGMENT made a wrong statement in the plaint that Copyright of different artistic work of packaging is also protected under Copyright Act though it is far from truth.

35. It is submitted that the learned Trial Court has failed to appreciate that the artistic work claimed on the basis of extract from the Register of Copyrights and label, which are produced at page 46 and 47 of the original paper book, cannot be said to be the artistic work because, it is neither a painting, nor sculpture nor a drawing nor photograph. It is merely a package, which is produced before the Registrar of Copyrights for registration. The package appears to have been prepared mechanically by the use of machines / computers and therefore, it does not qualify to be said to be an artistic work as envisaged under Section 2(c) of the Copyright Act.

36. Learned Advocate for the Appellant has submitted that even if it is considered to be an artistic work, then also that artistic work would consist of literature, depicting of a logo of a man, goat above 'WAGH BAKRI' and tea leaves and by no stretch of imagination, it can be said that there is an artistic work in orange colour background as no labour or any original idea is presented by placing orange colour. Therefore, no Copyright can be claimed on orange colour background. Therefore, the Page 28 of 124 Downloaded on : Tue Mar 02 00:34:41 IST 2021 C/AO/2/2021 CAV JUDGMENT Respondents / Original Plaintiffs cannot claim that there is an infringement of copyright by reproducing orange colour, which is the main grievance of Respondents.

37. Learned Advocate for the Appellant has submitted that the learned trial court ought to have appreciated that the artistic work of the Appellant's / Defendant's label are entirely different. It is submitted that the artistic work of the Appellant's label consist of a cup and saucer with entirely different design, background consisting of landscape of tea estates, leaves are also in more quantity and the application of such device in work is also vastly different from that of Respondents / Original Plaintiffs. Even the background of the Appellant's artistic work consists of dark orange colour while the background of the Respondent's label consists of light orange (saffron colour). The cup and saucer design are also entirely different.

38. Learned Advocate for the Appellant has submitted that the learned trial court ought to have appreciated that the size of oblong shape is entirely different and colours in the said oblong shape are also different and that the learned trial court ought to have appreciated that generic, descriptive and common words cannot be protected unless and until it has acquired secondary meaning. That the learned trial court has failed to Page 29 of 124 Downloaded on : Tue Mar 02 00:34:41 IST 2021 C/AO/2/2021 CAV JUDGMENT appreciate that there is no infringement of trademark pertaining to registration of 'WAGH BAKRI' as alleged by the plaintiffs. Learned Advocate for the Appellant has further submitted that there is no registration of trademark in category of "colour".

39. Learned Advocate for the Appellant has further submitted that it is an admitted fact looking to the record that none of the registration is for colour orange background or for colour scheme and that those registration certificates produced with the paper-book cannot be relied upon since the user claim in those registration is from 1.1.1925 while the Copyright extract the year of first publication in the year 2013. It is therefore submitted that the learned trial court ought to have appreciated that the Appellant has not committed any act of passing off. That the learned trial court ought to have appreciated that the Respondents / Original Plaintiffs have not shown that the sales turnover is with regard to orange label or with regards to colour combination, get up, cup and tea saucer. The turnover, good-will and reputationf is due to its trade name 'WAGH BAKARI' and not due to colour combination and that the brand names of the Respondents / Original Plaintiffs and the Appellants are totally different and on such facts the Respondents / Original Plaintiffs have miserably failed to prove any reputation and goodwill on orange colour as sought to be canvassed by them.

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40. In support of his submission, learned Advocate for the Appellant has referred to and relied upon the judgment of the Calcutta High Court in case of Kumer Khaini Private Limited v. Prabhulal, reported in 2000 Law Suits (CAL), 372 and submitted that the mark, name and get- up must always be considered as whole thing. The Calcutta High Court has considered the ratio laid down by the Hon'ble Supreme Court in case of S.M.Dychem Ltd. v. M/s Cadbury (India) Ltd. reported in (2005) 5 SCC 573 wherein the Hon'ble Supreme Court has held as under:

"As to scope of a buyer being deceived, in a passing off action, the following principles have to be borne in mind. Lord Romer, LJ has said in Payton & Co. vs. Snelling Lampard & Co. (1900) 17 RPC 48 that it is a misconception to refer to the confusion that can be created upon an ignorant customer. The kind of customer that the Courts ought to think of in these cases is the customer who knows the distinguishing characteristics of the plaintiff's goods, those characteristics which distinguish his goods from other goods in the market so far as relates to general characteristics. If he does not know that, he is not a customer whose views can properly be regarded by the Court. [See the cases quoted in N.S.Thread & Co. vs. Chadwick & Bros. (AIR 1948 Mad. 481), which was a passing off action]. In Schweppes' case, Lord Halsbury said, if a person is so careless that he does not look and does not treat the label fairly but takes the bottle without sufficient consideration and without reading what is written very plainly indeed up the face of the label, you cannot say he is deceived."

41. Learned Advocate for the Appellant has submitted that in the facts and circumstances of the case, it is crystal clear that trade name of both the parties are different and only because colour combination is more or Page 31 of 124 Downloaded on : Tue Mar 02 00:34:41 IST 2021 C/AO/2/2021 CAV JUDGMENT less same, it cannot be said that the defendant has committed any act of passing off and therefore the order granting the injunction by the learned trial court is required to be set aside in the interest of justice. That the learned trial court has failed to appreciate the ratio laid down by the Hon'ble Supreme Court in the case of S.M. Dye Chem Limited (supra).

42. Learned Advocate for the Appellant has further submitted that the learned trial court has erred in observing that new entrant like defendant enters the Tea business cannot use the colour combination as that of Respondents / Original Plaintiffs in so far as the tea business is concerned and that there is no legal force to arrive at such a conclusion more particularly when it is an admitted fact that the Respondents / Original Plaintiffs are not having any registration of trademark for orange colour and orange colour is a generic colour and more particularly when the said colour is used by several other tea vendors. It is therefore submitted that the observations made by the learned trial court are not tenable in law and on facts.

43. That the learned trial court has gravely erred in holding that the entire get up and colour scheme of the package adopted by the Respondents / Original Plaintiffs and the Appellant / Original Defendants are identical in every detail and are likely to confuse and deceive the Page 32 of 124 Downloaded on : Tue Mar 02 00:34:41 IST 2021 C/AO/2/2021 CAV JUDGMENT customer easily. It is submitted that such a finding is recorded without appreciating various provisions of Trademarks Act and Copyright Act as well as settled common laws of passing off action as, except the colour of the packet, there is no similarity in the overall design or get up of the package.

44. Learned Advocate for the Applicant has, therefore, submitted that the impugned order passed by the learned trial court dated 11.12.2020 below Exh.7 is unjust, illegal, against the evidence on record and against the provisions of Trademarks Act and Copyright Act and against the settled preposition of law and therefore, requires to be quashed and set aside and the Application at Exh.7 moved by the Respondents / Original Plaintiffs deserves to be dismissed.

45. Learned Counsel Mr. Mehul Sharead Shah has vehemently further argued that in the present case, the case is related to the trademark & copyright regarding 'WAGH BAKRI' and 'VIMAL TEA'. The learned trial court has committed serious mistakes and errors by not discussing the prima facie case, balance of convenience and irreparable loss and therefore the said order deserve to be dismissed.

46. It is further contended that pursuant to the copy of order at page 91 Page 33 of 124 Downloaded on : Tue Mar 02 00:34:41 IST 2021 C/AO/2/2021 CAV JUDGMENT (internal page 152), the learned trial court has discussed the facts about Order 7 Rule 11 i.e. with regard to the rejection of plaint but the case is of Exhibit-5 (interim injunction) where is the question is rejection of the plaint. Further, there is vast difference between 'WAGH BAKRI' and 'VIMAL TEA' as both re different. Therefore, this case requires remand and the learned trial court is required to decide afresh. Merely colour of wrapper is same which is the source of natural colour. Further, not a single word with regard to findings and there is total non-application of mind and the same is non-reasoned judgment and therefore in absence of prima facie evidence of plaintiff, this Appeal from Order deserve to be allowed and accordingly stands allowed. The learned trial court to decide fresh Exh.5 on merits.

47. Learned Advocate Mr. Mehul Sharad Shah for the Appellant / Original Defendant has further vehemently argued that in the present case, as per the allegations, original Defendant has copied the trademark and copyright of the plaintiff. In fact the product of the plaintiff is of Saffron Colour whereas the product of the defendant is of dark orange colour. In fact the colour scheme and the names are altogether different. Further, learned Advocate Mr. Shah has drawn the attention of this Court at page numbers 27 and 82 of the memo of petition and submitted that he had applied for the trade mark. He has also argued that in fact it is originally applied by the plaintiff on 1st of January 1925 but in that form Page 34 of 124 Downloaded on : Tue Mar 02 00:34:41 IST 2021 C/AO/2/2021 CAV JUDGMENT at page number 142 is very relevant and important since the trademark has a Colum "Device". On the contrary there were six options and out of that six options the plaintiff has neither used the device as colour, shape of goods and sound etc. On the contrary the word Colum 'Device' is used and therefore the case of the plaintiff is not tenable. Further, the colour orange is generic. Learned Advocate Mr. Shah has further emphasized on the word 'device' and drawn the attention of this court on column numbers 4 and 5 at page numbers 73 which are relevant where the BAGH BAKRI TEA LEAF' is shown and further the label is of the year 2013 and the trademark is more than 100 years but they have changed the label recently in the year 2019.

48. It is further contended by learned Advocate Mr. Shah by drawing the attention of this court at page no.73 (column no.4 and 5) wherein also 'WAGH BAKRI TEA LEAF' is the label which is just availed to the original plaintiff in 2013. Therefore, the stand of more than 100 years using present 'Mark' is not tenable. It is further contended that on the contrary the present stand is taken on 30.7.2019 and the certificate to that extent is issued on 25.1.2020 for 'WAGH BAKRI' premium leaf. It is further contended that on page no. 147 of the petition also premium leaf is referred to at page 148. The name 'WAGH BAKRI' is a big name so far as the item of original defendant and the present Appellant is Page 35 of 124 Downloaded on : Tue Mar 02 00:34:41 IST 2021 C/AO/2/2021 CAV JUDGMENT concerned. There is nowhere tea garden, neither man nor goat, nor 'WAGH BAKRI'. Therefore, there is no question of infringement. However cup and saucer is generic. Further, the original plaintiff and the present Respondent has saffron colour where the present appellant and the original defendant has dark orange colour. Therefore, there is no similarity and therefore there is no question of deceptive nature of the product of the present Appellant. Learned Advocate Mr. Shah has also drawn the attention of this court at page numbers 149, 150, 151, 152, 153 and 154 and submitted that the colour orange is generic one. Further, he has drawn the attention of this court at page number 168 and 173 and submitted taht the defendant is using VIMAL and the same is a registered trade mark but 'WAGH BAKRI' is in red colour. Therefore also there is no question of deceptive to the public at large.

49. Learned Advocate Mr. Shah has further contended that in the present case, the learned trial judge has just narrated the arguments advanced by both the sides from 1 to 100 pages of impugned order passed by learned trial corut, and hardly nowhere it is stated the discussion of prima facie case, irreparable loss and balance of convenience. However, he has drawn the attention of this court that at page 36 (internal page 77) paragraph 42 and page 82, the stand taken by the original defendant. Page 44 is with regard to the artistic work i.e. Tiger, page 45 (internal Page 36 of 124 Downloaded on : Tue Mar 02 00:34:41 IST 2021 C/AO/2/2021 CAV JUDGMENT page 84) is with regard to the design, page 56 (internal page 92) is with regard to the goodwill of 'WAGH BAKRI'. Further, learned Advocate Mr. Shah has emphatically argued that the product of the original defendant / present Appellant is VIMAL and not the 'WAGH BAKRI'. On all such grounds, the reasons are perverse and therefore this court is required to interfere and set aside the oder passed by the learned Judge, City Civil Court in temporary injunction. Further, it is also argued that nobody is using Kesari Cha (tea) on the basis of similar get-up, since the present Appellant has dark orange coloured VIMAL product and also he has drawn the attention of this court at page 150, 151 and page 160 of the impugned order.

50. At the cost of repetition, he has submitted that there is no prima facie case neither balance of convenience nor irreparable loss to the plaintiff and the same is not in detail discussed by the learned trial court. Further, the orange colour is generic and used by all the traders. Further, it is contended that if the temporary injunction is not granted, in that case, the original Plaintiff / present Respondent has no loss. On the contrary, the present appellant / original defendant has huge loss. Learned Advocate Mr. Shah has also drawn the attention of this court to the judgment in case of Picnic / Picnic v/s Picnic / Picnic, where also Exh.5 was not granted. He has also drawn the attention of this court to the Page 37 of 124 Downloaded on : Tue Mar 02 00:34:41 IST 2021 C/AO/2/2021 CAV JUDGMENT judgment of the Hon'ble Supreme Court in case of Cadbury. Further, it is argued that time and again the Hon'ble Supreme Court has held that some product is purchased by rich persons only. Therefore, they are literate and normally they are literate therefore there is no chance of any deceptiveness nor of cheating to the public at large.

51. Learned Advocate Mr. Shah has therefore prayed that in view of what is stated herein above, Appeal from Order may be allowed, and impugned order may be quashed and set aside considering the above- mentioned discrepancy in the judgment as well as established principles of law.

52. Further learned advocate Mr. Mehul S. Shah in his arguments has drawn the attention of this Court at judgment delivered by the High Court of Delhi in case of Kellogg Company vs. Pravin Kumar Bhadabhai decided on 15.02.1996 reported in 1996 Law Suit (Del) 187, Para 10 of which reads as under:

"Para 10. The law relating to 'trade dress' is very clear. Kerly in 'Law of Trade Marks' (12th Ed. 1986, para 16.67) says that it is usually true in some degree that a trader's goods are recognised by their general appearance, or "get-up". Accordingly, resemblance or 'get-up' is not uncommonly an ingredient in passing-off, and it is possible for imitation of get-up alone to amount to passing-off. Such cases are rare, since few traders rely Page 38 of 124 Downloaded on : Tue Mar 02 00:34:41 IST 2021 C/AO/2/2021 CAV JUDGMENT on get-up alone to distinguish their goods, so that trade names and word trade marks are ordinarily present too, and the author says:

and in these days, in this country, a difference in names is enough to warn the public that they are getting one trader's goods and not the others" (Sapers v. Specters ((1953) 70 RPC 173)".

Therefore, learned Advocate Mr. Shah has argued that in the present case even if Safron & dark orange colour is common in that case too, it is not a case of passing off.

53. Learned advocate Mr. Shah has submitted that in the present case also name is Vimal for the original defendant whereas name 'WAGH BAKRI' for the original plaintiff, therefore, names are totally different, hence, no case is required for temporary injunction for present respondent by the learned learned trial Court. Learned advocate Mr. Shah has also placed reliance upon the Para 20 of the above referred judgment, which reads as under:

"Para 20. Thus, the above case also lays down that the trade dress or rather the whole thing must be seen in its entirely and not parts in isolation. It is not permissible, therefore to say that the square on the left side top had a small red and green border or there was a red band horizontally and defendant's carton if examined from close quarters, showed these feature. Viewed as a whole, one can see that the words Kellogg's, and AIMS are prominently displayed on each and therefore there can be no confusion, prima facie."

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54. In this judgment words Kellogg's and AIMS are totally different from each other and so there is no confusion and here in this case also the words Vimal and Waghbakari are different from each other and therefore there is no chance of confusion.

55. Learned advocate Mr. Shah has also placed reliance upon the judgment delivered in case of Parle Products Limited vs. Bakemans Industries Limited decided on 29.05.1998 reported in 1998(2) ARBLR583(Madras), Para 11 of which reads as under:

"Para 11: The learned Counsel for the applicant submitted that only one 'Gluco' is mentioned in the judgment which is the Gluco Biscuits manufactured by the applicant. Be it so, the observation that 'Gluco' is an ordinary word in which no one has any right has not been assailed. Further, the respondent has produced sample biscuit pockets filed additional affidavit to show that at least two other manufactures of biscuits used the word 'GLUCO' for their biscuits. Thought the learned Counsel refers to the products of M/s. Surya Food and Agro Industries Pvt. Ltd. and Kwality' Biscuits Limited, a perusal of the typed set of papers would show that Kwality Biscuits Limited is manufacturing 'Glucose Biscuits' and the typed set would reveal that M/s. Surya Food & Agro Pvt. Ltd. is manufacturing 'Gluco-V Biscuits and a manufacturer known as Sudha is manufacturing Gluco Bico. It is thus evident that Page 40 of 124 Downloaded on : Tue Mar 02 00:34:41 IST 2021 C/AO/2/2021 CAV JUDGMENT several biscuits manufacturers use the word GLUCO to indicate that Glucose is an ingredient in the biscuits. I accept the contention of the learned Counsel for the respondent and hold that GLUCO is a generic word descriptive of use of Glucose in the product. The applicant's action, in the language of Fry, Lord Justice in the case of in Re : Dunn 1888 6 RPC 379, is 'struggle to enclose and to appropriate as private property certain little strips of the great open common of the English Language."

In the above judgment the common word is Gluco and in the present case defendant has used orange colour which is generic and the same is not created.

56. Learned Advocate Mr. Shah has emphatically and fervently submitted that loss of the plaintiff can be ascertained if the injunction is not granted but the loss of defendant (present petitioner) cannot be ascertained and therefore, the present Appeal From Order is required to be allowed and the impugned order passed by the learned trial Court may be set aside.

57. Learned advocate Mr. Shah has lastly submitted that in no case there are chances of confusion in the minds of customers since the words 'Vimal' and 'Waghbakari'are totally different therefore also requested to allow the present Appeal From Order and to set aside the impugned order of the learned Trial Court.

Page 41 of 124 Downloaded on : Tue Mar 02 00:34:41 IST 2021 C/AO/2/2021 CAV JUDGMENT (F) Arguments - cum - legal aspects by learned Advocate for the Respondent / Original Plaintiff:

58. Learned Senior Advocate Shri Kamal Trivedi for the Respondent / original Plaintiff has submitted that In the captioned appeal, the Appellant

- orig. Defendant has challenged order dated 11.12.2020 of the learned Trial Court, granting interim injunction in favour of the Respondent - orig. Plaintiff in terms of para 85 (A), (B) and (C), restraining the Appellant - Defendant from manufacturing, marketing, advertising and selling its products by copying the registered device mark and registered copyright of the Respondent - Plaintiff and from committing an act of infringement thereof.

59. Learned Senior Advocate Shri Kamal Trivedi for the Respondent / Original Plaintiff has commenced his arguments through the authorities/ citations to buttress his argument and submitted that out of total authorities submitted by the petitioner, there are 4-5 authorities which are no longer good law, therefore, these authorities / citations is not applicable in the present case.

60. Learned Senior Advocate Shri Kamal Trivedi has taken this court to the 4 registered trademarks produced at Page Nos. 23, 26, 29, and 32 Page 42 of 124 Downloaded on : Tue Mar 02 00:34:41 IST 2021 C/AO/2/2021 CAV JUDGMENT in Respondent's Affidavit-in-Reply in the CA, which are equivalent to Page Nos. 62/A, 66, 68 and 70 in Paper Book ("PB") and one registered copyright, produced at Page No. 35 therein, which is equivalent to Page No. 73 in PB along with their enlarged images at pgs. 25, 28, 31, 34 and 36 in Respondent's Affidavit-in-Reply in CA being equivalent to pgs. 74, 142, 143 and 145 in PB, clearly suggest that Appellant - Defendant has copied the same in its device mark / label, while applying for its own registration, produced at pgs. 37 and 38 in the said Affidavit-in-Reply of the Respondent (being equivalent to pg.133 in PB).

61. Learned Senior Advocate Shri Kamal Trivedi has submitted that the Respondent - Plaintiff is in the Tea business since 1892 and has been a prior user of aforesaid trademarks and copyright, as compared to that of Appellant - Defendant, who is yet to enter in the Tea business and that, the Respondent - Plaintiff has an annual turnover of about Rs.1200 cr. He has further submitted that the Appellant - Defendant has not yet started its commercial business in Tea, and while denying the distinctiveness involved in the registered trademarks and copyright of the Respondent - Plaintiff, Appellant - Defendant itself has sought to apply for registration for deceptive similar device mark, while claiming distinctiveness in its copied version of colour scheme, get up, placement of cup and saucer, leaves, etc. and thus, Appellant - Defendant has made Page 43 of 124 Downloaded on : Tue Mar 02 00:34:41 IST 2021 C/AO/2/2021 CAV JUDGMENT substantial and material reproduction of Respondent - Plaintiff's labels, which are registered trademarks and copyright by copying (a) Saffron colour scheme (b) Get up and arrangement, (c) Placement of cup and saucer along with the device of leaf, and (d) the artwork prepared in the oblong containing the word 'WAGHBAKRI' in red colour. It is submitted that this can very well be appreciated by comparing Respondent's - Plaintiff's label vis-à-vis Appellant - Defendant's label, copies whereof are produced at Exh.1 (Colly.), which are otherwise at pgs. 34 and 38 in the Respondent's Affidavit-in-Reply in CA (being equivalent to pgs.147 and 148 of the PB). He has further submitted that no reason is coming forth as to why the Appellant - Defendant has chosen the said label for its VIMAL product, which is, as aforesaid, substantial and material reproduction of the label of Respondent - Plaintiff. Learned Senior Advocate Shri Kamal Trivedi has therefore submitted that the Respondent - Plaintiff has made out a prima facie case on merit about copying the essential ingredients of its device mark by the Appellant - Defendant, coupled with Respondent's established goodwill, reputation and prior use, followed by balance of convenience and likelihood of causing irreparable injury, being in favour of the Respondent - Plaintiff. Therefore, Respondent - Plaintiff was rightly issued an injunction order. Page 44 of 124 Downloaded on : Tue Mar 02 00:34:41 IST 2021 C/AO/2/2021 CAV JUDGMENT

62. Learned Senior Advocate Shri Kamal Trivedi for the Respondents / Original Plaintiffs has further submitted that in a matter of a registered trademark as device mark with a label along with registration of copyright thereof, what is to be seen is the over all similarity from the point of view of a common man with average intelligence and imperfect recollection, and one is not supposed to place both the competing marks side by side to draw dissimilarities and to find out whether the words and colours used therein are generic and descriptive or not.

63. Learned Senior Advocate Shri Kamal Trivedi for the Respondents / Original Plaintiffs have placed reliance on the following judgments, which are very much similar to the one on hand and submitted that the Courts have made such overall comparison as discussed herein above, while granting injunction against the usage of objectionable device mark / label. He has relied upon the following judgments which are as under:

       Sr.                Name           Citation          Pg.             Original mark           Copied mark
       No.                                                No. (1st
(1st Compilation                                       Compilation of
of Judgments of                                        Judgments of
 Respondents)                                          Respondents)


      1.           Parle    Products   (1972) 1 SCC         1-6         A wrapper / label     A wrapper / label of
                   (P) Ltd. vs. J.A.       818                          of partly yellow      partly yellow and
                   & Co. Mysore                                         and partly white in   partly white in
                                                                        colour, having a      colour, having a
                                                                        picture with a girl   picture of a girl and
                                                                        in centre, carrying   birds in the center,
                                                                        a pot of water on     with hay-bundle on
                                                                        her head with two     her head supported
                                                                        calves around her     with one hand and
                                                                        and hens in the       carrying a stick and
                                                                        foreground and a      bundle of food in


                                           Page 45 of 124

                                                                          Downloaded on : Tue Mar 02 00:34:41 IST 2021
      C/AO/2/2021                                                  CAV JUDGMENT


                                                               farm house with a      the other hand with
                                                               fence      in      a   cows and hens
                                                               background with        around.
                                                               words,      "Parle's
                                                               Gluco      Biscuits"
                                                               printed thereon.

2.        Dabur      India      2012 SCC             7 - 21
          Limited      Vs.   Online Del. 3332
          Shree Baidyanath
          Ayurved Bhawan
          Pvt. Ltd.



3.        Marico Ltd. Vs.       2014 SCC            22 - 40
          Pratik Goyal       Online Del. 1786




5.        Mother     Dairy     2015 SCC             66 - 75
          Fruit         &      Online Del.
          Vegetable   Pvt.       10637
          Ltd    Vs.   Sri
          Vinayaka Milk
          Products
7.        Parle Agro Pvt     Judgment dated         91 - 95
          Ltd. vs. Gulam     28.03.2018
          Moinuddin Khan     rendered    by
          and Anr.           Hon'ble Bombay
                             High Court



8.        Parle   Products   MANU/MH/149            96 - 101
          Pvt. Ltd. V/s.       2/ 2020
          Future Consumer
          Ltd.




                                   Page 46 of 124

                                                                 Downloaded on : Tue Mar 02 00:34:41 IST 2021
                   C/AO/2/2021                                                 CAV JUDGMENT


            9.         Gujarat      Tea   Order      dated       102 - 123
                       depot. Co. Vs.     04.08.2015
                       Bagharam           passed by this
                       Krupaji Ganchi     Hon'ble Court




            10.        Taw                (1951) RPC 271     124 - 129
                       Manufacturing
                       Coy Ld. Vs.
                       Notex
                       Engineering Coy.
                       Ld




(G)   Case Law Discussion:

64. Whatever the list of citations / authorities and discussion on the aforesaid judgments as submitted by learned Senior Advocate Shri Kamal Trivedi for the Respondents / Original Plaintiffs shall be discussed at the relevant place of this judgment.

65. Learned Senior Advocate Shri Kamal Trivedi for the Respondent / Original Plaintiff has further submitted that as held by the Hon'ble Supreme Court in case of Midas Hygiene Industries (P) Ltd. Vs. Sudhir Bhatia, reported in (2004) 3 SCC 90, [judgment at Sr. No.15 at pgs. 213 - 215 in the 1st Compilation of Judgment of the Respondent - Plaintiff), an injunction must follow in case of infringement of trade mark or copyright and therefore, learned Trial Court has rightly granted the injunction in question.

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66. Learned Senior Advocate Shri Kamal Trivedi has further submitted in his written notes that the following judgments relied upon on behalf of Appellant - Defendant cannot be pressed in service and hence, are not applicable to the present case for the reasons stated against each one of them as indicated hereunder:

(i) S. M. Dyechem Ltd. vs. Cadbury (India) Ltd. reported in (2000) 5 SCC 573 : (@ pg.197 in PB):

The law laid down in this judgment has been expressly held to be bad in the later judgment of the Hon'ble Supreme Court in case of Cadila Health Care Ltd., reported in (2001) 5 SCC 73 in para 17 to 20 (Pls. see judgment No.14 at pgs.190 to 212 in the 1 st Compilation of the Respondent), mainly on the ground that two English judgments relied upon in the case of S.M. Dyechem Ltd.

viz. Pianotist Co. (para.27 @ pg.216 in PB) and Payton and Co. vs. Snelling (para 54 @ pg.224 in PB), are not applicable to Indian conditions, and hence, the judgment of S.M. Dyechem Ltd.

(supra), cannot be referred to and relied upon.

(ii) Kellogg Company vs. Pravin Kumar Bhadabhai reported in 1996 Law Suit (Del) 187;

The said judgment has also been found not to be laying down a Page 48 of 124 Downloaded on : Tue Mar 02 00:34:41 IST 2021 C/AO/2/2021 CAV JUDGMENT good law in later judgment of Hon'ble Delhi High Court in case of N. Rangarao & Sons Vs. Anil Garg, reported in 2005 SCC Online Del 1293 (rel. para 67), since reliance was placed on the very two English judgments referred to above as well as on the judgment of S.M. Dyechem Ltd. (supra).

(iii) Kuber Khaini Pvt. Ltd. Vs. Prabhoolal Ramratan Das Pvt. Ltd. reported in 2000 Law Suit (Cal) 372 ;

The law laid down by the said judgment is not a good law, inasmuch as, it has also relied upon the above very two English judgments in case of Payton and Co Limited vs. Snelling (para 17 @ pg.264), which has been declared bad by the Hon'ble Supreme Court in para 20 of Cadila Health Care Ltd., reported in (2001) 5 SCC 73.

(iv) K. Narayanan vs. S. Murli reported in 2008 Law Suit (Cal) 372;

This judgment does not apply to the present case, since injunction was denied in the said case mainly on two grounds viz. (i) the plaintiff's mark was not registered and his application for registration was pending, on the basis whereof, it had filed a Suit for passing of for injuncting the other side (Pls see para 3 & 26), and (ii) plaintiff had suppressed certain important facts. However, Page 49 of 124 Downloaded on : Tue Mar 02 00:34:41 IST 2021 C/AO/2/2021 CAV JUDGMENT in the instant case, Respondent - Plaintiff has registered trademarks and copy rights, whereby, it has acquired a statutory recognition to use the same to the exclusion of rest of the world.

(v) Parle Products Ltd. vs. Bakeman Industries Ltd.

reported in MANU / TN / 1824 / 1998 ;

This is also not a good law in view of the Apex Court's judgment in case of Parle Products (P) Ltd. vs. J. P. & Co., Mysore.

(vi) Britannia Industries Ltd Vs ITC Limited reported in MANU / DE / 0626 / 2017;

This judgment is for passing off action of Britannia and not for infringement of trade mark or copyright, as it is there in the present case. Secondly, in this case, Britannia was there in the business of biscuits since many years, whereas in the present case, the Appellant- Defendant is yet to enter in tea business. Hence, the said judgment cannot be applied to the present case.

(vii) Cipla Limited Vs M.K Pharmaceuticals reported in MANU / DE / 1938 / 2007;

This judgment is not applicable to the facts of the present case, as this judgment is related to prescribed medicines / tablets with a particular colour and shape with blister form of packagings, wherein the get up, colour scheme, arrangement of label are not Page 50 of 124 Downloaded on : Tue Mar 02 00:34:41 IST 2021 C/AO/2/2021 CAV JUDGMENT relevant, whereas, in the present case, the same are essential features of label. It was under these circumstances that the Hon'ble Delhi High Court observed that there can be no monopoly over colour and shape.

(viii) Colgate Palmolive Co. Ltd. v. Patel reported in 2003 SCC On Line (Del) 1005:

This judgment of Hon'ble Delhi High Court is also entirely on different facts, since, in this case, the issue was related to monopoly of colour 'red' and 'white' and not on the entire get-up, colour scheme arrangement and placement on label. Whereas, in the instant matter, the case involved does not relate to claiming monopoly over 'orange' colour, but having registered trademarks involving a label / device mark and registered copyright on the entire lay-out, getup, arrangement, colour scheme and placement on leaves and other things. Even in the aforesaid case, in para-52 of the judgment, the Hon'ble Delhi High Court had ultimately held that owing to the following reasons, there was sufficient resemblance between Colgate Palmolive's carton of goods comprising of registered trademark and that of the Ajanta of the Defendant in that case, resulting in substantial and material reproduction of trade mark of Colgate by the Defendant.

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(a) Defendant's adoption of a red coloured background on the front panel of carton is similar to that of Colgate.

(b) Adoption of white colour for inscribing the brand name "AJANTA" is similar to the brand name "COLGATE" which is also inscribed in white colour.

(c) Similar size and placement of the aforesaid two brand names on the front panel of the carton of both the parties.

(d) Nature of goods being similar i.e. toothpaste, whose intending purchaser may not be literate to bestow much attention on a daily use product like toothpaste.

Ultimately, during the course of arguments, Hon'ble Delhi High Court suggested to the Defendant to alter the colour scheme and other changes in the copied version of packaging to which, Defendant was agreeable and accordingly the matter was put to rest.

(ix) Amrit Banaspati Co. Ltd. v. Suraj Industries Ltd.

reported in MANU / HP / 0005 / 1996;

Page 52 of 124 Downloaded on : Tue Mar 02 00:34:41 IST 2021 C/AO/2/2021 CAV JUDGMENT This judgment is for passing off action and not for infringement of trade mark or copyright and also not involving a device mark / label with a particular get-up colour scheme, arrangement of label, etc. as it is there in the present case.

67. Learned Senior Advocate Shri Kamal Trivedi has therefore submitted that the injunction cannot be refused solely on the basis of the contention raised by the Appellant - Defendant that others are copying the registered trademarks and copyright of the Respondent - Plaintiff. In support of his submission he has referred to para-22 @ pg.382 of the Judgment at Sr. No.22 in the 1st Compilation of the Judgments, in case of Rangoli Chemfoods Pvt. Ltd.)

68. It is further submitted by learned Senior Advocate Shri Kamal Trivedi that it is well established that 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 contrary conclusion. If the discussion had been exercised by the learned 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. In support of his aforesaid submission, learned Senior Page 53 of 124 Downloaded on : Tue Mar 02 00:34:41 IST 2021 C/AO/2/2021 CAV JUDGMENT Advocate Shri Kamal Trivedi has placed reliance on the following judgments:

       Sr.                Citation                 Party Name                          Pg.
       No.                                                                             No.
(2nd Compilation
of Judgments of
  Respondents)

       1.            (1996) 5 SCC    N.R. Dongre vs. Whirlpool Corporation          312 - 326
                         714
       2             2005 (2) GLH    Adani Exports Ltd. vs. Marketing               327 - 339
                         156         Service
       3.            2012 (3) GLH    Sun Pharmaceuticals Industries Ltd. vs.        340 - 352
                            110      M/s West Coast Pharmaceuticals Works
                                     Ltd.

69. Learned Senior Advocate Shri Kamal Trivedi for the respondents has drawn attention of this Court at Annexure - I (Colly.) Page 23, TM Application No. 3075599 dated 09.10.2015 and enlarged Logo on Page 25, and on Page 26, TM Application No. 4250078 dated 30.07.2019 and enlarged Logo on Page 28, and on Page 29 TM Application No. 4250077 dated 30.07.2019 and enlarged Logo on Page 31 and therefore he pointed out that the same are registered.

Learned Senior Advocate Shri Trivedi to buttress his arguments has placed reliance on the Judgment delivered by the Hon'ble Supreme Court in case of Parle Products (P) Ltd Vs. J. P. And Co., Mysore, reported in (1972) 1 SCC 618, wherein Hon'ble Supreme Court dealt with the question of similarity of one product to another market product or not, Page 54 of 124 Downloaded on : Tue Mar 02 00:34:41 IST 2021 C/AO/2/2021 CAV JUDGMENT therefore, instead of dissimilarity, first the Court is required to see similarity in the products, therefore, in the present case, if we compare the product of the plaintiff and the defendant, there is some similarity, therefore, learned trial Court has rightly exercised the discretion in favour of the respondents who are original plaintiffs. Learned Senior Advocate Shri Kamal Trivedi has further argued that in the present case the learned trial court has rightly observed that action of the plaintiff is at the doctrine of quia timet action since the defendant has started business though the application was proposed to be used. Therefore, if the manufacturing get started, the plaintiff would have irreparable loss and therefore the original plaintiff has rightly taken quia timet action against the original defendant.

70. Learned Senior Advocate Shri Trivedi has also placed reliance on the judgment in Case of Dabur India Limited Vs. Shree Baidyanath Ayurved Bhawan Pvt. Ltd, decided on 02.07.2012, reported in 2012 SCC OnLine Del 3332, Para Nos. 47 and 48 which read as under:

"Para 47. In view of the above said well known settled law on the subject, it is clear that the defendant is guilty of infringement of copyright and passing off their goods as the goods of the plaintiff. From the above said judgments cited it is clear that in most of the Page 55 of 124 Downloaded on : Tue Mar 02 00:34:41 IST 2021 C/AO/2/2021 CAV JUDGMENT cases the copyright has been claimed by the plaintiff on the article itself.

Para 48. It is also pertinent to mention that the subject matter of the colour combination, get-up and layout are not only covered in the subject matter of copyright but also covered under the common law remedy i.e. law of passing off. Even in the New Trade Mark Act 1999 the definition of the mark is given in Section 2(m) which says that "Mark" include a device, brand, style, label, ticket, name, signature, word, letter, numeral, shape of goods, packaging or combination of colours or any combination thereof. As per the definition and as per the judgments mentioned above it is clear that the colour scheme, get up, layout and combination of colours is covered under the action for passing of also."

71. Learned Senior Advocate Shri Trivedi has also placed reliance on the judgment in Case of Marico Limited vs. Pratik Goyal & Anr. Decided on 26.09.2014 reported in 2014 SCC Online Del 1786, Para Nos. 25 and 26 which read as under:

"Para 25: Thus, the defendants in the present case even prima facie are not able to establish that the third parties are actually using the similar trademarks as alleged in the written statement. Nothing has come out of record to show that any third party has actually used the main PARA to their products. A mere plea, thus raised is not enough as per settled law.

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Para 26: Law of publici juris has been discussed in various cases and the Courts have given their respective findings to the effect that a party who has taken the defence of publici juris has to prove his case. The same has been dealt with by the Courts in the following cases."

Therefore, it is argued by learned Senior Advocate Shri Kamal Trivedi for the Respondents has submitted that in the present case too, facts of that case squarely applies too.

72. Learned Senior Advocate Shri Kamal Trivedi has drawn the attention that if the trade mark of the plaintiff PARACHUTE/PARACHUTE LITE is compared as a whole with the trade mark of the defendants, PARALITE adopted by the defendants is deceptively similar mark as that of the plaintiff as it appears that the first part PARA is taken by the defendants from the registered trade mark PARACHUE and the remaining portion of the mark LITE is taken by defendants from another registered trade mark PARACHUTE LITE where the mark LITE is a part of registration No. 888245. Thus, the argument of the defendants are without any force.

73. Learned Senior Advocate Shri Trivedi has also placed reliance on the judgment delivered in case of Mother Dairy Fruit & Vegetable Pvt. Page 57 of 124 Downloaded on : Tue Mar 02 00:34:41 IST 2021 C/AO/2/2021 CAV JUDGMENT Ltd. Vs. Sri Vinayaka Milk Products decided on 15.07.2015, reported in 2015 SCC OnLine Del 10637 "Para 22. The plaintiff sells its products all over the country, including in Hyderabad where the defendant is carrying out its illegal activities. It is submitted by the plaintiff that the possibility of confusion being caused by the defendant's adoption of the impugned mark which is deceptively similar to the plaintiff's MOTHER DAIRY (blue logo) and the trade-dress used for its packaging is very high and in fact inevitable due to the following reasons:

a. The defendant is selling identical products under a deceptively similar trademark and packaging.

b. The plaintiff's and the defendant's products are sold through the same trade channels. c. Since milk is a necessary commodity, the classes of consumers purchasing the said products would include a large segment of the illiterate and semi-illiterate population.

The defendant by its adoption and use of the impugned mark and the packaging/trade dress is clearly attempting to pass off its goods as those of the plaintiff. This is in clear violation of the plaintiff's common law as well as statutory rights in the MOTHER DAIRY (blue logo) trademark and the trade dress used for its milk products. The sale and distribution of the impugned products has resulted in great harm prejudice to the plaintiff's business, rights and interests apart from amounting to tarnishment and dilution of Page 58 of 124 Downloaded on : Tue Mar 02 00:34:41 IST 2021 C/AO/2/2021 CAV JUDGMENT the plaintiff's reputation and goodwill. The plaintiff is suffering huge losses and damages due to the blatant and outright violation of its rights by the defendant."

74. Learned Senior Advocate Shri Trivedi has also placed reliance on the judgment delivered by the High Court of Judicature at Bombay in case of Parle Agro Private Limited Vs. Parle Agro Private Limited decided on 28 March 2018.

75. Learned Senior Advocate Shri Trivedi has also placed reliance on the judgment of this Court in case of Gujarat Tea Depot Company & 1 Vs. Bhagaram Krupaji Ganchi in Appeal from Order No. 116 of 2015 decided on 04.08.2015, of which para 8 reads as under:

"Para 8. The trial court by the impugned order refused to grant injunction to the Plaintiffs. The learned Judge was of the opinion that the Plaintiffs failed to establish a prima facie right since the comparative study of both the marks would reveal that they are not identical or likely to deceptive much less cause confusion in relation to the goods in respect of which the trademarks are registered. Learned Judge was of the opinion that the Plaintiffs failed to establish that the mark of the Defendant was deceptively similar to that of the Plaintiffs registered trademark. It cannot be stated that the essential features of the trademark were adopted by the Defendant. The learned Judge recorded that there was no similarity in the two marks namely SHER BAKRI and WAGH BAKRI. Since the suit was not for passing off action but only for Page 59 of 124 Downloaded on : Tue Mar 02 00:34:41 IST 2021 C/AO/2/2021 CAV JUDGMENT infringement of the trademark, it was essential for the Plaintiffs to prove the use of the Plaintiffs' mark by the Defendant."

xxx

(iii) In case of Madan Lal Arora v. Soni Udyog (supra), learned Single Judge of the High Court in an application for injunction against the Defendant for using the trademark LION BRAND in respect of sale of goods of wire netting which is similar to trade mark TIGER BRAND of the Plaintiff, observed that it is true that the words "TIGER" and "LION" are not phonetically similar, but the test to be applied is whether an unwary and innocent purchaser could be persuaded to purchase the goods of the defendants as those of the plaintiff. It was observed that the wire nettings were mostly purchased by the carpenters, who are barely literate, is likely to create confusion."

76. Learned Senior Advocate Shri Trivedi has also placed reliance on the judgment of Delhi High Court in case of N. Ranga Rao & Sons Vs. Anil Garg & Ors., decided on 02.12.2005 reported in 2005 SCC Online Del 1293. Of which Para Nos. 66, 67 and 68 which read as under:

"Para 66. I have given a deep thought to these rival contentions.

Para 67. It would be appropriate to first consider the parameters on which the alleged deception has to be. In this behalf, the judgment in Kellogg Company's case (supra) is extremely relevant. There has been reference made to Schweppes Ld.'s case (supra) to come to the conclusion that if a person is so careless that he does not look and does not treat the label fairly, then he is not the Page 60 of 124 Downloaded on : Tue Mar 02 00:34:41 IST 2021 C/AO/2/2021 CAV JUDGMENT person who would form the basis of the test. There is force in the contention of learned counsel for the plaintiff that the dictum in Kellogg Company's case (supra) to the extent it relied upon Schweppes Ld.'s case (supra) would not hold good in view of the subsequent development of law in M/s. S.M. Dyechem Ltd.'s case (supra) and the review thereof in Cadila Health Care Ltd.'s case (supra), the Apex Court while relying upon the observations in Schweppes Ld.'s case (supra) observed that if the customer does not distinguish the characteristics of the two packings, then he is not a customer whose view can properly be regarded by the Court.

However in Cadila Health Care Ltd.'s case (supra), this very aspect was specifically considered. The Apex Court took note of the earlier judgments in this behalf and came to the conclusion that the decisions of the Apex Court in the last four decades preceding clearly laid down that what had to be seen in the case of a passing off action between the competing marks and the likelihood of deception or confusion. The Apex Court found that the principle of phonetic similarity cannot be jettisoned and in determining the test vis-a-vis the person who has to be kept in mind as a customer, the views expressed in Schweppes Ld.'s case (supra) were found to be contrary to the decision of the Apex Court in Amritdhara Pharmacy v. Satya Gupta, .

Para 68. In Amritdhara Pharmacy's case (supra), the product was examined from the prospect of it being purchased by villagers and townfolk, literate as well as illiterate and, thus, the question has to be approached from the point of view of a man of average intelligence and imperfect recollection. A trade may be related to goods largely sold to illiterate or badly educated persons and the Page 61 of 124 Downloaded on : Tue Mar 02 00:34:41 IST 2021 C/AO/2/2021 CAV JUDGMENT purchaser in India cannot be equated with a purchaser of goods in England."

Therefore, learned Senior Advocate Shri Trivedi has emphatically and fervently submitted to buttress his arguments that the judgment produced by the petitioner (Original-defendant) in case of Kellogg Company vs. Pravin Kumar Bhadabhai would not held good law in view of the subsequent development of law, therefore, the learned trial Court has rightly exercised discretion in favour of the original plaintiff (present respondent).

77. Learned Senior Advocate Shri Trivedi has also placed reliance on the judgment in case of Cadila Health Care Ltd Vs. Cadila Pharmaceuticals Ltd, reported in (2001) 5 SCC 73, of which Para Nos. 17, 18 and 20 which read as under:

"Para 17: Our attention was drawn to a recent judgment of this Court in S.M. Dyechem Ltd. Vs. Cadbury (India) Ltd. (2000) 5 SCC 573 where in a passing off action, the plaintiff, which was carrying on the business under the mark of Piknik, filed a suit for injunction against the defendant which was using the mark of Picnic for some other chocolates sold by it. On the allegation that the defendants mark was deceptively similar, the trial court had issued an injunction which was reversed by the High Court. On appeal, the decision of the High Court was affirmed. One of the questions, which this Court considered, was that for grant of temporary injunction, should the Court go by the principle of prima facie case, apart from balance of convenience, or comparative strength of the case of either parties or by finding out Page 62 of 124 Downloaded on : Tue Mar 02 00:34:41 IST 2021 C/AO/2/2021 CAV JUDGMENT if the plaintiff has raised a triable issue. While Considering various decision on the point in issue, this Court rightly conclude at p. 591 as follows: (SCC para 21).

Para 18: We are unable to agree with the aforesaid observations in Dyechems case (supra). As far as this Court is concerned, the decisions in the last four decades have clearly laid down that what has to be seen in the case of a passing off action is the similarity between the competing marks and to determine whether there is likelihood of deception or causing confusion. This is evident from the decisions of this Court in the cases of National Sewing Thread Co. Ltd.s case (supra), Corn products refining Companys case (supra), Amritdhara Pharmacys case (supra), Durga Dutt Sharmas case (supra), Hoffmann-La Roche & Co. Ltd.s case (supra).

Having come to the conclusion, in our opinion incorrectly, that the difference in essential features is relevant, this Court in Dyechems case (supra) sought to examine the difference in the two marks Piknic and Picnic. It applied three tests, they being 1) is there any special aspect of the common feature which has been copied ? 2) mode in which the parts are put together differently i.e. whether dissimilarity of the part or parts is enough to make the whole thing dissimilar and 3) whether when there are common elements, should one not pay more regard to the parts which are not common, while at the same time not disregarding the common parts? In examining the marks, keeping the aforesaid three tests in mind, it came to the conclusion, seeing the manner in which the two words were written and the peculiarity of the script and concluded that the above three dissimilarities have to be given Page 63 of 124 Downloaded on : Tue Mar 02 00:34:41 IST 2021 C/AO/2/2021 CAV JUDGMENT more importance than the phonetic similarity or the similarity in the use of the word PICNIC for PIKNIK.

Para 20: Lastly, in Dyechem's case (supra), it was observed in para 54 as under:

As to scope of a buyer being deceived, in a passing-off action, the following principles have to be borne in mind. Lord Romer, L.J. has said in Payton & Co. Vs. Snelling, Lampard & Co. (1900) 17 RPC 48 that it is a misconception to refer to the confusion that can be created upon an ignorant customer that the courts ought to think of in these cases is the customer who knows the distinguishing characteristics of the plaintiffs goods, those characteristics which distinguish his goods from other goods in the market so far as relates to general characteristics. If he does not know that, he is not a customer whose views can properly be regarded by the Court. (See the cases quoted in N.S. Thread & Co. Vs. Chadwick & Bros. AIR 1948 Mad 481 which was a passing-off action.) In Schweppes Case (1905) 22 RPC 601 (HL) Lord Halsbury said, if a person is so careless that he does not look and does not treat the label fairly but takes the bottle without sufficient consideration and without reading what is written very plainly indeed up the face of the label, you cannot say he is deceived.

These observations appear to us to be contrary to the decision of this Court in Amritdharas case (supra) where it was observed that the products will be purchased by both villagers and townfolk, literate as well as illiterate and the question has to be approached from the point of view of a man of average intelligence and imperfect recollection. A trade may relate to goods largely sold to Page 64 of 124 Downloaded on : Tue Mar 02 00:34:41 IST 2021 C/AO/2/2021 CAV JUDGMENT illiterate or badly educated persons. The purchaser in India cannot be equated with a purchaser of goods in England. While we agree that in trade mark matters, it is necessary to go into the question of comparable strength, the decision on merits in Dyechems case (supra) does not, in our opinion, lay down correct law and we hold accordingly."

Therefore, learned Senior Advocate Shri Kamal Trivedi has submitted that, what is held in case of Dyechem Ltd. case (supra) is no longer a good law.

78. Learned Senior Advocate Shri Trivedi has also placed reliance on the judgment in case of Wander Ltd and Another Vs. Antox India P. Ltd, reported in 1990 (Supp) SCC 727 of which Para No. 14 which reads as under:

"Para 14: The appeals before the Division Bench were against the exercise of discretion by the Single Judge. 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 the court Page 65 of 124 Downloaded on : Tue Mar 02 00:34:41 IST 2021 C/AO/2/2021 CAV JUDGMENT 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. After referring to these principles Gajendragadkar, J. in Printers (Mysore) Private Ltd. v. Pothan Joseph :

... These principles are well established, but as has been observed by Viscount Simon in Charles Osention & Co. v. Johnston the law as to the reversal by a court of appeal of an order made by a judge below in the exercise of his discretion is well established, and any difficulty that arises is due only to the application of well settled principles in an individual case. The appellate judgment does not seem to defer to this principle."

79. Learned Senior Advocate Shri Trivedi has also placed reliance on the judgment in case of Ramdev Food Products (P) Ltd Vs. Arvindbhai Rambhai Patel reported in (2006) 8 SCC 726 of which Para Nos. 9 & 10 which read as under:

Para 9: On the premise that the respondents had been infringing its rights, trade name and logo, the appellant company filed a suit in the City Civil Court, Ahmedabad, which was numbered as CS No.828 of 2000, inter alia, for the following reliefs :

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"(A) The defendants by themselves, their servants, agents, partners and all persons claiming through or under them be restrained by a perpetual order of this Hon'ble Court from, in any manner, using the trade mark 'RAMDEV' in their label, packing materials, advertising materials, business materials etc., in respect of goods which are covered under registration of the plaintiff's mark and/or any mark which may be identical and/or deceptively similar to the plaintiff's registered trade mark and thereby restrain them from infringing the plaintiff's registered trade mark bearing No. 447700 and other marks bearing No.531084, 531085, 545253, 545253, 545255, 545257 and 545258."

Para 10: An application for injunction was also filed wherein the following interim prayers were made :

"(A) The defendants by themselves, their servants, agents, partners and all persons claiming through or under them be restrained by an order of temporary injunction of this Hon'ble Court from, in any manner, using the trademark 'RAMDEV' in their label, packing materials, advertising materials, business materials etc. in respect of goods which are covered under registration of the plaintiff's mark and/or any mark which may be identical and/or deceptively similar to the plaintiff's registered trade mark and thereby restrain them from infringing the plaintiff's registered trade mark bearing No.447700 and other marks bearing No.531084, 531085, 545253, 545255. 545257 and 545258, till the hearing and final disposal of the suit.

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(B) The defendants by themselves, their servants, agents, partners and all persons claiming through or under them be restrained by an order of temporary injunction of this Hon'ble Court from using in relation to any spices, masala bearing the name 'RAMDEV' as produced with separate list or any label or packing material or advertising material containing the trade mark 'RAMDEV' and/or any mark which is identical and/or mark containing word 'RAMDEV' either on label or in trading style or trading name, so as to pass off the defendants goods and/or business as that of the plaintiff, till the hearing and final disposal of the suit." An application was also filed for appointment of a Court Commissioner"."

80. Learned Senior Advocate Shri Kamal Trivedi, further emphasized on the aspect that the Madras High Court had not considered the dictum of Hon'ble Supreme Court, therefore, also the reliance placed by the learned advocate for the petitioner is not applicable to the present case.

81. Learned Senior Advocate Shri Kamal Trivedi, further argued that as per the catena of decisions of Hon'ble Supreme Court, the product is not required to be seen side-by-side but how the average person tests, note of the product is important.

82. Learned Senior Advocate Shri Kamal Trivedi has also taken this Court to Para-62 of the impugned order that the plaintiff being prior user, therefore, defendant's stand is not tenable. On all such grounds, learned Page 68 of 124 Downloaded on : Tue Mar 02 00:34:41 IST 2021 C/AO/2/2021 CAV JUDGMENT Senior Advocate Shri Kamal Trivedi has emphasized that the learned trial Court has rightly observed the prima facie case, balance of convenience, irreparable loss in favour of the Respondent / Original Respondent, therefore, there is no need to interfere with the order of learned trial Court. Further, learned Senior Advocate Shri Kamal Trivedi has requested this Court that everybody has an art of writing of judgment, somebody writes prima facie case few time, therefore, writing of judgment differs from judges to judges, therefore, he forcefully argued, merely not having discussion on I.O. case would not set aside the impugned order in toto whereas somebody writes prima facie case, therefore, writing of judgment differs from judges to judges.

83. Learned Senior Advocate Mr. Kamal Trivedi has further argued that though everybody has right to chose the colour but if there is some similarity, in that case nobody would like to be deceived. Further, learned Senior Advocate Mr. Kamal Trivedi has taken this court to the decision in case of Parle Products (P) Ltd. v. J.P. & Co. Mysore reported in (1972) 1 SCC 618 where identical matter is discussed that one should not compare only label but one should compare the colour scheme and another arts, whereas in the present case, colour is saffron and the same is contended why no other colour is used by the so called Appellant / Original Defendant. One should not go in generic, everybody Page 69 of 124 Downloaded on : Tue Mar 02 00:34:41 IST 2021 C/AO/2/2021 CAV JUDGMENT has a right to use colour but when there is a registered trade mark and registered copy right, in that case one should be prevented from using the same. Further, the present Respondent / Original Plaintiff has business of Rs.12 Crores per year, and therefore, when the Appellant / Original Defendant has yet to enter in the market, and therefore, the Respondent / Original Plaintiff has rightly instituted the quia timet action. If the manufacture is started in that case, there will be huge irreparable loss to the Respondent / Original Plaintiff. Learned Senior Advocate Shri Kamal Trivedi has referred to all the authorities which were discussed earlier in nutshell and emphasized that the in the case of Mother Dairy Fruit & Vegetable Pvt. Ltd. v. Sri Vinayaka Milk products reported in (2015) SCC On Line Del 10637, where the Vinayaka Milk was having identical colour and design and therefore the Hon'ble Supreme Court has restrained the Defendants though the names were to be on the colours and other scheme like blue colour is generic name but here in the present case the orange colour is generic name, still however, the Hon'ble Supreme Court has passed the order in favour of the Plaintiff and the Defendant was restrained for the same. Learned Senior Advocate Mr. Kamal Trivedi has also vehemently argued that one should see through the average intelligence of the person how the common man takes the product instead of relying only on intellectual person only and also drawn attention of this Court in case Marico Limited v. Pratik Goyal reported Page 70 of 124 Downloaded on : Tue Mar 02 00:34:41 IST 2021 C/AO/2/2021 CAV JUDGMENT in 2014 SCC On Line Del 1786. Lastly, learned Senior Advocate Shri Kamal Trivedi has taken this Court to five judgments which were heavily placed reliance by the learned Advocate Mr. Mehul Sharad Shah for the Appellant / Original Defendant that how the said judgments are not relevant to the present case.

84. Learned Senior Advocate Mr. Kamal Trivedi has drawn the attention of this Court to the judgment of the Hon'ble Supreme Court in case of S.M.Dychem Ltd. v. M/s Cadbury (India) Ltd. reported in (2005) 5 SCC 573 and submitted that the learned Advocate for the Appellant / Original Defendant has heavily placed reliance on this English Judgments. But in the case of Cadila Health Care Ltd Vs. Cadila Pharmaceuticals Ltd (supra) on page no. 206 of the Compilation. The S.M.Dychem Ltd. Case (supra) was not the correct law and therefore the reliance placed by the learned Advocate for the Appellant / Original Defendant cannot be applicable to the facts of the present case.

85. Further, it is also discussed in the Cadila Health Care Ltd Vs. Cadila Pharmaceuticals Ltd (supra) that the English Judgment cannot be based to the situation in India and also argued that merely application for availing the trade mark does not create any right. It is also contended Page 71 of 124 Downloaded on : Tue Mar 02 00:34:41 IST 2021 C/AO/2/2021 CAV JUDGMENT that the Respondent / Original Plaintiff has a registered trade mark and copy right and therefore Appellant / Original Defendant has no right to use the trade mark of the Respondent / Original Plaintiff.

86. Learned Senior Counsel Mr. Kamal Trivedi has also drawn the attention of this Court in the case of Kellogg Company vs Pravin Kumar Bhadabhai reported in 1996 PTC (16) 187 wherein learned Senior Advocate has drawn the attention at paragraph 16 where the judgment in case of Payton & Co. v. Snelling, Lampard & Company is discussed, which is English judgment, which is also discussed in Cadila Health Care Ltd.'s case (supra) and it is observed in Cadila Health Care Ltd.'s that this English judgment cannot be relied.

87. Further, it is pointed by the learned Senior Counsel Shri Kamal Trivedi that Gluco is generic word like in the present case the orange is generic name but the latest law is considered in the submission of the aggrieved party on generic name. Ultimately, learned Senior Advocate has argued on the basis of the judgment in case of Parle Products (P) Ltd Vs. J. P. And Co., Mysore (supra) that the courts should compare similarity side by side and how the ordinary person will look the drug and ultimately impliedly over-ruled the Madras High Court Judgment. Page 72 of 124 Downloaded on : Tue Mar 02 00:34:41 IST 2021 C/AO/2/2021 CAV JUDGMENT (H) Joint Legal Aspects by Learned Advocate Mr. Mehul Sharad Shah for the Appellant / Original Defendant:

88. Further, learned Advocate Ms. Mehul Sharad Shah for the Appellant / Original / Original Defendant has vehemently and fervently argued that pursuant to the cations, the reliance is placed by him in case of Britannia Industries Ltd. v. ITC Limited reported in 2017 (70) PTC 66 wherein only the High Court of Delhi was having identical issue and held that essential attributes which need to be established for a successful passing off action have often been considered as the classical trinity, which, in the words of Lord Oliver in Reckitt & Colman Products Ltd. v. Borden, 1990 RPC 341 HL are discussed. In that case injunction was sought for restraining Britannia from, inter alia, passing off ITC's alleged rights in the trade dress / packaging / label and dilution of the market etc. Reliance is placed upon paragraph 19 that it is also pointed out in Kerly that a trader, who introduces a new feature into the get-up of his goods, does not thereby acquire any proprietary interest in it so as to be able to prevent its use by competitors, until it has become so identified with his goods that its use by others is calculated to deceive. The question that needs to be examined is whether the combination of yellow and blue in the packaging of ITC's biscuits had become so identified with ITC's biscuits that its use by others, such as Britannia, would be regarded as Page 73 of 124 Downloaded on : Tue Mar 02 00:34:41 IST 2021 C/AO/2/2021 CAV JUDGMENT being calculated to deceive? We do not think that in the short span of time and, particularly when Britannia has alleged that the first invoice of ITC is of May 2016, the yellow-blue combination in the packaging of ITC's biscuits had become so identified with ITC so as to enable ITC to prevent its use by competitors. Ultimately, learned Advocate Mr. Mehul Sharad Shah for the Appellant has heavily placed reliance on the aspect that it is not easy for a person to claim exclusivity over a colour combination particularly when the same has been in use only for a short while. It is only when it is established, may be even prima facie, that the colour combination has become distinctive of a person's product that an order may be made in his favour. Learned Advocate Mr. Mehul Sharad Shah has vehemently argued that in the present case also, the Respondent / Original Plaintiff has claimed orange colour as exclusive right which is not proper and therefore learned trial court has committed an error both in law as well as in appreciating the facts and exercised the discretion which is perverse and therefore this court is require to interfere to set aside the same.

89. Learned Advocate Mr. Mehul Sharad Shah has placed reliance upon the judgment of the Hon'ble Apex Court in case of Cipla Limited v. M.K.Pharmaceuticals reported in 2007 Law Suit (Del) 526 = 2008 (36) PTC 166 wherein it is held in paragraph 5 that even if there has been Page 74 of 124 Downloaded on : Tue Mar 02 00:34:41 IST 2021 C/AO/2/2021 CAV JUDGMENT deliberate copying of similar solour and shape of the plaintiff's tablets that would not amount to passing off, since colour and shape are not indicative of the drugs neither they are associated with the trade mark. There may be several other tablets of the similar shape and colour available in the market. His Lordship was supported in his above view by Rizla Limited v. Bryant and May Limited reported in 1986 RPC 389.

90. Learned Advocate Mr. Mehul Sharad Shah has argued that the Appellant / Original Defendant is selling premium tea and therefore the purchaser is either middle class or higher middle class and therefore there is no chance for deceptiveness. Further, it was held in that case that there should not be any monopoly over the colours and therefore the learned trial court has not rightly decided the temporary injunction in favour of the Respondent / Original Plaintiff. Further, it is also vehemently submitted by learned Advocate Mr. Mehul Sharad Shah that normally lower class people would not for for premium tea and therefore also the learned trial court has committed mistake in exercising the discretion in favour of the Respondent / Original Plaintiff.

91. Learned Advocate Mr. Mehul Sharad Shah has also placed reliance on the judgment of the Hon'ble Apex Court in case of Colgate Palmolive Co. Ltd. v. Patel and Anr. reported in 2005 Law Suit (Del) 1540 = Page 75 of 124 Downloaded on : Tue Mar 02 00:34:41 IST 2021 C/AO/2/2021 CAV JUDGMENT 2005 (31) PTC 583 wherein learned Advocate Mr. Mehul Sharad Shah has placed reliance on paragraph 25 and submitted that in that case even if the plaintiff's case that the word 'COLGATE' and the red and white colour scheme, both constitute essential features, then at best the defendants could have been held to have adopted only one of the essential features i.e. 'red and white' colour scheme and not essential features in plural as required by the above judgment. Secondly, in the earlier portion of the paragraph relied upon by the plaintiffs therein, it has been held that even in an action for infringement the plaintiff must make out that the use of the defendant's mark is likely to deceive unless the similarity between the two marks is visually or phonetically so close that the Court reaches a conclusion that there is an imitation. Further it is held that in view of the court, the defendant's mark 'AJANTA' is visually and phonetically not so close as to indicate a blatant imitation, straightaway leading to an inference of infringement notwithstanding the red and white colour combination. Learned Advocate Mr. Mehul Sharad Shah has also placed reliance upon paragraph 29 and 51 of that judgment and submitted that if one takes a look at the carton of the plaintiffs comprising of registered trademark 190279, it shows that the word 'COLGATE' in white on a red background i.e. the 'red and white' combination still remains the predominant feature of the plaintiff's mark even in the altered marks and the addition of a swirl of pincer device in blue or a splash of yellow Page 76 of 124 Downloaded on : Tue Mar 02 00:34:41 IST 2021 C/AO/2/2021 CAV JUDGMENT colour do not alter this predominant giving the plaintiff's mark a distinctive identity entitled to protection from passing off.

92. During the course of arguments, while learned Advocate Mr. Shah was reading the judgment in the case of Colgate Palmolive Co. Ltd. v. Patel and Anr. (supra), learned Senior Advocate Shri Kamal Trivedi for the Respondent / Original Plaintiff has requested this court to refer to paragraph 52 of the judgment which reads thus:

"52. After taking into account the similarities in the defendant's product which has been registered by comparing it with the plaintiff's registered mark, I am of the view that in respect of the competing two products, there is sufficient resemblance between the plaintiff's and the defendant's product to justify the plea of passing off. This is illustrated by the following similarities:

(i) The adoption of a red coloured background by the defendant to the similar extent as that of the plaintiff on the front panel of the carton.

(ii) The adoption of white colour for inscribing the brand name AJANTA is similar to the brand name 'COLGATE' which is also inscribed in white colour.

(iii) Similarity in the size of the two brand names 'COLGATE' and Page 77 of 124 Downloaded on : Tue Mar 02 00:34:41 IST 2021 C/AO/2/2021 CAV JUDGMENT 'AJANTA'.

(iv) Similar placement of the two brand names 'AJANTA' and 'COLGATE' on the front panel of the carton.

(v) The plaintiff being the established market leader had already established a market reputation in respect of its red and white product marked 'COLGATE'.

(vi) The nature of goods in respect of which the two marks 'COLGATE' and 'AJANTA' are used as trademark are the same i.e. toothpaste.

(vii) Toothpaste is a fast turnover item and an intending purchaser who may or may not be literate is not likely to bestow much attention on a daily use product such as a toothpaste."

93. Further, learned Senior Counsel Shri Kamal Trivedi has placed reliance upon paragraph 55 and 57 of the judgment which reads thus:

"55. However, during the course of the arguments, suggestions were invited from the parties and the parties have given their suggestions for alternate packaging. In my view the suggested carton of the defendants which is marked as 'XX' would not amount to passing off of the plaintiff's product as per the principles laid down in the above noted judgments. The only change made to Page 78 of 124 Downloaded on : Tue Mar 02 00:34:41 IST 2021 C/AO/2/2021 CAV JUDGMENT 'XX' given as sample by the defendant is that it will be required to print AJANTA in Hindi also in golden colour.

57. Consequently, the defendants are hereby directed to inscribe the above mark 'AJANTA HEALTH' shown in Hindi along with the two swirls on left and right of the said mark in Golden Colour in the instead of the colour white as shown in Carton 'XX'."

94. Learned Advocate Mr. Shah has further argued that one should not claim exclusivity of orange colour and also draw the attention of this court to the order passed by the learned trial court and submitted that the learned trial court has mainly passed temporary injunction on passing off whereas there is no discussion of prima facie case for infringement of trademark nor any copyright.

95. Learned Advocate Mr. Shah has further drawn the attention of this court in case of Amrit Banaspati Company Limited v. Suraj Industries Limited reported in 1994 Law Suit (HP) 68 = AIR 1996 HP 70 and placed reliance upon paragraph 41 which are reproduced herewith as under:

"41. On the basis of the aforesaid discussion, first of all the plaintiffs have not been able to prove prima facie case in their favour for an action based on passing-off goods as the goods of another. In case the injunction, prayed for, is granted it will be the Page 79 of 124 Downloaded on : Tue Mar 02 00:34:41 IST 2021 C/AO/2/2021 CAV JUDGMENT defendants who would be put to irreparable injury inasmuch as without there being any prima facie case in favour of the plaintiffs, the defendants are likely to suffer loss in their income which they are deriving from the sale of those pouches of ANGAN ghee. Balance of convenience in such circumstances would not be in favour of the plaintiffs at all."

96. Learned Advocate Mr. Shah at the cost of repetition has submitted that the Appellant / Original Defendant has submitted that the Respondent / Original Plaintiff started the present trademark in the year 2020 though since the year 1925 always the same logo was not available which is in the year 2020 like Man, Goat, Cup and Saucer etc. Learned Advocate Mr. Shah has also submitted that 19 other persons (other traders) are using the same logo. Therefore, there cannot be any monopoly over the orange colour for the trademark or for the copyright. Further, the trade test is totally different.

97. Per contra, learned Senior Advocate Shri Kamal Trivedi for the Respondent / Original Plaintiff has submitted that the Respondent / Original Plaintiff has registered trademark and copyright, therefore he should be protected. Further, he has submitted that one should not see side by side trade product as a whole which includes the colour, shape, design and everything. Further, one cannot distinguish that in the case of Cadila Health Care Ltd. (supra), it was only for the drugs and therefore Page 80 of 124 Downloaded on : Tue Mar 02 00:34:41 IST 2021 C/AO/2/2021 CAV JUDGMENT the two judgments which were not good law as held by the Hon'ble Supreme Court is to be seen but one cannot distinguish the internal discussion about the English law which is of no use for Indian Law so far as the similarity and dissimilarity is concerned and therefore, the learned trial court has rightly exercised the discretion on the basis of registration of trademark. Further the Appellant / Original Defendant in the present case has huge products and when they get an idea of starting the tea business, in that case they should think about everything including similarity and dissimilarity of the product which is used by the present Respondent / Original Plaintiff and which is in prior use as well as the registered trademark which has more value than any other product especially the present Appellant / Original Defendant, which has yet to start the business [proposed product / proposed trade name] and therefore the Respondent / original Plaintiff has rightly instituted the suit coupled with interim injunction for having quia timet action against the Appellant / Original Defendant who has lost the defence for temporary injunction and ultimately the learned trial court has rightly decided the temporary injunction in favour of the Respondent / Original Plaintiff and there is no requirement of interference by this court and has prayed to dismiss the present Appeal from Order.

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98. Further, learned Senior Advocate Shri Kamal Trivedi has fairly submitted that he is ready to conduct full fledged trial within six months or three months or within two months on merits but has requested that his business which is a registered trademark may not be disturbed in the eyes of law, during the pendency of the Suit.

(I) Points Framed For Conclusion:

99. On the basis of the arguments advanced by both the sides and on the basis of the settled principles of law, the following two points have been framed for conclusion of this Appeal from Order:

(i) Whether the Appellant / Original Defendant proves that the powers exercised by the learned City Civil Court No.29, Ahmedabad below Exh.7 for interim injunction in Civil Suit No. 884/2020 is arbitrary, perverse, capricious, illegal and against the principles of law?

             (ii)    What Order?


      100.   My Reply to the above points is as under:
                     (i)     In negative.
                     (ii)    As per final order.


(J)    REASONS:

101. Having heard the arguments advanced by both the sides and also on the basis of the authorities / citations referred to by both the sides, Page 82 of 124 Downloaded on : Tue Mar 02 00:34:41 IST 2021 C/AO/2/2021 CAV JUDGMENT before we advert to the controversy and the findings, it would be appropriate to mention in brief the scope of the Appeal.

Scope of Appeal:

102. As per the settled principles of law, the Appellant 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. After all it is an equitable relief wherein the Appeal is against exercise of discretion is said to be Appeal on principle. The Appellate court will not reassess the material and seek to reach to a conclusion different from the one reached by the court below if the one reached by that court was reasonably possible or not. The appellate court would normally not be justified in interfering the exercise of the discretion under appeal solely on the ground that if it had considered the matter at the trial stage, it would have to a contrary conclusion. On the basis of the judgment in Wander Ltd v. Antox India P. Ltd. (supra), wherein it was held that 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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103. The Respondent No.1 - Gujarat Tea Depot Company and Respondent No.2 - Gujarat Tea processors & Packers Private Limited (Original Plaintiffs) have filed Civil Suit No. 884 of 2020 in the City Civil Court at Ahmedabad against the Appellant / Original Defendant -

Vimal Dairy Limited for permanent injunction restraining the Appellant / Original Defendant and its agents from manufacturing, marketing, advertising for sales, the Appellant's / Original Defendant's products under the Trade Mark / Label "VIMAL" "TM Application No. 4352164 including its Art Work, Colour Scheme, Get-up, Arrangement and / or any other Label, which is substantial and material reproduction of the label of the Respondents / Original Plaintiffs from committing an act of infringement of Respondent's / Original Plaintiff's Trademarks / Labels. The Respondents / Original Plaintiffs have further prayed in the Suit for directions to the Appellant / Original Defendant to give true and correct accounts of the goods manufactured and marketed by them under the Trademark / Label "VIMAL" and after verifying the accounts and deriving at the amount of the profit earned by the Appellant / Original Defendant, to pay the said amount with 18% interest coupled with and application for temporary injunction along with the Suit under Order 39 Rule 1 and 2 of the Code with similar reliefs prayed in the Suit. Page 84 of 124 Downloaded on : Tue Mar 02 00:34:41 IST 2021 C/AO/2/2021 CAV JUDGMENT

104. The learned Trial court after hearing both the sides allowed the temporary injunction under Order 39 Rule 1(a) of the Code against which the Appellant / Original Defendant has approached this Court.

105. The prime grounds of the Appeal is based on the Trial Court order being ex facie illegal, against the provisions of Trademark and Copyright and against the evidence on record, and therefore, requires to be quashed. It is an undisputed fact that the Respondents / Original Plaintiffs are using "WAGH BAKRI" since the year 1925, but simultaneously, the court is in agreement that the present "WAGH BAKRI PREMIUM TEA"

is started before two years i.e. in the year 2019. Therefore, the main grievance of the present Appellant / Original Defendant is with regard to the different Trademark since the Defendants / Original Plaintiffs have "WAGH BAKRI" whereas the Appellant / Original Defendant has "VIMAL". Further, the Respondents / Original Plaintiffs have Saffron Colour upon their product whereas the Appellant / original Defendant has Dark Saffron Colour upon their product and therefore there is quite dissimilarity. Hence, there is no question of infringement of copyright nor there is any question of passing off action by the Appellant / Original Defendant to the Respondents / Original Plaintiffs and therefore the learned Trial Court has passed the order which is perverse, arbitrary, illegal and capricious.

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106. In the case of Corn Products Refining Co. v. Shangrila Food Products Ltd. Reported in AIR 1960 SC 142, it was held that the reputation among general public should attach to trade mark and not to the maker of the goods. Further, it is held that tests for determining similarity of marks - trade connection between different goods - Trade marks 'Gluvita' used with reference to biscuits and 'Glucovita' used with reference to glucose, held were likely to cause deception or confusion. Therefore, the Court has to see the similarity between the trade products.

107. The following is the latest trade logo of both; the Appellant / Original Defendant and the Respondents / Original Plaintiffs wherein the Appellant / Original Defendant is having Application No. 4352164 dated 19.11.2021:

(Original Plaintiffs /Respondents) (Original Defendant /Appellant) Page 86 of 124 Downloaded on : Tue Mar 02 00:34:41 IST 2021 C/AO/2/2021 CAV JUDGMENT

108. As per authorities submitted by learned Senior Advocate for the Respondents / Original Plaintiffs, use of single colour of the Respondents / Original Plaintiffs, did not qualify single colour to be trademark but in the present case, in addition to colour, there are so many similarities such as;

Comparison of trade marks of the Respondents / Original Plaintiffs and the Appellant / Original Defendant:

(a) The tag line of both the trademarks start with "PREMIUM". The tagline for "VIMAL" is "PREMIUM CTC LEAF TEA" while that of "WAGH BAKRI" is "PREMIUM LEAF TEA" which is likely to confuse the public at large.

(b) The cup and plate used as a shape for the trademark are deceptively similar with white colour and similar shape of green leaves placed on the plate.

(c) The logo of VIMAL is placed in oval shaped circle with a reddish background and that of a WAGH BAKRI's logo is also similar to it with a reddish background.

(d) The background of the logo for VIMAL uses similar colour that of WAGH BAKRI which is likely to create confusion among the public at large.

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109. If we take out both the names i.e. 'WAGH BAKRI' and 'VIMAL'; from both the products, prima facie it appears that the Respondents' / Original Plaintiffs' i.e. Copyright Label contains 'WAGH BAKRI' printed in White Font inside round Brown Colour Oval Shape with White coloured Cup and Saucer full of tea with Leaf placed on the top of the Saucer. Even the original colour of the Respondents is orange whereas the Appellant's / Original Defendant's colour is dark saffron. Leaf Tea is common in both cup and saucer are common and design common. In the Respondents / Original Plaintiffs it is written 'PREMIUM LEAF TEA' whereas in the Appellant / Original Defendant it is written 'PREMIUM CTC LEAF TEA'. By comparing two products namely of the Respondents / Original Plaintiffs and the Appellant / Original Defendant, it further prima facie appears that the Appellant / Original Defendant has copied the Respondents' / Original Plaintiffs' product except in TRADE- NAME.

110. Therefore, in sum and substance, Ex-facie there are so many similarities and therefore, there are all chances of confusion by the ordinary man of average intelligence and also by lower class and middle class and others too, therefore, the ex facie, there is some substances in observation made by the learned trial Court for exercising the equitable Page 88 of 124 Downloaded on : Tue Mar 02 00:34:41 IST 2021 C/AO/2/2021 CAV JUDGMENT relief, in favour of original plaintiff who is respondent in the present matter, resultantly, the order of trial Court is not perverse.

111. Learned Advocate Mr. Mehul Shah has heavily argued that the learned Trial Court has not answered all the defence taken by the Appellant / Original Defendant and mainly up to 80 pages of his order, the arguments are only narrated and thereafter holding prima facie case, balance of convenience and in an arbitrarily manner, the temporary injunction is granted which is perverse, capricious and illegal.

112. It is to be noted that the learned Trial Court has at page no. 38 of the judgment has discussed about the judgment Hon'ble Delhi High Court in the case of Parle Products Pvt. Ltd. v. J.P. And Co., Mysore reported in AIR 1972 SC 1359, relied upon by the learned Advocate for the Appellant / Original Defendant that the product involved is Corn Flakes, which may not be used by any illiterate customers. However, the product involved in the present case is Tea, which is purchased even by illiterate customers such as illiterate tea vendors. Therefore, by no stretch of imagination can the said judgment relied by the learned Advocate for the defendant be held applicable to the facts of the present case. On the contrary, the judgment, relied upon by the learned Advocate for the Plaintiffs, in the considered opinion of the Court, squarely applies to the Page 89 of 124 Downloaded on : Tue Mar 02 00:34:41 IST 2021 C/AO/2/2021 CAV JUDGMENT facts of the present case. Therefore, the learned Trial Court has rightly applied the ratio laid by the Hon'ble Apex Court in the case of Parle Products Pvt. Ltd. v. J.P. And Co., Mysore (supra) wherein it is held that when two marks, when placed side by side, may exhibit many and various differences, yet the main idea left on the mid by both may be the same. A person acquainted with one mark and not having the two side by side for comparison, might well be deceived, if the goods were allowed to be impressed with the second mark, into a belief that he was dealing with goods which bore the same mark as that with which he was acquainted. Marks are remembered rather by general impressions or by some significant detail than by any photographic recollection of the whole and therefore, it is not appearing that the learned Trial Court has not given any reasons, though there may be less of reasons (few reasons), but, it differs with loss of reasons (non-reasoned order), to some extent judicial writing is not suffering from "Breve Judiciale non cadit pro defectu formae". In the present case, pursuant to the impugned order passed by the learned City Civil Court No.29, Ahmedabad, it appears that it is not with loss of reasons and therefore, prima-facie, court is not inclined to interfere in the same.

113. Further, it is true and Court also joined with learned Advocate Mr. Mehul Sharad Shah for the Appellant / Original Defendant that so far as Page 90 of 124 Downloaded on : Tue Mar 02 00:34:41 IST 2021 C/AO/2/2021 CAV JUDGMENT the passing off action is concerned, registration of the product is not sine qua non nor conditio precedent, so merely registration of trade mark of the Respondents / Original Plaintiffs cannot drive for permanent rights of user if one establishes prior user or passing off action in common law.

114. Further, it is to be noted that the the trade mark of the Respondents / Original Plaintiffs is a registered trade mark coupled with the registered copy right in compared to the Appellant / Original Defendant who has just applied in the market has "proposed to be used". Therefore, when the product of present appellant/original defendant has not come in the market, they started using the product of Tea like original plaintiff, which is prima facie, in view of the learned Trial Court is infringing the rights of the Respondents / Original Plaintiffs in both ways i.e. passing off action in trade mark as well as infringement of copyright. Therefore, even if the Respondents / Original Plaintiffs have stated the "WAGH BAKRI PREMIUM TEA" just before two years i.e. from the year 2019 then also it is prior user in compared to the so called Appellant / Original Defendant, proposed to be used which is still not registered and therefore also there is no scope of interference in the order of the learned Trial Court.

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115. Learned Advocate Mr. Mehul Sharad Shah for the appellant has also heavily placed reliance upon the various judgments which would be discussed hereinafter, but at this juncture, the learned Trial Court has observed that Order 7 Rule 11 CPC for which learned Advocate Mr. Shah has vehemently and fervently argued that such discussion was not required under Order 7 Rule 11 of the CPC wherein learned Senior Advocate Shri Kamal Trivedi appearing with learned Advocate Mr. Y.J.Trivedi for the Respondents / Original Plaintiffs has replied that in the Reply filed by the Appellant / Original Defendant [written statement of the present Appellant) was having such defence, but at this juncture Order 7 Rule 11 is not required to be mentioned by the learned Trial Court. Further, as such there is no detailed discussion on Order 7 Rule 11 CPC, but, by just mentioning the provisions of Order 7 Rule 11 of CPC does not drive this court to observe the order as perverse, illegal or capricious. Further, it is to be mentioned that the observation on Order 7 Rule 11 of CPC is discussed in the case of Toni & Guj Products Ltd. v. Shyam Sunder Nagpal reported in 2013 SCC Online Del. 4712, in the impugned order.

116. Further, learned Advocate Mr. Mehul Sharad Shah for the Appellant / Original Defendant has also drawn the attention of this court in the discussion on the quia timet action, which is not required, wherein, Page 92 of 124 Downloaded on : Tue Mar 02 00:34:41 IST 2021 C/AO/2/2021 CAV JUDGMENT this court is of the opinion that when the Respondents / Original Plaintiffs has apprehension that its product will lose its credibility / goodwill if the Appellant / Original Defendant start manufacturing, which is similar to the Respondent's / Original Plaintiff's product. Upon such premises, the learned Trial Court has rightly exercised the concept of quia timet action.

117. Therefore, if the product is likely to cause confusion or to deceive the purchasers as to source or origin of the trade mark or the goods to be sold in future under the said mark irrespective of the fact; (i) whether goods intended to be sold are competitive goods or not; (ii) whether the intention to use of infringed trade mark is to trade or cash upon the reputation and goodwill of the Respondents / Original Plaintiffs earned over the years through extensive advertisement and huge expenses and;

(iii) whether there is likelihood of real or tangible damage or injury to the Respondents / Original Plaintiffs or reasonable probability if the same would take place. In other words, whether use of the trademark by the Appellant / Original Defendant is likely to be associated with the Respondents' / Original Plaintiffs' trade mark or business; and lastly, whether the hardship suffered by the Respondents / Original Defendants would be greater than that of the Appellant / Original Defendant if the injunction is not granted against the Appellant / Original Defendant. Page 93 of 124 Downloaded on : Tue Mar 02 00:34:41 IST 2021 C/AO/2/2021 CAV JUDGMENT Such aspect as discussed by way of authority by the learned Trial Court is just and proper.

118. The learned Trial Court has rightly discussed at page 90 of the judgment in paragraph 79 that the relief of passing off can be based even on an apprehension of threat of the Respondents' / Original Defendants' proposed launch of their products as a quia timet action.

119. The discussion made by the learned Trial Court in paragraph 79 of the Judgment is reproduced herein below:

"Para 79. Thus, it is clear from the aforesaid decision that the relief of passing off can be based even on an apprehension of threat of the defendant's proposed launch of their products as a Quia timet action. Therefore, as per the principles settled hereinabove, this Court is also of the view that as in the case of infringement of registered trade mark or passing off action, the intention and object of infringer is mainly to trade or cash upon widespread and invaluable goodwill and reputation established over the years at huge cost by the plaintiff and in the process there occurs a dilution of the trade mark if goods manufactured and sold by infringer happen to be of poor quality, the underline intention of a person who proposes to adopt either same or deceptively or confusingly similar trade mark or the corporate name is to encash and become unjustly rich by trading upon the goodwill and Page 94 of 124 Downloaded on : Tue Mar 02 00:34:41 IST 2021 C/AO/2/2021 CAV JUDGMENT reputation of the plaintiff. Defendants have made their application with the trademark VIMAL with the similar color combination get up, arrangement and background as that of the plaintiffs for proposed to be used. I may ask a question for myself if at all the defendants have got a trademark registered, albeit under the class of proposed to be used, are they not going to use the same and if they started using the same, will not prejudice the case of the plaintiffs? The answer to the aforesaid question is Yes. As has been rightly held in the aforesaid decision, to expect the aggrieved party to wait and watch for the opening of business or manufacturing or sale or goods under the apprehended infringement of trade mark is too much. A stitch in time always saves nine and that is what is the essence of Quia Timet Action. With the onset of information technology in modern times, registration of a website which is popularly konwn as domain name, a party owning a website has a right to protect the same if any person registers the website with a name which is inherently deceptive. In such cases either party is directed to change the name of the site or handover to its owner. On the same pattern and pedestal is the threatened or apprehended invasion of the trade mark or Corporate name. I am therefore of the prima facie opinion that even under the principles of Quia Timet also the plaintiffs definitely have cause of action for filling the present suit against the defendants and therefore, the suit of the plaintiffs cannot be rejected under the provisions of Order VII Rule

-11(a) of the Code of Civil Procedure, 1908."

120. Learned Advocate Mr. Mehul S. Shah has also placed reliance on the word device as used in the application that the colour was not used Page 95 of 124 Downloaded on : Tue Mar 02 00:34:41 IST 2021 C/AO/2/2021 CAV JUDGMENT but here, prima facie, in the product of the Respondents / Original Plaintiffs is registered trade mark coupled with prior user and therefore merely in column of application form the so-called orange colour is not used would not make dis-entitlement of equitable relief. Further, as per settled principles of law this Court is not required to re-appreciate the prima facie evidence neither to insert anything more but to examine whether the order is passed by the learned Trial Court is perverse, arbitrary, illegal or capricious or not.

121. Learned Advocate Mr. Shah has also placed reliance on the aspect that there are so many companies which are using identical orange colour. Therefore also the Appellant / Original Defendant should not be prevented but the Respondents / Original Plaintiffs are dominus litus and if the Respondents / Original Plaintiffs have taken quia timet action against the Appellant / Original Defendant, upon such premises, this court cannot take into consideration about the use of colour orange by other traders.

122. Learned Advocate Mr. Mehul Sharad Shah has also submitted written notes inviting the attention of this Court on the discrepancy and material irregularity in the order passed by the learned Trial Court.

123. It is urged that in the first para, it is with regard to the prayer of temporary injunction at Exh.7 as prayed by the Respondents / Original Page 96 of 124 Downloaded on : Tue Mar 02 00:34:41 IST 2021 C/AO/2/2021 CAV JUDGMENT Plaintiffs. In the second para it is with regard to the ad interim relief, which cannot be granted in the nature of final relief. This Court is in full agreement with the statement but after all, pursuant to the impugned order, it appears that the learned Trial Court has discussed the equitable relief only and in the operative portion of the order, equitable relief is granted, and therefore, merely the prayer for interim relief and the final prayer in the suit is matching, this court is not required to interfere with the granted equitable relief.

124. Learned Advocate Mr. Mehul Sharad Shah has stated that since there is no discussion about the basic ingredients i.e. prima facie case, balance of convenience and irreparable loss and therefore the present Appeal from Order is required to be remanded to the learned Trial Court for afresh adjudication. But as discussed earlier, the learned Trial Court has through not titled all the three ingredients of the equitable reliefs, like prima facie case, balance of convenience and irreparable loss, but simultaneously, indirectly, the same aspect is mentioned and discussed and lastly the learned Trial Court has made the conclusion on this aspect. Further, this Court is in agreement with the submission made by learned Senior Advocate Shri Kamal Trivedi for the Respondents / Original Plaintiffs that an art of writing judgment and order differs from the Hon'ble Judges to Hon'ble Judges. In the opinion of this Court also in Page 97 of 124 Downloaded on : Tue Mar 02 00:34:41 IST 2021 C/AO/2/2021 CAV JUDGMENT civil cases having the same sets of facts and circumstances, three Judges may differ in their opinion i.e. one may allow the suit, the other may reject the suit and the third one may partly allow the suit. Likewise in criminal justice system also, cases having the similar facts and circumstances, one Judge may convict, the another may award acquittal and the third Judge may impose part punishment. Therefore, this court is of the opinion that there cannot be any straight jacket formula for writing a judgment. The fact remains, be that as may be, the important fact is that whether the material aspect to grant equitable relief is discussed or not.

125. Fourthly, learned Advocate Mr. Shah has drawn the attention of this Court on the aspect of no findings recorded upon the contentions made by the learned Advocate for the Original Defendant / Appellant herein by the learned Trial Court in the judgment and the observations made are not totally the correct observation since many contentions of both the parties are discussed and therefore such stand of the learned Trial Court is not tenable.

126. It is also reiterated by the learned Advocate Mr. Shah that in various paragraphs of the judgment i.e. paragraph 42 to 65 and also 68 to 91, the learned Trial Court has not considered the relevancy but, as discussed earlier, for example in the case of judgment of the Delhi High Page 98 of 124 Downloaded on : Tue Mar 02 00:34:41 IST 2021 C/AO/2/2021 CAV JUDGMENT Court, the learned Trial Judge has discussed the relevancy in less aspects and in other cases also though not in detailed but few are discussed. But in view of this Court, such aspect did not drive this Court as held to be perverse.

127. Learned Advocate Mr. Shah has also drawn the attention of this Court that the trade name of both the parties are not deceptively and distinctively similar i.e. "WAGH BAKRI" and "VIMAL" but in view of this Court, finding is given by the learned Trial Court that the Court is of the prima facie opinion that the Plaintiffs have clearly established the essential of goodwill and reputation and chance of future loss by virtue of the use of such deceptively similar trade name or device and therefore, the Plaintiffs have prima facie case in their favour, therefore, merely having two different "TRADE NAME" does not make strong defence of original defendant.

128. Learned Advocate Mr. Shah has also placed reliance on different authorities that would be discussed hereinafter so far as infringement of copyright and passing off action is concerned.

129. Learned Advocate Mr. Shah has submitted written note discussing on infringement of trademark and submitted that it is merely a package Page 99 of 124 Downloaded on : Tue Mar 02 00:34:41 IST 2021 C/AO/2/2021 CAV JUDGMENT prepared in computer. There cannot be an artistic work in the orange colour background and therefore since orange colour cannot be termed as artistic work, any allegation of infringement of copyright would not be maintainable. But, this Court is of the opinion that, at the beginning of discussion, when this Court has prima facie compared the trade names coupled with trade, design and artistic work, it appears that the learned Trial Court has rightly exercised the discretionary power in favour of the Respondents / Original Plaintiffs.

130. Learned Advocate Mr. Shah has also discussed in his written note upon the infringement of trademark and submitted that the trademarks bearing registration no. 3075599, 4250078, 4250077 and 4250071 are pertaining to "WAGH BAKRI STRONG AND REFRESHING PREMIUM TEA", however, there is no trademark for the colour scheme and therefore no registration of colour orange or for colour scheme in favour of the Respondents / Original Plaintiffs. Even other wise 'orange colour' as a single colour is not capable of being considered as "Trademark" and therefore, the Respondents / Original Plaintiffs are not entitled to institute the suit for infringement of such trademark.

131. Further also, learned Advocate Mr. Shah has placed reliance upon six options i.e. colour, device,f shape of goods, sound, three dimensional Page 100 of 124 Downloaded on : Tue Mar 02 00:34:41 IST 2021 C/AO/2/2021 CAV JUDGMENT work and work mark. It is submitted that not a single registration certificate is produced by the Respondents / Original Plaintiffs showing that they have any registration of trademark in the category of 'orange colour'. But, this Court is of the opinion that when the product is registered, upon such premises, at this juncture, the Court is required to examine in Appeal, only the aspects, which are discussed by the learned Trial Court, which are perverse or not, arbitrary or not, capricious or not and illegal or not. Therefore, when the Respondents / Original Plaintiffs have a registered trade mark, at this juncture, this court, would not prefer to sit in appeal as a competent authority of IPR.

132. So far as passing off action is concerned, learned Advocate Mr. Shah has reiterated that there is no goodwill for 'orange colour', therefore no passing off action would be maintainable for the 'orange colour' but the learned Trial Court has discussed that if the Appellant / Original Defendant has used the product which is identical to the Respondents / Original Plaintiffs, in that case, the learned Trial Court has prima facie opined that the Appellant / Original Defendant has established prior user and reputation, though not for 'orange colour' but for trade mark as a whole when the same is registered. Upon that premises, one cannot make classification of each and every device.

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133. The reliance placed by learned Advocate Mr. Shah upon the judgment in the case of Britannia Industries Ltd. v. ITC Limited (supra) is for passing of action of Britannia Industries Ltd. and not for the infringement of trademark or copyright as is there in the present case. Further, in the said judgment, the Britannia Industries Ltd. was there in the business of biscuits for many years whereas in the case on hand, the Appellant / Original Defendant is yet to enter into Tea business, and therefore, this judgment is not helpful to the Appellant / Original Plaintiffs.

134. The reliance placed by learned Advocate Mr. Shah in the case of Cipla Limited v. M.K. Pharmaceuticals (supra) is not applicable to the facts of the present case as this judgment is related to prescribed medicines / tablets with a particular colour and shape with blister form of packagings, wherein the get up, colour scheme, arrangement of label are not relevant, whereas, in the present case, the same are essential features of label. It was under these circumstances that the Hon'ble Delhi High Court has observed that there can be no monopoly over colour and shape. Therefore the said judgment is not helpful to the Appellant / Original Defendant.

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135. Learned Advocate Mr. Shah has placed reliance in the case of Colgate Palmolive Company v. Patel & Ors. (supra) and more particularly paragraph 25, 29, 31, 33, 41 and 42. In that case, it was held that the disputed colour 'red' as well as 'red and white' combination is quite generic in nature and common to toothpaste trade and therefore concession was not granted. Here also, learned Advocate Mr. Shah has fervently argued that in the present case, colour 'orange' and colour 'dark saffron' is generic in nature and therefore the learned Trial Court has committed error in exercising the discretion. But, in view of this court, in the aforesaid case, the issue was related to monopoly of colour 'red' and 'white' and not on the entire get up and colour scheme of arrangement and placement of label whereas in the present case of the Appellant / Original Defendant, that is in the case of "WAGH BAKRI" the case involved does not relate to claiming monopoly over 'orange' colour, but having registered trademarks involving a label / device mark and registered copyright on the entire lay out, get up, arrangement, colour scheme and placement on leaves and other things. Lastly, in that case, the Hon'ble Delhi High Court had suggested to the Defendasnt to alter the colour scheme and other changes in the copied version of packaging to which, Defendant was agreeable and accordingly the matter was put to an end. Therefore, this authority is also not helpful to the Appellant / Original Defendant.

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136. Learned Advocate Mr. Shah has also placed reliance on the judgment in case of Amrit Banaspati Co. Ltd. v. Suraj Industries Ltd. (supra) wherein the Hon'ble Court has refused to grant any temporary injunction on the ground that, simply because the colour of the two pouches was dark blue and the writing on those pouches are in white colour, will not make the pouches to be of similar nature, even prima facie and in so far as the use of this colour is there, it is not prohibited. The denfendants have brought on record samples of various pouches of this dark blue colour and of light blue colour on record being used by other concerns. But, in view of this Court, the aforesaid authority for passing off action and not for infringement of trade mark or copyright and also not involving a device mark / label with a particular get up colour scheme, arrangement of label etc. as it is there in the present case. Therefore the said judgment is also not helpful to the Appellant / Original Defendant.

137. Learned Advocate Mr. Shah has further placed reliance on the Kerly's Law of Trade Marks and Trade Names, 15th Edition on page no. 652, wherein it is observed that, it is usually true in some degree that a trader's goods are recognized as his by their general appearance, or 'get up'. Accordingly resemblance of get-up is not uncommonly an ingredient Page 104 of 124 Downloaded on : Tue Mar 02 00:34:41 IST 2021 C/AO/2/2021 CAV JUDGMENT in passing off, and it is possible for imitation of get up alone to amount to passing off. But, with respect, the present case is not of solely passing off whereas the present case is of registered mark coupled with registered copyright and therefore, this discussion is not required to be discussed in length.

138. The reliance placed by learned Advocate Mr. Shah in case of Parle Products Limited v. Bakemans Industries Limited (supra) is also not applicable to the facts of the present case. The said judgment is not a good law in view of the judgment of the Hon'ble Apex Court in case of Parle Products (P) Ltd. vs. J.A. & Co. Mysore (supra).

139. Learned Advocate Mr. Shah has also placed reliance upon the discussion of the Hon'ble Apex Court in case of Cadila Healthcare v. Cadila Pharmaceutical (supra) wherein the Hon'ble Apex Court has rejected the adoption of the English principles regarding the weightage to be given to the dissimilarities, however, Hon'ble Apex Court has not stated that the principles concerning the colour combination as laid down in various English judgment would not be relevant for the Indian Jurisdiction. In paragraph 33 of the said judgment, the Hon'ble Apex Court has observed that the English cases would be relevant in understanding essential feature and therefore considering the long line of English as well as American judgments as narrated in the commentary of Page 105 of 124 Downloaded on : Tue Mar 02 00:34:41 IST 2021 C/AO/2/2021 CAV JUDGMENT Kerly's Law of Trade Marks and Trade Names and narrated by various Hon'ble High Court (i.e. Britania Industries v. ITC Ltd.), it is clear that it would be very difficult for anyone to claim passing off solely on the basis of colour combination as essential feature. Learned Advocate Mr. Shah has submitted that In such circumstances, learned Trial Court out to have appreciated that the Respondents / Original Plaintiffs have no prima facie case of passing off and therefore injunction ought not to have been granted.

140. In the opinion of this Court, this submission by the learned Advocate Mr. Shah for the Appellant / Original Defendant is on the basis of the judgment in case of S.M. Dye Chem Limited (supra) which was replied by the learned Senior Advocate Shri Kamal Trivedi for the Respondents / Original Plaintiffs, who has ultimately argued that the law laid down in this judgment has been expressly held to be bad in the later judgment of the Hon'ble Supreme Court in Cadila Healthcare v. Cadila Pharmaceutical (supra) wherein paragraph 17 to 12 are mainly on the ground that two English judgments relied upon in the case of S.M. Dye Chem Limited (supra) and Payton & Co. vs. Snelling Lampard & Co . (supra) are not applicable to Indian conditions and the judgment of S.M.Dye Chem Limited (supra) cannot be referred to and relied upon. Page 106 of 124 Downloaded on : Tue Mar 02 00:34:41 IST 2021 C/AO/2/2021 CAV JUDGMENT

141. This Court is in full agreement with the submission made by learned Senior Advocate Shri Kamal Trivedi for the Respondents / Original Plaintiffs that the judgment is required to be referred to as a whole and not in the isolation form, once the Hon'ble Apex Court has held that both the English judgments are not applicable to the Indian conditions. Upon such premises, this court is not in a position to discuss anything more except non-application of S.M.Dye Chem Limited (surpa) in the present case.

142. Learned Advocate Mr. Shah has lastly placed reliance upon the fact that the goods under consideration is not ordinary tea which is sold in loose form to the general public but it is a premium variety of the tea targeted towards the middle as well as upper middle class people who will be aware of the "WAGH BAKRI" and "VIMAL" as two different brands as both of them have distinct identity and therefore considering the nature of goods as well as targeted audience also there is no possibility of passing off as alleged by the Respondents / Original Plaintiffs. But, this court is of the opinion that it is an undisputed fact that the product of the Respondents / Original Plaintiffs is a registered trade mark coupled with registered copyright as discussed earlier. Further, this Court at this juncture, while traveling first appellate court under Order 43 Rule 1 and Rule 2 of CPC as equity appellate court Page 107 of 124 Downloaded on : Tue Mar 02 00:34:41 IST 2021 C/AO/2/2021 CAV JUDGMENT wherein trial is yet to begin before the Trial Court. Therefore, be that as may be, at this juncture, when the learned Trial Court has observed that the Respondents / Original Plaintiffs has prima facie case coupled with irreparable loss and balance of convenience, which, in view of this court, is not perverse, arbitrary, illegal, capricious and not against the settled principles of law. Therefore, merely middle class and upper middle class people will be aware of "WAGH BAKRI" and "VIMAL", has two different brands and therefore it cannot be said that the learned Trial Court has committed any mistake.

143. Learned Advocate Mr. Shah for the Appellant / Original Defendant has also placed reliance on the judgment in case of White Hudson & Co. Ltd. v. Asian Organisation Ltd. reported in (1965) R.P.C. 45 (PC Singapore). The facts and circumstances are different. Further, latest law is discussed. Therefore, this judgment is not helpful to the Applicant / Original Defendant.

144. Learned Advocate Mr. Shah has also placed reliance on the judgment in case of Kellogg Company vs. Pravin Kumar Bhadabhai (supra), but in the opinion of this Court, the said judgment is also not found to be a good law in later judgment of the Hon'ble Delhi High Court Page 108 of 124 Downloaded on : Tue Mar 02 00:34:41 IST 2021 C/AO/2/2021 CAV JUDGMENT in the case of N. Rangarao & Sons Vs. Anil Garg (supra) since the reliance was placed on the very English Judgment referred to above as well as the English judgment in the case of S.M.Dye Chem Limited (supra).

145. Learned Advocate Mr. Shah has also placed reliance upon the judgment in case of Kuber Khaini Pvt. Ltd. Vs. Prabhoolal Ramratan Das Pvt. Ltd. (supra). Here also, the law laid down by the said judgment is not a good law since this judgment has placed reliance in English Judgment in the case of Payton & Co. vs. Snelling Lampard & Co. (supra) which has been declared by the Hon'ble Supreme Court in paragraph 20 of the judgment in case of Cadila Healthcare v. Cadila Pharmaceutical (supra).

146. Learned Advocate Mr. Shah has also placed reliance on the judgment in case of K. Narayanan vs. S. Murli (supra), wherein this judgment does not apply to the present case since the injunction was denied in the said case mainly on two grounds;

(a) The Plaintiff's mark was not registered and his application for registration was pending, on the basis whereof, it had filed a Suit for passing of for injuncting the other side; and Page 109 of 124 Downloaded on : Tue Mar 02 00:34:41 IST 2021 C/AO/2/2021 CAV JUDGMENT

(b) Plaintiff has suppressed certain important facts; But, in the present case, the Respondents / Original Plaintiffs has a registered trade mark and copy rights, whereby, it has acquired a statutory recognition to use the same to the exclusion of rest of the world. Therefore, this Court is of the opinion that the said judgment in case of K. Narayanan v. S. Murli (supra) is not helpful to the Appellant / Original Defendant.

147. Learned Advocate Mr. Shah for the Appellant / Original Defendant has placed reliance on the judgment in case of Dhodha House and Ors. v. S.K. Maingi & Ors. reported in MANU / SC / 2524 / 2005. In this case, case was of jurisdiction with trademark, here in the present case different facts and circumstances, since registered trademark and copyright of the original plaintiff have not applicable and helpful to the Appellant / Original Defendant.

148. Learned Advocate Mr. Shah for the Appellant / Original Defendant has placed reliance on the judgment in case of Skyline Education Institute (Pvt. ) Ltd. v. S.L.Vaswani & Ors. Reported in MANU / SC / 0009 / 2010. Facts and circumstances are different and the ratio in this judgment is not helpful to the Appellant / Original Defendant but is Page 110 of 124 Downloaded on : Tue Mar 02 00:34:41 IST 2021 C/AO/2/2021 CAV JUDGMENT helpful to the stand of the Respondents / Original Plaintiffs for alleged generic name.

149. Learned Advocate Mr. Shah for the Appellant / Original Defendant has placed reliance on the judgment in case of Rolex Sa v. Alex Jewellery Pvt. Ltd. & Ors. reported in MANU / DE / 0796 /2009. Facts and circumstances are different and the ratio in this judgment is not helpful to the Appellant / Original Defendant but is helpful to the stand of the Respondents / Original Plaintiffs for alleged generic name.

150. Learned Advocate Mr. Shah for the Appellant / Original Defendant has placed reliance on the judgment in case of Express Bottlers Services Private Ltd. v. Pepsico Inc. & Ors. reported in MANU / WB / 0158 / 1988. Facts and circumstances are different and the ratio in this judgment is also not helpful to the Appellant / Original Defendant but is helpful to the stand of the Respondents / Original Plaintiffs for alleged generic name.

151. Learned Advocate Mr. Shah for the Appellant / Original Defendant has further placed reliance on the judgment in the case of Vijay Kumar Ahuja v. Lalita Ahuja reported in MANU / DE / 1278 / 2001. The facts and circumstances are different herein. This is an ex parte injunction by Page 111 of 124 Downloaded on : Tue Mar 02 00:34:41 IST 2021 C/AO/2/2021 CAV JUDGMENT the plaintiffs whereas in the case on hand it is bipartite. Therefore, this judgment is also helpful the the Appellant / Original Defendant.

152. Learned Advocate Mr. Shah for the Appellant / Original Defendant has further placed reliance on the judgment in the case of Vidarbha Distillers v. Vidarbha Bottlers Pvt. Ltd. Reported in MANU / MH / 1197 / 2004. In this judgment the Court has laid down the following ratio decidendi:

"When neither it is shown that Appellant is originator of design nor there has been any phonetical similarity between products of parties, Appellant cannot be entitled to interim relief."

Therefore, in the opinion of this Court, the facts in the case on hand are different and therefore this judgment is also not helpful to the Appellant / Original Defendant.

153. Learned Advocate Mr. Shah for the Appellant / Original Defendant has further placed reliance on the judgment in the case of Bharat Hotels Limited v. Unison Hotels Limited reported in MANU / DE / 0276 / 2004. Here also ex parte injunction is not applicable to the facts of the case on hand. Therefore this judgment is not helpful to the Appellant / Original Defendant.

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154. Learned Advocate Mr. Shah for the Appellant / Original Defendant has further placed reliance on the judgment in the case of Seema Arshad Zaheer and Ors. v. Municipal Corporation of Greater Mumbai & Ors. reported in MANU / SC / 2420 /2006. In this judgment the Hon'ble Court has observed as under:

"But where the Plaintiffs do not make out a prima facie case for grant of an injunction and the documents produced clearly show that the structures are unauthorised, the court may not grant a temporary injunction merely on the ground of sympathy or hardship."

Therefore, the facts in the case on hand are different in the view of this Court.

155. Learned Advocate Mr. Shah for the Appellant / Original Defendant has also placed reliance on the judgment in the case of Camlin Private Limited v. National Pencil Industries reported in MANU / DE / 0241 / 1988. Here in this case also the facts and circumstances are different and therefore, this judgment is not helpful to the Appellant / Original Defendant.

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156. Learned Advocate Mr. Shah for the Appellant / Original Defendant has placed reliance on the judgment in the case of Christian Louboutin SAS v. Abubaker & Ors. Reported MANU / DE / 1983 / 2018. In this case the Hon'ble Court has observed as under:

"Use of a single colour of Plaintiff did not qualify single colour to be a Trade mark in view of provisions of Sections 2(m) and 2(zb) of Act. Also, Section 30(2) (a) of Act, in facts of present case, was a complete disentitlement to reliefs claimed by Plaintiff on basis of plaint."

157. It is also true, as per this authority, that use of single colour of the plaintiff, did not qualify single colour to be trademark but in the present case, in addition to colour, there are so many similarities such as;

(a) The tag line of both the trademarks start with "PREMIUM". The tagline for "VIMAL" is "PREMIUM CTC LEAF TEA" while that of "WAGH BAKRI" is "PREMIUM LEAF TEA" which is likely to confuse the public at large.

(b) The cup and plate used as a shape for the trademark are deceptively similar with white colour and similar shape of green leaves placed on the plate.

(c) The logo of VIMAL is placed in oval shaped circle with a reddish background and that of a WAGH BAKRI's logo is also similar to it with a reddish background.

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(d) The background of the logo for VIMAL uses same colour that of WAGH BAKRI which is likely to create confusion among the public at large.

Therefore, in the opinion of this Court, prima facie, it drives as "copied" and hence the facts and circumstances are different and not helpful to the Appellant / Original Plaintiff.

(K) DISCUSSION OF AUTHORITIES AS SUBMITTED BY LEARNED SENIOR ADVOCATE SHRI KAMAL TRIVEDI FOR THE RESPONDENTS / ORIGINAL PLAINTIFFS:

           Sr.            Name              Citation            Pg.      Original mark           Copied mark
           No.                                                  No.
           (1st                                                 (1st
      Compilation                                          Compilation
      of Judgments                                         of Judgments
            of                                                   of
      Respondents)                                         Respondents)
            1.     Parle Products (P)     (1972) 1 SCC         1-6      A wrapper / label     A wrapper / label of
                   Ltd. vs. J.A. & Co.        818                       of partly yellow      partly yellow and
                   Mysore                                               and partly white      partly white in
                                                                        in colour, having     colour, having a
                                                                        a picture with a      picture of a girl and
                                                                        girl in centre,       birds in the center,
                                                                        carrying a pot of     with hay-bundle on
                                                                        water on her head     her head supported
                                                                        with two calves       with one hand and
                                                                        around her and        carrying a stick and
                                                                        hens     in    the    bundle of food in
                                                                        foreground and a      the other hand with
                                                                        farm house with a     cows and hens
                                                                        fence      in    a    around.
                                                                        background with
                                                                        words, "Parle's
                                                                        Gluco Biscuits"
                                                                        printed thereon.

           2.        Dabur       India   2012 SCC Online       7 - 21
                     Limited Vs. Shree      Del. 3332
                     Baidyanath
                     Ayurved Bhawan
                     Pvt. Ltd.




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3.         Marico Ltd.    Vs.    2014 SCC Online       22 - 40
           Pratik Goyal             Del. 1786




5.         Mother Dairy Fruit    2015 SCC Online       66 - 75
           & Vegetable Pvt.         Del. 10637
           Ltd     Vs.    Sri
           Vinayaka     Milk
           Products

7.         Parle Agro Pvt Ltd.   Judgment dated        91 - 95
           vs.         Gulam     28.03.2018
           Moinuddin Khan        rendered    by
           and Anr.              Hon'ble Bombay
                                 High Court




8.         Parle Products Pvt.   MANU/MH/149          96 - 101
           Ltd. V/s. Future        2/ 2020
           Consumer Ltd.




9.         Gujarat Tea depot.    Order      dated     102 - 123
           Co. Vs. Bagharam      04.08.2015
           Krupaji Ganchi        passed by this
                                 Hon'ble Court




10.        Taw Manufacturing     (1951) RPC 271       124 - 129
           Coy Ld. Vs. Notex
           Engineering Coy.
           Ld




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In the above cited authorities, it appears that the products were similar to each other but the courts have made over all comparison while exercising the discretion in issuing injunction against the usage of objectionable device mark / labels.

158. Learned Senior Advocate Shri Kamal Trivedi has also drawn the attention of this court on the following citations / authorities:

 Sr.            Citation                           Party Name
 No
  1    (1972) 1 SCC 618           Parle Products (P) Ltd. vs. J.A. & Co.
                                  Mysore
  2    2012 SCC Online Del. Dabur India Limited vs. Shree
       3332                 Baidyanath Ayurved Bhawan Pvt. Ltd
  3    2014 SCC Online Del. Marico Ltd. v. Pratik Goyal
       1786
  4    2014 SCC Online Del Allied Blenders and Distillers Pvt. Ltd
       3423                Vs. Sentino Bio Products Pvt. Ltd.
  5    2015 SCC Online Del. Mother Dairy Fruit & Vegetable Pvt.
       10637                Ltd. v. Vinayaka Milk Products
  6    2017 (2) Mh. L.J. 447      Rajeshwar Prasad Pappuji Singh Chand
                                  Singh Vs. Prem Mehandi Centre, Nashik
  7    Judgment                Parle Agro Pvt. Ltd.                  v.     Gulam

dated28.3.2018 rendered Moinuddin Khan and anr.

       by Hon'ble Bombay
       High Court in notice of
       Motion No. 596 of 2018
  8    MANU / MH / 1492 / Parle Products Pvt. Ltd. v. Future
       2020                       Consumer Ltd.
  9    Order dated 04.08.2015 Gujarat Tea Depot. Co. v. Bagharam
       passed by this Hon'ble
                              Krupaji Ganchi
       Court in A.O. No. 116
       of 2015


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 10 (1951) RPC 271                Taw Manufacturing Copy Ltd. v. Notex
                                  Engineering Co. Ltd.
 11 (1959) RPC 83                 Tavener Rutledge Ltd. Vs. Specters Ltd.

12 2003 SCC Online Del Colgate Palmolive Co. vs. Anchor Health 1005 and Beauty Care Pvt. Ltd.

13 2005 SCC Online Del N. Ranga Rao and Sons Vs. Anil Garg 1293 14 (2001) 5 SCC 73 Cadila Health Care Ltd. Vs. Cadila Pharmaceuticals Ltd.

15 (2004) 3 SCC 90 Midas Hygiene Industries (P) Ltd. Vs. Sudhir Bhatia 16 (2011) 4 SCC 85 T.V. Venugopal vs. Ushodaya Enterprises Ltd.

17 1990 Supp SCC 727 Wander Ltd Vs. Antox India Ltd.

18 (2006) 8 SCC 726 Ramdev Food Products (P) Ltd. Vs. Arvindbhai Rambhai Patel 19 (1996) 5 SCC 714 N.R. Dongre Vs. Whirlpool Corporation 20 2005 (2) GLH 156 Adani Exports Ltd Vs. Marketing Service Incorporated 21 2012(3) GLH 110 Sun Pharmaceuticals Industries Ltd vs. M/s. West Coast Pharmaceuticals Works Ltd.

22 AIR 1960 SC 142 Corn Products Refining Co. Vs. Shangrila Food Products Ltd.

23 2013(53) PTC 606 (Guj) Rangoli Chemfoods Pvt Ltd Vs. Indo Brine Industries Ltd.

 24 2015 (62)         PTC     23 Jagdish Gopal Kamnath vs. Lime & Chili
    (Bom)                        Hospitality Services
 25 2011 (48)         PTC    564 Blue Hill Logistics Pvt. Ltd. Vs. Ashok
    (Mad)                        Leyland Ltd.

It appears on the basis of few authorities, over all, the Court is required to examine similarity from the point of view of the common man with average intelligence and imperfect recollection, since it is registered trade Page 118 of 124 Downloaded on : Tue Mar 02 00:34:41 IST 2021 C/AO/2/2021 CAV JUDGMENT mark with registered copyright and one is not supposed to place both the competing marks side by side to draw dissimilarities and to find out whether the words and colours used therein are generic and descriptive or not.

159. Therefore, the learned Trial Court has rightly placed reliance that in the case of infringement of trade mark or copyright, injunction is required to be issued. However, learned Senior Advocate Shri Kamal Trivedi has also placed reliance on the judgment in the case of Midas Hygiene Industries (P) Ltd. Vs. Sudhir Bhatia, reported in (2004) 3 SCC 90, which, in the opinion of this Court is also applicable to the facts of the present case.

160. Learned Senior Advocate Shri Kamal Trivedi has also placed reliance on the judgment in case of Sun Pharmaceuticals Industries Ltd. v. M/s West Coast Pharmaceuticals Works Ltd. reported in 2012 (3) GLH 110 wherein it was held that the Appellate Court has come to the conclusion that the discretionary order passed by the learned Trial Court is perverse, capricious, arbitrary and contrary to the settled principle of law regarding, grant of refusing to grant temporary injunction and held that it is not the function of the appellate court to reassess the evidence adduced by both the sides pending the suit and it is also not the function of the Appellate Court to come to any different conclusion than Page 119 of 124 Downloaded on : Tue Mar 02 00:34:41 IST 2021 C/AO/2/2021 CAV JUDGMENT the one arrived at by the Trial Court and further it is held that it is not in the interest of the parties if the Court elaborately deals with the matter of merits at the interim stage as it is likely that the same would prejudice the case of the either side. Therefore, this Court is in full agreement with this submission made by learned Senior Advocate Shri Kamal Trivedi that the Court is not required to go in detailed merits of the case since it prejudices the case of the either side, since the trial is yet to commence.

161. Learned Senior Advocate Shri Kamal Trivedi has also placed reliance on the judgment in case of N.R.Dangre v. Whirlpool Corporation reported in (1996) 5 SCC 714 wherein the principles of equitable relief is discussed and the injunction is granted on equitable principles. The same is also discussed in this case and therefore there is no need to repeat the same.

162. Learned Senior Advocate Shri Kamal Trivedi has also placed reliance on the judgment in case of Adani Exports Ltd. v. Marketing Service Incorporated reported in (2005) 2 GLH 156 wherein it was held that if there is no infirmity found in the order of the Trial Court, injunction against encashment of bank guarantee and letter of credit should not be granted except where fraud or irretrievable damage is contended and prima facie established. Therefore, in sum and substance, Page 120 of 124 Downloaded on : Tue Mar 02 00:34:41 IST 2021 C/AO/2/2021 CAV JUDGMENT if there is no infirmity found in order of the Trial Court, in that case, the Appellate Court is not required to interfere.

163. In the case of Corn Products Refining Co. v. Shangrila Food Products Ltd. Reported in AIR 1960 SC 142, it was held by the Hon'ble Apex Court that reputation among general public should attach to trade mark and not to maker of goods.

164. Learned Senior Advocate Shri Kamal Trivedi has also placed reliance on the judgment in case of Rangoli Chemfoods Pvt. Ltd. v. Indo Brine Industries Ltd. Reported in 2013 (53) PTC 606 (Guj), Jagdish Gopal Kamnath v. Lime & Chilli Hospitality Services reported in 2015 (62) PTC (Bom) and also Blue Hill Logistics Pvt. Ltd v. Ashok Leyland Ltd. Reported in 2011 (48) PTC 564 (Mad). In the opinion of Court, to some extent, principles are applicable to the facts of the present case.

165. In case of Allied Blenders and Distillers Pvt. Ltd. v. Sentino Bio Products Pvt. Ltd. (supra), it is held that if the injunction order is not confirmed, not only the plaintiff but the unwary customers who cannot be compensated in terms of money would also suffer in case injunction is not granted. Application for grant of injunction therefore allowed. In the Page 121 of 124 Downloaded on : Tue Mar 02 00:34:41 IST 2021 C/AO/2/2021 CAV JUDGMENT present case also, the learned Trial Court, would have not granted injunction, there are all the chances of loss to unwary customers who cannot be compensated in terms of money.

166. Learned Advocate Mr. Shah has also lastly submitted that if the injunction is not granted, in that case the Respondents / Original Plaintiffs have no irreparable loss since they are continuing in business but when the injunction is granted, in that case all business of the Appellant / Original Defendant would be ruined for which there is no chance of assessment of loss. But, such stand is not tenable in view of earlier discussions made herein above.

167. Therefore, also this court is required to interfere and set aside the order passed by the learned Trial Court. But, as discussed earlier, the learned Trial Court has not committed any mistake neither in form of order as perverse, or arbitrary, or capricious, or illegal and therefore, this court is not inclined to interfere in the order of the learned Trial Court. Hence, I reply Point No. (i) in negative and answer Point no. (ii) as under:

(L) CONCLUDING REMARKS:

168. Upon all such discussions and the reliance placed by both the sides on different authorities / citations, it appears that now it is prima facie Page 122 of 124 Downloaded on : Tue Mar 02 00:34:41 IST 2021 C/AO/2/2021 CAV JUDGMENT Res integra, that instead of dissimilarity of trade products, the Court has to see prima facie, similarities in the product, since the man of average prudence or average intelligence cannot be deceived in dealing with purchasing the goods in the market, since in the present case, the product Tea ("WAGH BAKRI PREMIUM") is such, every type of persons may purchase including, middle class, rich person and others, they may not be deceived by purchasing the goods of so called Appellant / Original Defendant. Prima facie, by allowing product of the Appellant / Original Defendant, will cause confusion in the minds of public at large. Further, it is pertinent to note that the Appellant / Original Defendant has yet not started manufacturing fully in the market as compared to the Respondents / Original Plaintiffs and therefore quia timet action was the need of the hour in the view of the learned Trial Court, and therefore, when the discretion is exercised by the learned Trial Court, the Appellant / Original Defendant has knocked the door of this Court, ex facie the Appellant / Original Defendant failed to rebut prima facie case of the Respondents / Original Plaintffs as Absque injuria. As discussed herein above, in fleri there is no infirmity in the order passed by the learned Trial Court and the same is in accordance with the settled principles of law and, therefore, the present Appeal from Order and Civil Application, filed by the Appellant / Original Defendant is devoid of any merit and deserves to be dismissed and accordingly stands dismissed with no order as to costs. Notice is Page 123 of 124 Downloaded on : Tue Mar 02 00:34:41 IST 2021 C/AO/2/2021 CAV JUDGMENT discharged.

169. Resultantly, the order dated 11.12.2020 passed by the learned City Civil Court No. 29, Ahmedabad below Exh. 7 for interim injunction in Civil Suit No. 884/2020 is hereby confirmed. However, it is made clear that, in the facts and circumstances of the case, the learned Trial Court shall decide the Civil Suit preferably within 10 months from the date of receipt of the copy of this judgment and conclude the trial, preferably, on or before 31.1.2022, without being influenced by this order passed by this Court since the order has traveled throughout prima facie observations to the extent of equitable relief.

Both the parties shall cooperate in concluding the IPR Suit.

(A. C. JOSHI,J) J.N.W / PRK Page 124 of 124 Downloaded on : Tue Mar 02 00:34:41 IST 2021

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