Andhra HC (Pre-Telangana)
Hilton Tobacco Private Ltd. vs Souza Cruz S.A. And Ors. on 6 October, 1994
Equivalent citations: 1995(1)ALT29
JUDGMENT P. Ramakrishnam Raju, J.
C.M.A. No. 1031 of 1994:
1. The first defendant in O.S. No. 6 of 1994 is the appellant. The first respondent-plaintiff filed the suit for perpetual injunction restraining the defendants from producing, manufacturing, selling or exporting their goods including cigarettes bearing the mark 'HOLLYWOOD', logo and the colour scheme or any other deceptive trade mark and for other reliefs. It has also filed I.A. No. 920 of 1994 under Order 39, Rules 1 & 2 C.P.C. for a temporary injunction, pending the suit. As the said interlocutory application was allowed restrianing the appellant herein and the respondent Nos. 2 to4 from exporting HOLLYWOOD brand of cigarettes to other countries in which the trade mark of HOLLYWOOD is registered by the plaintiff till the disposal of the suit this appeal.
C.M.A. No. 1032 of 1994:
2. Similarly, the first defendant in O.S. No. 3 of 1994 is the appellant, against whom an interim injunction was granted in LA. No. 784 of 1994 restraining the appellant and the second respondent from exporting any brand of cigarettes with Assos/Assos International/International Assos, to other countries in which this trade mark is registered by the first respondent-plaintiff, pending the suit.
C.M.A. No. 1035 of 1994:
3. This appeal is filed by the second defendant in O.S. No. 3 of 1994 questioning the order made in I.A. No. 784 of 1994. In this appeal also the appellant raised similar contentions as raised by the appellant in C.M.A. No. 1032 of 1994.
C.M.A. No. 1036 of 1994:
4. This appeal is filed by defendant Nos. 2 and 3 in O.S. No. 6 of 1994 questioning the same order made in LA. No. 920 of 1994.
C.M.A. No. 1162 of 1994:
5. This appeal is filed by the plaintiff in O.S. No. 6 of 1994 questioning the order made in LA. No. 920 of 1994 in so far as it went against the appellant i.e., rejection of some reliefs.
C.M.A. No. 1163 of 1994:
6. This appeal is filed by the plaintiff in O.S. No. 3 of 1994. The appellant questions the order made in LA. No. 784 of 1994 in so far as it went against the appellant.
C.R.P. No. 2617 of l994:
7. The first defendant in O.S. No. 3 of 1994 is the petitioner herein. It filed I.A. No. 987 of 1994 under Order 7, Rule 10,10-A C.P.C. to determine whether the lower Court has jurisdiction to entertain the suit. As the said application was dismissed, this Civil Revision Petition is filed.
C.R.P. No. 2618 of 1994:
8. This Civil Revision Petition is filed by the first defendant in O.S. No. 6 of 1994 questioning an order made in I.A. No. 1132 of 1994 filed by it for rejection of the plaint for presentation in proper Court holding that the lower Court has no jurisdiction to entertain the suit.
C.R.P. No. 2619 of 1994;
9. The first defendant in O.S. No. 3 of 1994 is the petitioner. The petitioner filed an application requesting the Court to decide whether Mr. Deepak Dhingra is an authorised person to sign the plaint on behalf of the plaintiff as its lawful General Power of Attorney Holder or not. As the said application was dismissed, this Civil Revision Petition is filed.
C.R.P. No. 2629 of 1994:
10. The first defendant in O.S. No. 6 of 1994 is the petitioner. It filed an application under Order 3, Rules 1 and 2 C.P.C. to decide whether Mr. Deepak Dhingra is an authorised person to sign the plaint on behalf of the plaintiff. As the said application was dismissed, this Civil Revision Petition is filed.
11. Although the lower Court has disposed of all the applications by two separate orders, as common questions arise, all these appeals and petitions are disposed of by a common order.
12. The first respondent in C.M.A. No. 1031 of 1994 is a leading manufacturer of tobacco products including cigarettes which have a world-wide reputation. It is manufacturing cigarettes with the brand name "HOLLYWOOD" apart from other brands of cigarettes which have market throughout the world. The first respondent has also got its trade mark, brand and device 'HOLLYWOOD' registered in about 120 countries in the world. It has been manufacturing the said product for several decades. On March 24, 1994 it came to know that the appellant is manufacturing cigarettes/cigarette packets and cartoons with the name 'HOLLYWOOD' identical to the logo and colour scheme of the product belonging to the first respondent. It is also learnt that the appellant and respondent Nos. 2 to 4 are exporting their product to Bulgeria, Romania and other countries to gain wrongfully and to enrich themselves illegally where the first respondent's product has a reputation. The public at large and the traders in all the countries where the appellant and respondent Nos. 2 to 4 are exporting their duplicate product are being deceived and confused and unless the appellant and respondent Nos. 2 to 4 are stopped manufacturing and exporting their product, the first respondent would sustain severe damage to its product. Hence the suit. Pending the suit, the first respondent has sought for interim injunction. The appellant in the counter-affidavit denied those allegations and asserted that it was entrusted with the job work of manufacture of Four Square Premier Filter, Cavanders Gold Leaf, Cavanders Filter, Cavanders Medium, Red & White etc., by Godfrey Phillips India Limited. The third defendant claiming to be the proprietor of the second defendant who is said to be the owner of the trade mark 'HOLLYWOOD', placed an order for manufacture of cigarettes for export. It was learnt through the second defendant that M/s. American Tobacco Company of Balgaria was interested in purchasing cigarettes. So, the appellant agreed to manufacture and supply the said brand for being marketed by M/s. American Tobacco Company of Balgaria. It was provided with necessary documents for undertaking the manufacture and supply of cigarettes which shows that the second respondent had obtained a copyright in respect of the brand, design and description of HOLLYWOOD. The second respondent had also authorised the appellant to manufacture cigarettes for export under the brand name HOLLYWOOD for being supplied to M/s. American Tobacco Company, Bulgaria. The appellant, accordingly, manufactured cigarettes and supplied the same believing that the said brand is owned by the second respondent. The second respondent in its counter-affidavit stated that the second and third respondents are not aware that the appellant is producing various products including HOLLYWOOD brand of cigarettes. HOLLYWOOD is not a mark registered in India. The third respondent representing the second respondent, made an application to the Registrar of Trade Marks on August 19, 1993 informing that the second respondent is manufacturing and using HOLLYWOOD brand since 1990. The first respondent has not registered its trade mark in India. The Collector, Central Excise, Hyderabad approved the surface design of HOLLYWOOD brand cigarettes in Hard pack and soft pack by his letter dated October 28, 1993. If the appellant and respondent Nos. 2 to 4 are allowed to manufacture and export their duplicate product, the first respondent would suffer loss of goodwill and reputation to their product.
13. The first respondent in I.A. No. 1032 of 1994 is also a manufacturer of cigarettes with the brand name Assos/International Assos with registered trade mark in several countries in the world since several decades. It came to know that the appellant is manufacturing cigarettes with the same brand name Assos and International Assos and is exporting the same outside India to gain at the expense of the first respondent. The appellant and the second respondent are passing off spurious goods manufactured by them with the brand name Assos/International Assos and are encashing the reputation of the brand name of the first respondent. Hence the suit. The first respondent has also filed an application for a temporary injunction, pending the suit.
14. The appellant is a registered company incorporated under the Companies Act. It was entrusted with the job work on contract basis in the year 1985 for manufacture of cigarettes by Godrej Phillips India Limited. The second respondent claiming that the trade mark Assos/International Assos belongs to the appellant, placed an order for manufacture of cigarettes for export purpose providing necessary documents. The second respondent in its counter-affidavit stated that it has been using the said mark for five years. It has also made an application in Form TM-54 for search of the trade mark of Assos as per Rule 24(1) of Trade and Merchandise Marks Rules, 1959 and sought for registration of the said trade mark under the Trade and Merchandise Marks Act, 1958, and hence it is entitled to use the mark and the first respondent cannot prevent the appellant from manufacture and export of cigarettes.
15. The orders made in I.A. No. 784 of 1994 in O.S. No. 3 of 1994 and I.A. No. 920 of 1994 in O.S. No. 6 of 1994 are the main orders granting interim injunction, pending the two suits which are under challenge.
16. C.M.A. Nos. 1032 and 1035 of 1994 are filed questioning grant of injunction pending the suit. C.M.A. No. 1163 of 1994 is in the nature of cross-objections for the said order since this appeal is filed by the plaintiff in so far as rejection of some reliefs prayed for are concerned. The orders granting temporary injunction, pending O.S.No. 6 of 1994 are being challenged in C.M.A. Nos. 1031 and 1036 of 1994. C.M.A. No. 1162 of 1994 is in the nature of cross-objections which is filed by the plaintiff in so far as rejection of certain reliefs prayed for by it are concerned.
17. C.R.P. Nos. 2617 and 2618 of 1994 are filed by the first defendant in O.S. Nos. 3 and 6 of 1994 seeking for orders that the Court has no jurisdiction to entertain the suit. C.R.P. Nos. 2619 and 2629 of 1994 are filed by the first defendant in both the suits to hold that Mr. Deepak Dhingra is not the proper person to file the suits. The first defendant in both the suits is one and the same.
18. The main contention of the plaintiff-first respondent is that it has established certain reputation in the world market and the appellant and other respondents are manufacturing and exporting their goods under the mark and device of the plaintiff. Therefore, the plaintiff is entitled to seek an order of injunction preventing them from imitating the said mark or device.
19. Action for infringement of a Trade Mark is a statutory right when it is registered. The validity of registration assumes importance in such cases. No action lies for infringement of an unregistered Trade Mark. Notwithstanding the fact mat the Trade Mark is not registered, still action is maintainable for passing off goods as the goods of another person. No man can have a right to represent his goods as that of another. If there is false and deceitful representation either expressly or impliedly, then action for passing off lies when it is likely to affect the reputation of another. So, what is necessary in these cases is that the plaintiff has to establish that his mark has attained a certain degree of protectable reputation. The mark or identity should have become distinctive or identifiable of the product manufactured by the plaintiff. If the get up or the mark has been distinctive and there would be probability of confusion if a similar product co-exists in the market, it is actionable. If the get up with which the goods are identified or associated with in the mind of the purchaser creates confusion with the other goods, passing off is proved. The test is how an average man of ordinary intelligence would react when goods of different make but with similar appearance appear in the market. Deceptive resemblance in view of visual similarities amounts to passing of. What all necessary is if the plaintiffs have established a reputation with regard to their goods and if the defendants mark is likely to deceive and cause confusion in the mind of the public, it becomes a case of passing off. The Court has to look at the mark bearing in mind the customers who would be buying the goods. The test is whether the deceptive mark so nearly resembles the mark of the plaintiff, and whether it is likely to misguide and confuse the public. Passing off arises by use of his goods under the trade name or mark of a rival trader so as to induce a potential purchaser to believe that his goods were those of the rival trader. Passing off may be evident in making articles deliberately like that of the other trader with a get up indistinguishable from that of the other with an intention to take advantage of the reputation of the other trade. The public have a right to be protected against deception. The trader may adopt a camouflage in order to pass off his goods as that of his rival trader under a particular name or mark in order to gain wrongfully. Cheating in trade must be prevented and the public should be protected. Eye is the best judge to distinguish visual or phonetic similarities. If the eye cannot distinguish one product from the other by ordinary care, it amounts to brazen and dishonest imitation where the original manufacturer requires protection of his reputation. No actual damage sustained by the plaintiff need be proved. What all is required under law is one is not entitled to represent his goods as that of another, but it is not necessary for the plaintiff to prove that the defendant did this intentionally or with an intention to deceive. If the action of the defendant is likely to cause damage to the reputation of the goods of the plaintiff, it is actionable.
20. In order to establish passing of,, what emerges from the above discussion is (1) it is enough if the plaintiff establishes that his goods enjoy a particular reputation and they have acquired a distinctive or secondary meaning in connection with his business; (2) the plaintiff need not prove actual damage or loss; and (3) it is enough if the plaintiff establishes that there is every likelihood of deception or confusion in the mind of the purchaser.
21. I will now examine the facts of this case in the light of these principles.
22. No witnesses were examined on either side in both the suits in these interlocutory applications, but only certain documents were marked on both sides. Exs.A-3 to A-6 are the main documents which are the Annual Reports of Souza Cruz for the years 1991-92 in respect of HOLLYWOOD brand of cigarettes. So also in respect of Assos/Assos International/International Assos, the Annual Reports for the years 1990-1991-1992 are marked on behalf of the plaintiff in O.S. No. 3 of 1994. As already stated the Plaintiffs in both the suits plead that they are the leading business houses in manufacturing, selling and exporting of their respective brand of cigarettes, to several countries in the world. They have a distinctive logo and colour scheme of their products and have earned a good-will and reputation of their mark/brand name in the world market. They have also registered their trade mark/name in several countries. They came to know that the defendants have started manufacturing cigarettes in the brand names of the plaintiffs and passing off those cigarettes to or exporting those cigarettes in the same get up and coverage as if they are the cigarettes manufactured by the plaintiffs thereby affecting the reputation and good-will of the plaintiffs' trade and business. From Ex. A-5, the Annual Report for the year 1992 for the plaintiff-company, it is seen that HOLLYWOOD brand of cigarette product was able to capture up extensive business due to its superior quality, and, therefore, the plaintiff-company could make a profit of 161.8 million U.S. Dollars. This itself shows that by 1992, the plaintiff's product has earned a reputation and good-will of its own. It is admitted that the second defendant had filed an application for registration of this Trade Mark HOLLYWOOD' on August 19, 1993. There is also no proof that any business was done prior to the year 1992 by the defendants. Under these circumstances, prima facie, I am of the view that the defendants have taken to imitating the plaintiff's product. This view of mine is further fortified by a comparison of get up of the cigarette packets belonging to the plaintiff and the defendants, Exs.A-7 and Ex.A-8 respectively. Ex.A-7 is the product manufactured by the plaintiff. Ex.A-8 is the duplicate of the plaintiff's product. It is a replica of the plaintiff's product in all respects. So also in respect of Assos/Assos international / International Assos brand of cigarettes, Ex.A-9 is the duplicate cigarette packet of the plaintiff's product (Ex.A-8) cigarette packet. The Annual Reports marked under Exs.A-5 to A-7 in this case also clearly indicate that the plaintiff is making huge profits by exporting its brand of cigarettes to several countries since 1990 onwards. Therefore, the defendants have started imitating the Trade Mark and the get up of the cigarette packets of the plaintiff. To the nacked eye the get up, the colour, the logo and the other particulars appear to be demonstrably identical in all respects. Of course, the close resemblances or identical get up by itself may not be a conclusive proof for determining the likelihood of deception or confusion in the mind of the public. Certainly it is one of the crucial tests. By merely establishing the identity of the get up of the competing Trade Marks itself, the plaintiff may not succeed. It has to further establish that the name or description or get up of the product put to unlawful use by the defendants of which the plaintiff complains came to be associated in the mind of the public with the product of the plaintiff. In other words whether the product of the plaintiff has become distinctive or identifiable with a particular Trade Mark and the defendants are describing or getting up their product as to likely to mislead the public into believing that they are acquiring the goods of the plaintiff while in-fact, they are purchasing the goods of the defendants. As already seen, the plaintiffs have by the large circulation of their products among several countries in the world and the huge profits they are earning have prima facie established that their product has acquired a reputation which is distinct and identifiable with their Trade Mark, name and good-will which is protectable from imitation.
23. Sri M.L. Lahoti, the learned Senior Advocate appearing for the appellants contends that the suits are filed questioning infringement of the Trade Mark and this is evident from the General Power of Attorney obtained by Mr. Deepak Dhingra and the suits are not maintainable; inasmuch as the plaintiffs have not registered their Trade Mark in India. It is true, the plaintiffs have not registered their Trade Mark in India. But, Section 55 (1) of Trade and Merchandise Marks Act, 1958 is an answer for non-registration of Trade Mark in India and the suit is maintainable though the plaintiffs have not registered their Trade Mark in India.
24. Section 55(1) reads as follows:-
"55 (1)The application in India of trade mark to goods to be exported from India and any other act done in India in relation to goods to be so exported which, if done in relation to goods to be sold or otherwise traded in within India would constitute use of a trade mark therein, shall be deemed to constitute use of the trade mark in relation to those goods for any purpose for which such use is material under this Act or any other law."
Therefore, this objection that the suit is not maintainable on this count cannot be sustained.
25. Sri K. Pratap Reddy, the learned Senior Counsel appearing for the respondents-plaintiffs relying on Section 27(2) of the Act contends that non-registration of the Trade Mark is not a bar for taking action against passing off.
26. Section 27(2) reads as follows:
"27(2) Nothing in this Act shall be deemed to affect rights of action against any person for passing-off goods as the goods of another person or the remedies in respect thereof."
Therefore, it is clear that in an action for passing-off, registration of the trade mark is not a pre-requisite. The Supreme Court in a decision reported in Corn Products v. Shangrila Food Products, , observed as follows:
"An average purchaser would therefore be likely to think that the respondent's "Gluvita biscuits" were made with the appellant's "Glucovita" glucose..................So, a Trade connection between glucose and biscuits would appear to be established. We are therefore of opinion that the commodities concerned in the present case are so connected as to make confusion or deception likely in view of the similarity of the two trade marks."
The Supreme Court again in a decision reported in Ruston & Hornby Ltd. v. Z. Engineering Co., , has reiterated the same view. It is a case where Ruston & Homby Limited at Linclon, England carries on business in the manufacture and sale of diesel internal combustion engines etc., while Zamindara Engineering Company started manufacturing in India Rustam internal combustion engines under the Trade mark 'Rustam'. The contention of Zamindara Engineering Company is that they are not using the trade mark 'Ruston', but they have adopted the trade mark "Rustam India", and, therefore, there is no question of any deception or infringement. The Supreme Court did not agree. In this connection, the Supreme Court observed that "in a passing-off action the issue is as follows:
"Is the defendant selling goods so marked as to be designed or calculated to lead purchasers to believe that they are the plaintiff's goods? It very often happens that although the defendant is not using the trade mark of the plaintiff, the get-up of the defendant's goods may be so much like the plaintiff's that a clear case of passing off would be proved.............On the other hand the gist of a passing off action is that A is not entitled to represent his goods as the goods of B but it is not necessary for B to prove that A did this knowlingly or with any intent to deceive. It is enough that the get-up of B's goods has become distinctive of them and that there is a probability of confusion between them and the goods of A. No case of actual deception nor any actual damage need be proved."
In view of these decisions, what follows is if the defendant follows unfair trade competition by deception and imitation of the get-up on the cigarette packets, action lies against piracy of plaintiffs' trade mark which has acquired protectable reputation. However, the learned Counsel for the appellants relying on a decision reported in Amway Corporation v. Eurway International Limited, (1974) R.P.C. 82, contends that if there is no market in Bulgaria for the plaintiffs goods, there is no cause of action for the plaintiffs and no action lies therefor for passing off. In the above case an American Company 'AMWAY' laid the action against British Company 'EURWAY' for passing off. No doubt, the Chancery Division could not approve the circumstances namely, the plaintiff prepared a list of 500 persons for appointment as distributors in USA who would in turn appoint their friends or relatives as distributors in UK, the plaintiff advertises a full page advertisement about its Company in many magazines in UK and the plaintiff published about their opening of business in UK in their house magazine which has a circulation of over half a million copies a month, as enough for granting temporary injunction prayed for. However, the fact remains that no business commenced in UK which is not so in the present case and so, it is not comparable to this case.
27. The lower Court relied on a passage at page 521 of Law of Trade Mark and passing off by P. Narayanan, wherein it is stated that the acts done by the defendants may not result in passing off in India, but if they are meant for passing off in a foreign country, action will lie against them in India.
28. It is the contention of the plaintiffs that the goods of the plaintiffs are being exported to a Bulgaria.
29. The learned Counsel for the appellants has also placed reliance on a Division Bench decision of this Court reported in Teju Singh v. Shanta Devi, . The Division Bench held that the two competing trade marks are not identical to the nacked eye, and, therefore, held that the plaintiff is not entitled for injunction. Hence this decision also does not help the appellants. The view I have taken gets ample support from the following decisions referred to by Sri K. Pratap Reddy, the learned Senior Counsel for the respondents-plaintiffs who has also cited some English cases in addition to the Indian decisions. Apple Computers Inc. v. Apple Leasing & Industries, 1992 (1) Arbitration Law Reporter 93; Brook Bond India Ltd. v. C. Patel & Co., 1994 PTC 183; Express Bottlers v. Pepsico Inc. and Ors., 1988 IPLR Vol.13, 99; Kamal Trading Co. v. Gillette U.K. Ltd., 1988 IPLR Vol.12, 135; Metro Playing Card Co. v. Wazir Chand, ; Yardley & Co. Ltd. v. Kamal Trading Co. (Bombay High Court Appeal No. 1116 of 1987 from Notice of Motion No. 2495 of 1986 in Suit No. 2965/86).
30. Sri Lahoti, the learned Senior Advocate next submitted that there is no authority to file the suits for passing off. The learned Advocate made a reference to the General Power of Attorney marked as Ex.A-1 signed by the General Manager of PAPASTRATOS Cigarette manufacturing Company. According to the learned Advocate, Clause (1) of the said power of attorney document merely authorised the holder of the General Power of Attorney to take action for infringement of trade mark only and it does not specifically authorise him to take action for passing off. In support of his contention, he relies on Rule 2 of Order III C.P.C. and contends that the recognised agent or person holding power of attorney is authorised to make applications and acts on behalf of principals. The words "such applications" in the said rule, clearly implies that the agents or power of attorney holders shall make such applications and do such acts as are specifically authorised and nothing else. He placed reliance upon a decision reported in Desappa Nayanim v. Ramabhaktula Ramiah wherein it is held that the terms of the power of attorney should be construed strictly. In the said decision, it was held that a special power of attorney who was authorised to file a suit in a particular Court cannot have authority to file a suit or conduct the proceedings in another Court But the same is not the case here. He also relied upon another decision reported in Rawanathan v. Kumarappan, AIR 1940 Madras 650, wherein it is observed that the authority given to the power of attorney holder to adjust the subject-matter of the suit cannot be construed to have authority to refer the matter to arbitration. The decision reported in K. Anthiah v. Madan Rao, , relied upon by the learned Counsel for the appellants is also to the same effect. The learned Senior Advocate has also relied on another decision reported in D.H.M. Framji v. Eastern Union Bank, AIR 1951 Punjab 571, to show that the instrument conferring general power should be construed strictly. No doubt, the instrument of power of attorney merely mentions that the power of attorney agent shall take action for 'infringement' of trade mark which term may not be appropriate in stricto senso. But a reading of the entire document makes it clear that the power of attorney agent is directed to take action for infringement of their right in trade mark in a generic sense. Therefore, this contention in my view cannot be accepted.
31. It is also contended by the learned Senior Advocate for the appellants that the document - power of attorney - is not valid since it was executed by the General Manager and not by the Managing Director of the Company. I am afraid I cannot accede to this contention and hold that the suits are not maintainable unless evidence is adduced as to whether the General Manager has authority to execute the power of attorney on behalf of the company. Whether the bye-laws authorise the General Manager to execute a deed of general power or whether he is backed by a resolution of the Board of Directors is a matter of evidence which will be adduced during the course of trial.
32. Sri E.S. Ramachandra Murthy, the learned Counsel appearing for the second respondent contends that Under Section 4 of Powers-of-Attorney Act, 1882, the instrument creating power of attorney shall be deposited in the Court along with the plaint and the plaintiffs not having done so, the suits are not maintainable. Evidently, xerox copy of which has already been marked as Ex. A-1, and the plaintiff in O.S. No. 3 of 1994 will produce the same along with the other documents when the trial Court directs the party to file their documents in support of their contentions. I am, therefore, unable to hold that the suit is not maintainable on this score; in as much as the suit is numbered by the Registry of the lower Court in view of the production of a xerox copy of the instrument of power of attorney.
33. The learned Counsel has also attacked the letter of authority creating power to file the suit in Mr. Deepak Dhingra on the ground that it does not confer power on Mr. Deepak Dhingra to file the suit. The letter of authority is marked as Ex.A-1 in O.S. No. 6 of 1994. Two directors appeared to have signed the said letter. It appears to have been executed in Brazil. Here again, the objection is that this document is not executed on the required stamp paper. It is also contended that only some directors have signed the letter of authority, but not the Managing Director. Under Order 29, Rule 1 C.P.C pleadings may be signed and verified on behalf of the Corporation by the Secretary or by any Director or other Principal Officer who is able to depose to the facts of the case. The learned Counsel for the respondents relying on a Division Bench Judgment of the Bombay High Court reported in All India Reporter Ltd. v. Ramchandra, , contends that such defects are not fatal, but are only curable. Even otherwise, the question of validity of the letter of authority can be gone into at the time of trial of the suit and if the document is insufficiently stamped or unstamped, penalty stamp duty will have to be collected Under Section 35 of Indian Stamp Act, 1899. As this document has already been marked as Ex.A-1 for purposes of these interlocutory applications, I do not think that I will be justified in holding at this stage that there is no authority in Mr. Deepak Dhingra to file the suit. Such defects are always curable by the plaintiff by ratifying the filing of the suit and an authority for this proposition can be found in a decision of a Division Bench of the Calcutta High Court reported in Ashoke Kumar v. Gobinda Chandra, .
34. Sri E.S. Ramachandra Murthy, the learned Counsel for the second respondent has also contended that although the letter of authority was executed in favour of four persons, but only one of them alone filed the suit, and, therefore, the suit is not maintainable. I cannot accept this contention as anyone of them to whom the letter of authority was given can file the suit and the suit need not be filed jointly by all of them.
35. Sri Lahoti, the learned Senior Advocate appearing for the appellants contended that the second respondent had already made an application for registration of the trade mark in India and there is no application for registration of the trade mark by the plaintiffs so far, and the plaintiffs have no locus standi to file the suit. It is also his contention that as and when the trade mark of the second respondent is registered it will relate back to the filing of the application for registration, and, therefore, the plaintiffs are not entitled to claim any relief in these applications. Sri K. Pratap Reddy, the learned Counsel for the respondents-plaintiffs countering these arguments contends that the suits are not based on the infringement of any trade mark, but are based on common law 'Tort' and, therefore, action for passing off lies, even though the trade mark has not been registered by the plaintiffs in India. There is force in this contention, and, I accordingly accept his contention that for passing off action registration of a trade mark is not a sine qua non.
36. Sri E.S. Ramachandra Murthy, the learned Counsel for the second respondent contends that no injunction can be granted preventing the defendants from manufacturing and exporting cigarettes by way of these interlocutory applications. He relies upon a decision reported in Karol Distrilleries v. Dowell & Co. Ltd., 1978 (1) ALT 228. No doubt, the learned Judge while dealing with a passing off case, vacated the interim injunction granted by the trial Court and directed to expedite the trial of the suit. The learned Judge found that the two competing marks and designs of brandy are not similar; whereas in this case the competing marks and get-up are wholly similar. It is true that to grant injunction restraining the defendants from manufacturing and exporting their goods by way of Interlocutory Applications even before the trial is concluded is an extra-ordinary relief in favour of the plaintiff. While granting the said relief, it is the duty of the Court to see the prima facie case i.e. the high degree of chance of success of the plaintiff in the suit, apart from balance of convenience and irreparable loss. In case of this nature if injunction, pending the suit, is not granted the plaintiffs' reputation may suffer and the plaintiffs may sustain irreparable loss. On the other hand, if the defendants succeed, they are entitled to recover damages from the plaintiffs for the loss sustained by them. Weighing the relative hardships, I am of the view that if the good-will and business of the plaintiffs suffer, it cannot be recouped, Therefore, I am of the view that balance of convenience lies in favour of the plaintiffs.
37. For all these reasons, C.M.A. Nos. 1031, 1032, 1035 and 1036 of 1994 are dismissed. So far as C.M.A. Nos. 1162 and 1163 of 1994 are concerned, they are filed by the plaintiffs after the appeals filed by the defendants are posted for hearing and heard in part. It is also admitted that the plaintiffs have not registered their trade mark in India, nor are they selling their goods in India. Therefore, the question of passing off or mistaken identity by the public in India does not arise. Therefore, agreeing with the lower Court, I dismiss these Civil Miscellaneous Appeals. No costs.
38. So far as the Civil Revision Petition Nos. 2617 and 2618 of 1994 are concerned, it is already held that the lower Court has jurisdiction to entertain the suits as trade mark used on goods manufactured in India meant for export will constitute use also within India, although there is no actual use in India, as per Section 55(1) of Trade and Merchandise Act, and, therefore, the plaintiffs can invoke the jurisdiction of the Courts in India for protection of their rights invaded. Therefore, the Civil Revision Petitions are devoid of merits, and, are accordingly dismissed. No costs.
39. So far as Civil Revision Petition Nos. 2619 and 2629 of 1994 are concerned, Sri E.S. Ramachandra Murthy, the learned Counsel for the second respondent relying on Rule 32 of Civil Rules of Practice, contends that unless the instrument of power of attorney on which the plaintiffs rely is filed with an affidavit that the said authority is subsisting, and unless the Court accords permission in writing, the suits are not maintainable. It is stated that an application was filed by the plaintiffs and the lower Court has passed orders permitting the plaintiffs to file the suits. Therefore, this objection also has no force. Hence, Mr. Deepak Dhingra has got sufficient authority to file the suits, and, so, the suits cannot be thrown out on this score. In view of what is held already, these Civil Revision Petitions also fail and are accordingly dismissed. No costs.