Madras High Court
Brooke Bond (India) Ltd. vs Sona Spices Pvt. Ltd. on 11 December, 1990
JUDGMENT P.K. Sethuraman, J.
1. This is an application filed under Order XIV Rule 8 of O.S. Rules and Order 39 Rules 1 and 2 C.P.C. praying for an interim injunction restraining the respondent, their servants, agents heirs, successors and assigns, printers and distributors, wholesalers and stockists of any of them from using the impugned packets/pouches being Documents Nos. 44 to 51 or any other packets or pouches or artistic works which are similar or which are a colourable imitation of the artistic work in the plaintiff's registered copyright as found in Document Nos. 28 to 36 pending disposal of the suit.
2. In the affidavit filed in support of the application by the legal Manager of the applicant/plaintiff company, it has been stated that the suit has been filed by the plaintiff complaining of the acts of infringements committed by the respondent in which the impugned labels are identical to and/or deceptively similar to and a colourable imitation of the artistic work subsisting in the plaintiff's registered copyright. The plaintiff is also complaining against the acts of passing-off committed by the defendant by using labels which are deceptively and or confusingly similar to the labels used by the plaintiff in respect of their "BROOKE BOND SONA SPICES." The defendant has dishonestly copied the plaintiff's labels and has adopted the colour scheme, lay-out, and get-up in order to trade upon the reputation and goodwill acquired by the plaintiff in respect of the labels used by the plaintiff for sale of the plaintiff's Brooke Bond Sona Spices.
3. A scrutiny of the defendant's impugned labels will show that the defendants has deliberately and intentionally copied the essential features of the artistic of work in the registered copyrights of the plaintiff's and also has adopted in identical colour scheme and background, lay-out, get up and pictorial representation with absolute mala fide and wrongful motives corresponding to the labels of the respective products of the plaintiff. The defendant's impugned labels are further calculated to pass off or enable other to pass-off their inferior goods of spices as and for the reputed products of the plaintiff.
4. The illegal acts of the defendant are grossly prejudicial to the interest of the consumers and the general public and apart from giving rise to civil liability due to the said wrongful activities committed by the defendant, the defendant has also committed a criminal offence under section 63 of the Copyright Act.
5. The respondent has introduced its packets in the market with the altered pouches very recently. The conduct of the respondents amounts to fraud as the defendant is consciously copying the plaintiff's packets. As the respondent is a recent entrant in the field the balance of convenience is in favour of the plaintiff. The applicant has no objection to the respondents using the name Sona but to the get up and the colour scheme of the labels. Hence the application for injunction.
6. The respondent in the counter filed through the Managing Director of the company has contended that the allegations made in the affidavit filed in support of the application are misleading in material particulars and no case been made out for granting the relief prayed for. The suit is filed by the applicant-company complaining of infringement of their registered copyright in their labels, which have since been discontinued and not in actual use even as per the averments in the plaint and for passing off against the registered proprietor of the trade mark suppressing the fact that the defendant-company are the registered proprietors of the trade mark SONA SPICES. The suit for infringement and passing-off is not maintainable and the suit has been filed by the plaintiff only as a counter-blast to their suit for injunction in respect of trade mark filed against it in the District Counter, Chandigarh with a view to harass.
7. Sona Spices suppliers was stated by the brother of the deponent as Sole Proprietor in October, 1975 adopting the trade name SONA SPICES and using the logo designed by one P. K. Jain on its packets. Provisional permission for Agmark was obtained by him clearly in 1976 and certificate of Authorisation was issued on 24.6.1976. In March, 1979 the defendant company was promoted and the proprietor became the Managing Director. Agmark registration has been renewed in the name of the company. On 7.10.1980 application was made for registration of 'Sona Spices' logo used by the company in Trade Mark application No. 367241 in Class 30 claiming user since 16.10.1975 for sales in States in North India. The mark was advertised before acceptance in the Trade Marks Journal on 16.2.1983. Opposition No. Delhi 4001 filed by the applicant company was disallowed after enquiry by the Assistant Registrar, New Delhi on merits by order dated 26.2.1990 and the application for registration was allowed to proceed. The appeal filed against the said order is pending on the High Court of Delhi, but the stay prayed for by the applicant was refused. Certificate of Registration of the Trade Mark has been issued to the respondent by the Registrar on 15.6.1990. Thus, they are the registered proprietors of 'Sona Spices' Trade Mark.
8. The applicant which is multi-national trading in Tea, started business in spices only in 1980 and they would appear to have applied for trade mark registration for 5 of their labels containing the words "BROOKE BOND SONA" in December, 1981 and another label in July, 1982 and these trademark applications are admittedly pending. In view of the oppositions raised, the applicant company would appear to have surreptitiously obtained copyright registration for 9 labels on 14.2.1983. Copyright registration does not create any rights in law since it is a mere recordal of a claim made before the Registrar of Copyrights and so a copyright registration may exist even for a counterfeit product or a copied label. The artistic work in the label which is claimed to be registered is no longer in use and admittedly these labels have been altered. The alteration is substantial as a bare perusal would show and the claim that there is only slight modification is not correct. By reason of the substantial alteration the applicant company can claim no right and cannot complain of infringement of any copyright.
9. It is strange that a new corner to the field should make bold to complain of infringement and colourable imitation and passing off against the registered proprietor who has been in the field years before. It is the applicant who is guilty of deliberately and intentionally copying the essential features of the trade mark, name and label with wrongful and malafide motives and it is the applicants which pass off their goods by reasons of the reputation which they have obtained in the market and with the public. The applicant company which has pirated the registered trade mark and trade name and which has given up the labels in respect of which copyright registration has been obtained cannot lawfully maintain the application It is not correct to say that the respondent is introducing the packet in the market with the altered pouches very recently and the conduct of the respondent amounts to a fraud.
10. The respondent are trading in spices in the States of Jammu and Kashmir, Punjab, Haryana, Himachal Pradesh, Rajasthan and Uttar Pradesh and the Union territories of Delhi and Chandigarh and they have no states in Tamil Nadu. The trade mark registration is only confined to the States in which they are having sales. It is only with a view to put hardship and loss that the plaintiff has chosen to file the suit along with the application. The suit for infringement filed by the defendant against the plaintiff is pending in the District Court, Chandigarh. Hence, it has been prayed that the application has to be dismissed with costs.
11. The point that arises for consideration in this application is as to whether there should be an order of temporary injunction restraining the defendant, their servants, agents, heirs, successors and assigns, printers, distributors wholesalers and stockists form using the impugned packets/pouches which are a colourable imitation of the artistic work in the plaintiff's registered copyright as found in Document Nos. 28 to 38 pending disposal of the suit.
12. Point : The applicant-plaintiff Brook Bond India Limited has filed the suit for perpetual injunction restraining the defendant form using the impugned packets/pouches being Document Nos. 44 to 51 or any other deceptively and/or confusingly similar labels or artistic work which are colourable imitation of the artistic work in the plaintiff's registered copyright as found in Documents Nos. 28 to 38, for perpectual injunction restraining the defendant from in any manner using the impugned labels, specimen of which are filed as document Nos. 44 to 51 or any other deceptively similar labels so as to pass-off or enable others to pass-off the defendant's good as and for the goods of the plaintiff by using the plaintiff's wrappers namely Document Nos. 28 to 38 or any other wrappers similar to the plaintiff's good as and for rendition of accounts of all the profits earned by the defendant by using the impugned labels, and for delivery up of the dies, articles cartons/wrappers bearing the impugned marks.
13. According to the plaintiff, the plaintiff is carrying on business of the manufacture, sale, marketing, distribution and export of spices and is a renowned company in India for more than 75 years and the plaintiff's produced of spices is sold and distributed throughout India on an extensive basis. The plaintiff is selling its product of spices in pouches which has a label design with an unique and distinctive colour scheme and background with an artistic representation of a cluster of leaves and a small circle within which a picture of spices is enclosed and a larger green circle-like representation enclosing a white area containing the words "BROOKE Bond Sona Pure Spices" in green and red and the generic name of that product of spice in English and Hindi in red colour. There is representation of the Brooke Bond logo mark in red and green at the top of the Circle-like area, that logomark being a registered trade mark bearing No. 27008. On the reverse panel there is a similar circle-like representation consisting of three levels in green which is meant for statutory declaration on a white tea. That is in addition to a rectangular area demarcated in red containing descriptions.
14. Thiru Bhattacharijee, the author of the artistic work subsisting in the Brooke Bond Sona Spices labels and visualised and made the said artistic work in the course of his employment with the plaintiff company in the capacity of Marketing Manager under a contract of service and thus the plaintiff is the owner of the nine copyrights mentioned in the plaint. The plaintiff applied for and obtained nine copyright registrations for the label-marks used in respect of their produce "Brooke Bond Sona Spices".
15. The plaintiff has been using the labels for their products of Brooke Bond Sona Spices consisting of pictorial representations of the artistic work in the copyright registrations with similar colour background, colour combinations, layout, get-up etc, since 1980. In or about April, 1989 the plaintiff made a slight modification to the labels of 'Brooke Bond Sona Spices' by deleting the small circular representation containing a picture of the spice product with the cluster of leaves and incorporating a cluster of three leaves, the word 'Sona' being written in a repeated fashion, diagonally across the front and reverse panels for the unblended spices and with an additional food photograph corresponding to the product for the blends. The said slight modification is not a substantial alteration of the artistic work in the nine registered copyright labels.
16. In or about the year 1981 the plaintiff plied for the registration of six composite label trade marks containing the word 'BROOKE Bond Sona'. The word 'Sona' is descriptive and hence no exclusive right to the use of the word Sona can be claimed by anyone. The plaintiff are the registered proprietors of the copyrights and are the proprietors of the Trade Marks for which applications are pending.
17. On account of the intrinsic quality, superiority and purity of the product of the plaintiff, the care and skill exercised by them in marketing the same and the crores of rupees of money and labour expended by them in promoting the sales, the plaintiff has achieved large and extensive sale and has built up a very large and valuable reputation for their product "Brooke Bond Sona Spices". The plaintiff has spent huge amount for advertisement and publicity expenditure for popularising their copyright and trade marks under which Brooke Bond Sona Spices have been sold. The labels have come to be associated by the traders and members of the public exclusively with the plaintiff, the essential features being an unique and distinctive colour background and combination, with an artistic pictorial representation consisting of three green leaves forming part of a circle-like representation in green, enclosing the words 'BROOKE Bond Sona pure Spices' in green and red and the name of the product of spice in English and Hindi printed in red and green, on the reverse panel there being a circle-like representation consisting of three leaves in green enclosing the statutory declaration panel in white. The Word 'Sona' being written repeatedly in a diagonal fashion across the front and reverse panels for the unblended spices and with a gold background with a food photograph for the blended spices. The plaintiff has acquired exclusive rights to use the said labels and the traders and the members of the public associate the said colour scheme, lay-out, get-up and the pictorial representation and artistic work, common to all the said labels with the plaintiff.
18. While so the plaintiff came across the defendant's product in respect of which the defendant had adopted a label which has deceptively and/or confusingly similar to the plaintiff's labels and which are a colourable imitation of the artistic work of the plaintiff's copyright registration, apart from being a blatant attempt on the part of the defendant of pass-off their interior products of spices as and for that of the renowned products of the plaintiff with an infringing device similar to the green circle-like representation of the plaintiff's label marks, with the works 'Sona Pure Spices' which along with the said infringing device is printed in green colour. The word 'Sona' is also written repeatedly in a diagonal fashion in white across the front panel of the impugned packet in the manner identical to that of the plaintiff. By using the impugned labels the defendants are infringing the plaintiff registered copyright and are trying to pass-off the defendant's goods as and for the goods of the plaintiff.
19. The enquiry revealed that the defendant originally sold their goods in packers bearing the mark Sona Spices Logo consisting of two concentric circles with the word Sona Spices Private Limited, Chandigarh, India printed between them and the words Sona Spices contained between the two halves of the said concentric circles, which mark is also the subject matter of the Defendant's Trade Mark Application filed as Document No. 40. Subsequently the defendant had switched over to plastic pouches with a colour background corresponding to the respective product of the plaintiff with an infringing device similar to the green circle like representation of the plaintiff's label marks with the words 'Sona Pure Spices' The name of the products is also written in a colour identical to the corresponding label mark/work of the plaintiff.
20. In May, 1990 the defendant introduced similar/near identical plastic pouches and paper packets like that of the plaintiff wherein the word 'Sona' has been written repeatedly in a diagonal fashion in white across the front panel of the impugned packet in the manner identical to that of the plaintiff. Further in the plaint the notice issued by the defendant in January, 1986, has been mentioned and also mention has been made about the reply and also about the Trade Mark applications.
21. The defendant has filed a written statement denying the averments in the plaint and it has been stated that the plaintiff company started business in Spices in 1980 and they had applied for registration for 5 labels containing the words 'Brooke Bond Sona' in December, 1981 and another label in July, 1982 and the applications are still pending. Later in or about April, 1989 they had altered the labels and the alteration is substantial and not slight modification as contended by the plaintiff. The plaintiff is a new comer to the field and the plaintiff-company is guilty of copyright the essential features of the defendant's trade mark, name and label with wrongful and malafide motives and it is the plaintiff who pass off their goods as those of the defendant. The defendant is the registered proprietor of the trade mark 'Sona' in respect of spices for sale in the States of Jammu & Kashmir, Punjab, Haryana, Himachal Pradesh, Rajasthan, Uttar Pradesh and the Union territories of Delhi and Chandigarh.
22&23. The plaintiff being a multi-national company is attempting to use its sheer size to outs the true proprietor of the trade mark Sona. The defendant having adopted the mark Sona in respect of spices ever since 1975 is clearly the prior user and the plaintiff admittedly used the word only in 1980. The suit filed by the defendant is pending in the District Court, Chandigarh and the defendant has also obtained trade mark registration. Hence the plaintiff has filed the suit belatedly. This Court cannot have jurisdiction to try the suit, since the defendant is selling its goods in the states of Jammu & Kashmir, Punjab, Haryana, Himachal Pradesh, Rajasthan, Uttar Pradesh. Brooke Bond logo mark is for tea and not for the spices. It may be that Shri H. Bhattacharjee designed the labels. But it is clear that the plaintiff copied the essential features of the defendant's mark not only taking the trade mark Sona itself but also by copying the bean-shaped device and the flloral ornamentation at its concave base. There could be no copyright where the work is an imitation. Even the modifications made by the plaintiff is with a view to come closer to the Sona Spices trade mark of the defendant, by copying the diagonal presentation of the word 'Sona' repeatedly written on the front and back of the pouches. Copyright registration confers no right as the registration system is merely a recordal of claims. It has been decided by the Registrar of Trade Marks in the decision dated 26.2.1990 that the defendants are the proprietors and prior user of the trade mark Sona. The Sona spices logo was always used from the very beginning as a sort of housemark on each and every product of the defendant. The defendant sued the plaintiff before the District Court at Chandigarh and some of the present cartons/pouches were even filed in those proceedings. Hence it is an utter abuse of the process of the Court for the plaintiff to have obtained an ex parte injunction a few days after the defendant had obtained trade mark registration by filling a false case. The plaintiff is not entitled to the injunction and the suit is liable to be dismissed. Thus it is to be seen that the whole case put forward by the plaintiff/applicant has been contraverted in the counter as well as in the written statement filed by the defendant.
24. It is to be seen that the applicant/plaintiff has come forward with the version in the plaint stating that the originally the defendant sold their goods in packets bearing the mark Sona Spices Logo consisting of two concentric circle with the word Sona Spice Private Limited, Chandigarh, India, printed between them and the words Sona Spices contained between the two halves of the said concentric circle which mark is also the subject matter of the defendant's trade mark application filed as Document No. 40.Document No. 40 reveals that it was advertised before registration and the packets in which spice were sold have been filed as Document Nos. 41.42, 43(a). It is the case of the plaintiff that subsequently the defendant switched over to plastic pouches with a colour background corresponding to the respective product of the plaintiff with an infringing device similar to the green circle-like representation of the plaintiff with an infringing ing device similar to the green circle-like representation of the plaintiff's label marks with the words 'Sona Pure Spices' which a long with the said infringing device is printed in green colour. The name of the products is also written in a colour identical to the corresponding label mark of the plaintiff. The representation of their alleged logo-mark in a similar shade of green is printed insignificantly at the foot of the impugned packet reading "Sona Spices Private Limited - Chandigharh, India". The abovesaid packets have been filed as Document Nos. 44 to 46. It could be pointed out at this stage that packets, Document Nos. 41, 42 and 43(a) and 43(b) are not at all similar to the packets of the applicant/plaintiff. On the other hand, as contended by the applicant/plaintiff the packets filed as Document Nos. 44 to 46 are similar to that of the applicant/plaintiff.
25. In paragraph 2 of the plaint it has been submitted that the defendant introduced similar identical plastic pouches and paper packets like that of the plaintiff wherein in addition to the infringing features the word 'SONA' has been written repeatedly in a diagonal fashion. In white across the front panel of the impugned packet in the manner identical to that of the plaintiff. As submitted by the learned counsel for the applicant/plaintiff for the first time it could be seen that the word 'SONA' has been written repeatedly in a diagonal fashion and as regards the same, it is submitted by the learned counsel for the plaintiff that after seeing the plaintiff's packets in which the word 'SONA' had been written repeatedly in a diagonal fashion, it had been copied by the respondent/defendant in such manner. These packets have been filed as Document Nos. 47 to 50. These packets, Document Nos. 47 to 50 are very similar to the packets of the plaintiff. In Document No. 50 Sona has been repeatedly found not diagonally but horizontally. Thus according to the applicant/plaintiff the defendant by using the impugned labels is infringing the plaintiff's registered copyright.
26. As regard those contentions it may be pointed out that in the written statement (paragraph 21) the averments in paragraph 19 of the plaint have been dealt with and those averments have been denied as false. It has been pointed out therein that the plaintiff had come to know of the defendant's labels and cartons as early as in 1980 itself when it came into the market or at any rate in 1986 when the department instituted the suit against the plaintiff in which some of the cartons/labels have been filed and therefore the present suit is fraud on this Court. With regard to the said contention it may be pointed out that may be the plaintiff was wrong in stating only in 1980 it had come to know of the packets, but it cannot be said that all the packets that are now produced were available even in the year 1980 or 1986. No doubt, evidence has to be let in by the parties as to when the respective packets were introduced in the market by the parties concerned. But so far as the averments are concerned, the averments put forward by the plaintiff have not been properly contraverted in the written statement, and the contention of the learned counsel for the plaintiff that the impugned packets with infringement of the copyright of the plaintiff had come into existence only after the plaintiff had introduced those packets appears to be acceptable. Even with regard to the averments in paragraph 20 of the plaint it has been denied as without substance and Sona Spices Logo was also used as a housemark on each and every products of the defendant.
27. It may also be pointed out that there is no specific denial of the averments about the defendant's switch over to plastic pouches with a colour background corresponding to the respective product of the plaintiff with an infringing device similar to the green circle like representation of the plaintiff's label marks with the words 'Sona Pure Spices' which along with the said infringing device is printed in green colour, as found in paragraph 20 of the plaint. Even with regard to the averments in paragraph 21 of the plaint it can be stated that there is no specific denial of the averments about the defendant introducing similar or near identical plastic pouches like that of the plaintiff wherein in addition to the infringing features the word 'SONA' has been written repeatedly in a diagonal fashion in white across the front panel of the impugned picket in the manner identical to that of the plaintiff. No doubt these averments have to be established by the plaintiff during the course of trial, but the version put forward as such has not been contraverted by factual details in the written statement and as such I feel the applicant plaintiff has come forward with a prima facie case for injunction.
28. I have carefully and closely examined the packets which are made up of plastics and the packets are close resemblance to that of the plaintiff and as such I feel the case of the plaintiff that there is infringement of the plaintiff's copyright appears to be prima facie established.
29. The learned counsel for the respondent/defendant contended that the defendant's predecessor was Sona Spices Suppliers, and sole proprietory business was commenced by one Mr. J. L. Jindal and spices were sold under the Trade Mark Sona even from the year 1975 and the trade mark Sona has been used continuously and extensively by the predecessor ever since 1975 and there was Agmark permission obtained in the year 1976. One Mr. Pawan Kumar Jain of Himachal Paper Products designed the art work for the labels, packets and other spice containers and the said Pawan Kumar conceived and designed the Sona Logo Script and the been shaped geometric device encircling the said logo script, and in the month of March, 1979 the defendant company was promoted and the proprietor became the Managing Director. Agmark registration was also renewed in the name of the defendant-company and on 7.10.1980 application was made for registration of Sona Spices logo, and thus according to the learned counsel for the respondent/defendant the respondent had started the business much earlier to the plaintiff and the plaintiff is a new comer to the field and even according to the plaintiff, the plaintiff had come into the business in the year 1980 only. No doubt even according to the plaint, copyright registration of the plaintiff is only from 1980. But as shown earlier the defendant had changed the packets similar to that of the applicant/plaintiff in plastic with similar colour schemes and also get up so that the packets of the defendant are similar to that of the applicant/plaintiff thereby infringing the copyright of the plaintiff. It may also be pointed out at this place that the respondent company was incorporated only on 8.3.1979. In such circumstances, I feel the applicant/plaintiff is entitled to the order of injunction.
30. The learned counsel for the respondent defendant contended that having regard to the fact that trade mark of the defendant is registered in the States of Jammu & Kashmir, Punjab and Haryana, etc. and the defendants' goods are not sold in Tamil Nadu, Court cannot have jurisdiction. As regards the said contention it has been submitted that under Section 62(1)(2) of the Copyright Act this Court has got jurisdiction having regard to the fact that the applicant/plaintiff is carrying on business within the jurisdiction of this Court and it was submitted that the defendant has committed offence of infringement of copyright as contemplated under Section 63 of the Act and in such circumstances this court has got jurisdiction. Having regard to section 62 of the Copyright Act and as the applicant/plaintiff claims to be carrying on business within the jurisdiction of this Court which is not being denied by the respondent. I feel this Court has got jurisdiction to entertain the suit of the plaintiff.
31. In this connection the learned counsel for the applicant/plaintiff also placed reliance on the decision reported in The Daily Calendar Supplying Bureau v. The United Concern (AIR 1967 Madras 381 : ILR (1964) Madras p. 666). In that decision rendered by Ramachandra Ayyar, C.J. and Ramakrishnan, J. the learned Judges, dealing with section 62 of the Copyright Act, have held that the Original side of this Court has got jurisdiction.
32. The learned counsel also placed reliance on the decision reported in Glaxo Operations UK Ltd. v. Samrat Pharmaceuticals, Kanpur (AIR 1984 Delhi 265). It is seen in that decision that the plaintiff company and registered office at Bombay and local office at Delhi and the suit was filed in the Delhi High Court. The Delhi High Court held that as the plaintiff was carrying on business at Delhi, the suit was maintainable at Delhi having regard to section 62(2) of the Copyright Act.
33. The learned counsel for the application/plaintiff also submitted that the respondent filed a suit before the District Court, Chandigarh against the applicant and also filed an application under Order 39 Rules 1 and 2 C.P.C. praying for injunction restraining the plaintiff from using the word 'Sona' and also for passing off. It was contended by the present plaintiff that the application for injunction was opposed on the ground that registration of the trade mark of the respondent was obtained only in the year 1981. On the other hand, much earlier the defendant's products had been established in the market and they are using the word 'SONA' with their logo of Brooke Bond. The learned Additional District Judge, Chandigarh was not pleased to accept the case put forward by the defendant herein and no injunction was granted as could be seen from the xerox copy of the order dated 17.5.1986. Pointing out the said order the learned counsel for the applicant also contended that it could be seen from the said order that the defendant himself complained of passing off against the plaintiff herein and that had not been accepted by the Court. So now it may not be open to the defendant to say anything as regards the contention put forward with regard to passing off. Having regard to the fact that the packets of the defendant were similar to that of the applicant/plaintiff I feel there is likelihood of confusion in the mind of the purchasers.
34. The learned counsel for the applicant also submitted that the applicant/plaintiff has no objection for the defendant selling the product in packets in which they were selling as shown at page 59/59(a) and 60 in the plaintiff's typed set of papers and the plaintiff has got objection for the packets shown at page 64 which are similar to that of the plaintiff. On a careful consideration of the submissions made on either side I feel the plaintiff will be entitled to an order of temporary injunction as prayed for pending disposal of the suit. Accordingly the order passed in Application No. 3137 of 1990 on 16.7.1990 is made absolute.
35. In the result, Application No. 3137 of 1990 is allowed. Interim injunction granted on 16.7.1990 is made absolute. There will be no order as to costs.
Venkataswami, J.
1. By consent the appeal was taken up for final disposal as the same was preferred against an order in application No. 3137 of 1990 in C.S. No. 593 of 1990 on the file of this Court, on the original side.
2. The defendant in the said suit is the appellant in this appeal. The respondent/plaintiff has filed the said for a perpectual injunction. Hereinafter the parties will be referred to by their ranks in the suit.
3. The relief prayed for in the suit read as follows :
(a) granting a perpetual injunction restraining the defendant by themselves, their servants, agents, heirs, successors and assigns, their printers and distributors, wholesalers and stockists, or any of them as the case may be from using the impugned packets/pouches being document Nos. 44 to 51 and or any other packets and/or pouches and/or artistic work which are similar and/or which are a colourable imitation of the artistic work in the plaintiff registered Copyright in A38790/83, A38791/83, A38792/83, A38793/83, A38794/83, A38795/83, A38796/83, A38797/83 and A38798/83 and as found in Document Nos. 28 to 38.
(b) granting a perfectual injunction restraining the defendant by themselves, their servants, agents, heirs, successors and assigns, wholesalers and stockists, or any of them from in any manner using in relation to spices the impugned label, specimens of which are hereto filed as Document Nos. 41 to 51 or any other deceptively and/or confusingly similar labels so as to pass-off or enable others to pass-off the defendant's goods as and for the goods of the plaintiff by using the plaintiff's wrappers namely Document Nos. 28 to 38 or any other wrappers similar to the plaintiffs' wrappers. Document Nos. 28 to 38. In addition to the above, other consequential reliefs were also asked for with which we are not immediately concerned.
4. Pending final disposal of the suit the plaintiff filed application No. 3137 of 1990 under Order XIV Rule 8 of Original side rules and Order 39 Rule 1 Civil Procedure Code for an interim injunction restraining the respondent, their agents, servants etc., from using the impugned packets/pouches.
5. After hearing the arguments of the counsel on both sides and after perusing the pleadings and the documents filed along with the plaint the learned Judge in his elaborate order has come to the conclusion that the plaintiff has made out a case for the grant of temporary injunction as prayed for pending disposal of the suit. Accordingly the learned Judge allowed the application No. 3137 of 1990 by his order dated 30.10.1990.
6. Aggrieved by the order of the learned single Judge the defendant has preferred this appeal.
7. Mr. B. T. Seshadri, learned counsel appearing for the defendant, in attacking the order of the learned Judge submitted that the alleged artistic work as found in Document Nos. 28 to 38 had not been registered at all and therefore the relief of injunction as sought in the suit as well as in the application placing reliance on different registered copy rights cannot at all be sustained. The learned counsel further submitted that the labels used by the defendant are entirely different from those used by the plaintiff and as such the claim of the plaintiff that the defendant has infringed the registered copyright of the plaintiff by using the impugned labels ought not to have been accepted by the learned Judge. It was further contended that the defendant has been using the impugned labels on the basis of the registration given under the provisions of Trade and Merchandise Marks Act 1958 and as such the suit filed for infringement of a mark registered under Copyright Act or for the alleged deception of artistic work itself was not maintainable, and if so the grant of interim relief by the learned Judge cannot be sustained. In any event, according to the learned counsel the user of the labels in the present from by the plaintiff being of recent origin and even before that the defendant having been making use of the labels impugned, there is no justification for the grant of interim injunction.
8. Contending contra Mr. U. N. R. Rao, learned counsel appearing for the plaintiff submitted that the findings of the learned Judge are well founded and there are no grounds for interfering with the same. The contention of the learned counsel for the defendant that the mark registered was different from the one now under use and therefore there is no case for grant of injunction either in the suit or in the application is contrary to the facts proved before the learned Judge. He also denied the assertion of the learned counsel for the defendant that the labels used by the plaintiff in the present from are of recent origin and the defendant has been using the impugned labels long before the plaintiff started using them in the present form.
9. We have considered the rival submission and have also gone through the order of the learned Judge. It is seen from the documents filed along with the plaint that the plaintiff has been selling its product of spices in pouches with a distinct label design of unique of and distinctive colour scheme and background and also with an artistic representation consisting of a cluster of leaves and a small circle within which a picture of spices is enclosed with a larger green circle enclosing a white area containing the words 'Brooke Bond Sona Pure Spices' in green and red. In addition to that within the white area the name of the product is given. Further there is representation of the "Brooke Bond Logo Mark" in red and green at the top of the circle - White area. Subsequently it appears there was a slight change in the get up by removing the small circle containing the picture of spices. Still further there is an addition in the sense that the words Sona are being written in a repeated fashion diagonally across the front and reverse penals of the packet. A perusal of the defendant's packet will prima facie show that the defendant has been making changes in the get up of their packets as and when there is a change in the get up of the plaintiff's packets. We may at once point out that the learned counsel for the defendant (appellant) submitted before us that the defendant has stopped the packet containing the Words Sona written in a repeated fashion diagonally across the front and reverse. Mr. Seshardri placed heavy reliance on a statement in the plaint which to the effect that in or about April 1983 the plaintiff made a modification to the labels of Brooke Bond Sona Spices. The contention of the learned counsel on the basis of the above statement in the plaint was that the change in the label was only from 1989 and there is evidence before the Court to show that even before that the defendant was using the label about which the complaint is made now. To get over this argument of the learned counsel for the plaintiff Mr. U. N. R. Rao placed before us three issues of Woman's Era in which the advertisements of the plaintiff's product find a place, in addition to the documents already filed to establish that the above statement of the learned counsel for the defendant is not correct. On a perusal of the above documents we are satisfied that the contention of the learned counsel for the defendant is not correct.
10. As the suit is pending and controversies raised in the suit have to be decided in the suit after examining witnesses if produced, we do not deal with the controversies elaborately and give findings thereon. Sufficient it is to say that the conclusions prima facie reached by the learned Judge do not call for any interferance. The learned Judge has found that there is infringement of the plaintiff's copyright and that the plaintiff therefore is entitled to an order of injunction. The learned Judge has also noticed one other factor namely that in the suit filed by the defendant in the District Court at Chandigarh the defendant could not get any injunction against the plaintiff from using the word Sona and also for alleged passing-off.
11. As the learned counsel for the defendant failed to establish that the plaintiff has been using the labels as modified only from April 1989 and on the other hand there is documentary evidence to show that the plaintiff has been using the labels as modified for the first time long before the defendant changed to that pattern and in view of the fact that we agree with the "prima facie" findings given by the learned Judge, we dismiss the appeal. However, there will be no order as to costs.