Allahabad High Court
Sahana Soap Works And Ors. vs Kanpur Trading Company Pvt. Ltd. And ... on 9 August, 2002
Equivalent citations: 2002(25)PTC369(ALL)
Author: Sushil Harkauli
Bench: Sushil Harkauli
JUDGMENT Sushil Harkauli, J.
1. This misc appeal is against the order of the trial court granting interim injunction restraining the defendants-appellants. The restraint is against using a trade mark deceptively similar to the trade mark "GHARI", in respect of Soap, Detergent powder etc. I have heard learned counsel for both sides at length.
2. It is clear from the record that the plaintiffs as well as defendants are using wrappers for the same type of products manufactured by them; and the wrappers are not only deceptively similar but except for an extra careful observer they are identical in respect of design, get-up, colour scheme etc.
3. This much of similarity could not possibly by co-incidental. Obviously, either the plaintiffs or the defendants have copied the wrapper including the trade mark. Considering the volume and period of business of the parties discussed below, prima facie the plaintiff would have no motive for such an act.
4. In the suit instituted by the plaintiffs-respondents, the cause of action was both (i) infringement of registered trade mark; and (ii) passing of.
5. The original defendants were (i) Sahana Soap Industries Ltd., Allahabad; and (ii) one Sri Zuber Ahmad alleged proprietor of Sahana Soap Industries. In the said suit an application for interim injunction was moved by the plaintiffs-respondents, but at one stage of the suit in 1999, the plaintiffs-respondents conceded that instead of deciding the application for interim injunction, the suit itself may be finally disposed of expeditiously. It is alleged by the plaintiffs-respondents that subsequently they came to know that two sons of Zuber Ahmad namely Firoz and Afroz had also started manufacturing similar products, using the same trademark and identical wrapper. The wrapper used by these persons under the trade name of "Sahana Soap Works" shows that this activity is said to be carried on under the license from "Sahana Soap Industries". On these allegations, "Sahana Soap Works" and two sons of Zuber Ahmad were impleaded as defendants in the suit on 4.2.2000. In these circumstances the prayer for interim injunction was made and the interim injunction has been granted by an order dated 2.11.2000 which has been challenged in this appeal not by the original defendants, but by these new entrants to the market as their wrapper itself says that they are working under the license of original defendants.
6. According to the plaintiffs case the trademark of the plaintiff is "GHARI" (meaning clock). The defendants are alleged to be using identical wrappers having the same get-up, colour scheme and design with a very minor difference mentioned in the order of the trial Court which has examined the two wrappers with great care.
7. The basic argument from the side of the defendants-appellants is that the trial court has not recorded clear and specific findings as to whether the plaintiff-respondents were the prior users of the trademark or the contesting defendant-appellants were the prior user. According to learned counsel for the appellants the trademark was not registered and application for registration of this kind of trademark has been made by the plaintiff-respondents as well as defendant-appellants and also by other persons and all the applications are pending. Thus according to the appellants the case for infringement of registered trademark is not sustainable. Further, according to the appellants in an action for passing off, the question of "prior user" is crucial.
8. This matter was argued earlier and despite the tell-tale word "new" used in the trademark of the defendants which would prima-facie indicate that their's is the subsequent entry into the market, the parties were given opportunity to file documentary evidence in this appeal to show the volume of business of each of the parties as well as the period of business in this kind of product with the disputed trademark.
9. Both sides have filed supplementary affidavits. Having examined the records produced, it is prima facie clear that small volume of business of the defendant-appellants is not even comparable to the extremely large volume of business of the plaintiffs-respondents. Similarly, the documentary evidence in the form of papers of the Excise Department would indicate that the reliable evidence available indicates prima facie that the plaintiff-respondents are prior user.
10. These circumstances coupled with the use in the trade mark by the defendant appellants of the word "new", which has incidentally been written in very small letters so as to be missed by all but an abnormally careful customer, would indicate that the defendant-appellants have tried to cash in on the good-will of the plaintiff-respondents.
11. Considering these facts, I am of the opinion that the interim injunction order of the trial court does not call for any interference. The appeal is accordingly dismissed.
12. Just as the findings recorded by the trial Court in interim injunction orders are not binding at the final stage of the suit, similarly the findings recorded above are only prima facie findings at this stage and will not be binding at the final decision of the suit.
13. On the request of learned counsel for the defendant-appellants and in order to ensure that the plaintiffs having obtained the interim injunction in their favour do not prolong the hearing of the suit, it is directed that suit will be disposed of by the trial Court expeditiously without granting undue or unduly long adjournment to the plaintiffs.