Delhi District Court
Toyotomi Co. Ltd. & Anr vs Alfa Therm Ltd on 5 February, 2008
1
IN THE COURT OF MS. ASHA MENON, ADJ,
TIS HAZARI, DELHI.
SUIT NO. : 12/05
TOYOTOMI CO. LTD. & ANR. ....PLAINTIFFS
Vs.
ALFA THERM LTD. ....DEFENDANT
ORDER
This order will dispose off the application moved Under Order 39 Rules 1 and 2 CPC by the plaintiffs in the present case.
The plaintiffs are Toyotomi Company Ltd and TLG - Spectra Visions Private Ltd. and have filed this suit for permanent injunction against the defendant M/s. Alpha Therm Ltd. seeking to restrain the defendant from infringing the copyright of the plaintiffs and passing off the goods of the defendant as those of the plaintiffs while seeking rendition of accounts etc. It is stated in the plaint that the plaintiff No. 1 Toyotomi Company Ltd. was a Company incorporated in Japan while the plaintiff No. 2 TLG-Spectra Visions Private Ltd is an Indian Company. The suit has been filed through Sanjeev Talwar employed as G.M. Operations of plaintiff No. 2. It is stated that the plaintiff No. 1 has been engaged in research and 2 development interalia of kerosene heaters technology and has been manufacturing and marketing kerosene stoves and heaters since 1949. it is claimed that the plaintiff No. 1 has developed a portable kerosene heater called the KSA-120/ OMNI 230 Type - E Heater in the year 1989. it is stated that the basic operation and the new and novel features have been described in great detail in the Operation and Maintenance Instructions Manual of the plaintiffs which according to the plaintiffs constituted their original literary work within the meaning of Copyright Act, 1957.
It is further stated in the plaint that during the course of development the plaintiff No. 1 through its employees working under a contract of service had prepared engineering drawings on the basis of which the KSA-120/OMNI 230 Type - E were manufactured by the plaintiff No.1. It is stated that the these drawings were as indicated in the Operations and Maintenance Instructions Manual and were protected under the Copyright Act 1957 by virtue of the International Copyright Order 1958 and India's membership to the Berne Conventions 1886 and as such these drawings which enjoyed copyright in Japan, having been published first in that country were also protected here. It is stated that by virtue of Section 14 of the Copyright Act 1957 the plaintiff No. 1 being the owner of the 3 copyright in the said drawings, had an exclusive right to re- produce the said drawings whether in two dimension form or even three dimensionally. Hence it has been stated that the manufacture of the Kerosene Heaters by any other NTT based on the plaintiff No.1's said engineering drawings or based upon the said KSA -120/OMNI 230 Type -E amounted to violation of the copyright of plaintiff No. 1.
It is stated that the plaintiff No. 2 has been importing the said KSA -120/OMNI 230 Type -E heaters from plaintiff No. 1 since 1996 and supplying the same to the general public. It is further stated that the said heaters were being sold by plaintiff No. 2 in India in large quantities and the product of the plaintiffs had acquired goodwill and reputation in the market on account of their excellent and superior quality. It has been stated that the product of the plaintiffs enjoyed enduring demand in the market and the product of the plaintiffs had been advertised widely in the print media and through other means of publicity.
It is stated in the plaint that in July and August, 2004, the defendant through one Mr. Prem Singh caused purchase of the said KSA-120/ OMNI-230 Type E and other products from the plaintiff no. 2. It is also stated that in August and December 2004 the defendant had competed with the plaintiff no. 2 for 4 supply of Kerosene oil room heaters to the defence department at a price a bit lower than the plaintiff no. 2. It is stated that without having a manufacturing set up or facility for manufacture of such heaters the plaintiff no. 2 could not imagine how the defendant was likely to supply the product. It is alleged that the sample submitted by the defendant called AGNI-230 and or KERO-230 was the product of the plaintiff no. 1 i.e. KSA-120/ OMNI-230 Type E purchased by the defendant from the plaintiff no. 2. It is alleged that the defendant has made some insignificant modification to some nonworking parts of the plaintiffs product and had submitted the sample.
It is stated that the plaintiffs were approached by the defendant for settlement but when the plaintiffs refused to agree to the unethical design of the defendant the defendant threatened to get the product KSA-120 OMNI 230 Type E manufactured from different persons and assemble it and supply the same. It is alleged that in the circumstances the defendant was clearly infringing the plaintiff's copy right in the engineering drawing and technical manual by manufacturing or getting it manufactured and / or submitting as sample one of the KSA-120 / OMNI 230 Type E of the plaintiff or its exact replica except the outer cover.
Hence the suit praying for permanent injunction 5 restraining the infringement of copy right in engineering drawings on the basis of which the KSA-120/ OMNI 230 Type E is manufactured and for a permanent injunction restraining passing off of the goods of the defendant as and for the goods of the plaintiffs or goods equivalent to of the plaintiffs or goods connected with the plaintiff in one or the other manner. Orders for delivery up and rendition of account of profit have also been prayed for. By means of the application under order 39 rules 1 & 2 CPC the plaintiffs have prayed for ad interim injunction restraining the defendant etc. from manufacturing, selling, offering for sale, advertising, directly or indirectly dealing in KSA-120/ OMNI 230 Type E or parts or components or fittings thereof as is a 3 dimensional reproduction of the plaintiff's engineering drawings or from doing any other thing as is an infringement of plaintiff's copy right in the engineering drawing, manual etc. relating to KSA-120/ OMNI 230 Type E or other heater of the plaintiff no. 1 and from passing off their products as and for those of the plaintiff or connected with the plaintiff in one or the other manner.
In the written statement filed on behalf of the defendant several preliminary objections have been raised. It is stated that there was no cause of action for filing of the suit and that no copy right subsisted in the engineering drawings and / 6 or operation and maintenance instructions manual as they were not original works within the meaning of the Copyright Act. It is stated that the manufacture of kerosene heater does not require any specific engineering drawings as the process for the manufacture of these heaters was well known and too obvious.
It is further stated that the portable kerosene heater could not be the subject matter of Copyright Act 1957 and could be the subject matter of design and / or Patent Law if the requisites under those laws were satisfied. It is further stated that the plaintiffs have not disclosed the names of the employees and the period when such drawings were allegedly prepared /published and by whom and in which manner. Hence it is stated that the essential particulars and supporting documents were absent and the plaintiff could not claim ownership of copyright in any work whatsoever.
It is further stated that in any case the suit of the plaintiff was barred under section 15 (2) of the Copyright Act 1957 since the portable kerosene heater subject matter of the suit was capable of being registered under the Designs Act but was not so registered and had been reproduced more than 50 times by means of an industrial process. It is alleged that the plaintiff has not approached the Court with clean hands since 7 similar types of portable kerosene heaters manufactured by various manufacturers were available in the market prior to the introduction of the products of the plaintiffs in the year 1989. It was further stated that the plaintiff is trying to protect the operational features, internal system of kerosene heater, dimensions, weight, output etc. which could be subject matter of protection under the Patents'Act or Designs Act and that in any case such protection could be only for a maximum of 14 years and 15 years respectively.
It has also been claimed that the suit of the plaintiffs was liable to be dismissed as it was not properly instituted and the original engineering drawings had also not been filed. It is also stated that there was no likelihood of any confusion and deception and therefore the suit for passing off was liable to be rejected.
In the written statement it is submitted further that the defendant was an ISO 9001:2000 Company engaged in the business of manufacture and sale of various items including incinerator, oil burner, air heater,fluid bed dryer, bukhari, thermic fluid heaters, steam boilers, water heaters, space heaters etc. since the year 1988. It is claimed that in the year 2002 the defendant company started research and development for manufacture and sale of space heating 8 equipments to be run by kerosene and the defendant was interested in supplying such items to the defence department. It is stated that for research and development the defendant had made market studies to find the existing products which were available and the consumers requirement and accordingly the defendant was the first company in India to develop and manufacture kerosene heating stoves.
It is further stated that in the year 2004 the defendant had submitted samples of Bukhari Large which is basically a vented kerosene heating stove and the defence department without asking for any technical or mechanical amendment approved of the sample with an excellent report and 1600 vented heating stoves were actually supplied by the defendant to the defence department. It is stated that it was during the manufacture of the Bukharis that the non vented kerosene heating stoves were developed by the defendant without any need of specific engineering drawings. The heater of the defendant is also capable of being used as a vented heater by fixing Chimney for which provision had been made. The chimneys were also manufactured by the defendant.
It is claimed that the defendant'sproduct was of higher capacity and more efficient as it was of 7866 watt / 26904 BTU. It was stated that a mere comparison of the two 9 products would show that there were differences between them. The capacities of the two heaters were different. The colours were different. The fuel gauge of the defendant's product was one one side of the flame regulator whereas the plaintiff'sproduct had the fuel gauge on the other side of the flame regulator. It is stated that the defendant'skerosene heaters were manufactured in India by the defendant except for one component which was imported. It is stated that the tender of the defendant was accepted on merits and the present suit was intended to kill the defendant so that the defendant did not compete with the plaintiffs in the market.
The defendant has denied all the allegations on merits particularly that the employees of plaintiff no. 1 had created engineering drawings or that the plaintiff had copyright in the same or that the defendant had through Mr. Prem Singh caused the purchase of KSA-120/ OMNI 230 Type E and other products in July and August 2004 from the plaintiff no. 2 or had submitted the same as sample to the defence department by modifying non working parts. In short the defendant has prayed that the plaintiff has no case and that the suit was liable to be dismissed. In respect of the application under Order 39 Rule 1 & 2 CPC it was submitted that when the plaintiffs had no case at all no interim protection as prayed could be granted. 10
The Ld. Counsel for the rival sides Sh. M. K. Miglani for the plaintiffs and Sh. Gurvinder Singh for the defendant have argued at great length.
It has been submitted by Sh. Miglani for the plaintiffs that all original works had copyrights. It is argued that under S.2 ( c ) ( i ) of the Copyright Act 1957, drawings were artistic works and therefore, copyrights in drawings could be claimed. It is submitted that what constitutes "original" is the absence of proof of being a copy of something else. Thus, since the defendants did not claim to be the originator of the drawings and in fact did not challenge this assertion of the plaintiff no 1, copyrights existed in the drawings of the product of the plaintiffs. Under law there was no requirement that the original work be registered before copyrights could be claimed in an original work.
It is further submitted that the employees of plaintiff no.1 had developed the drawings and under S.40 of the International Copyright Order 1999, the work created in Japan by the employees of the plaintiff no.1 was fully protected in India since the product of the plaintiff no.1 came to India in 1996. Ld. Counsel submitted that under S.51 of the Act, if the defendant did any act without the permission of the plaintiff no.1 there was infringement. Ld. Counsel pointed out that the 11 drawings and the products of the plaintiffs were already in the market when the defendant entered it. Therefore the onus was on the defendant to show that the plaintiffs' works were not original. Since the defendant has failed to show that the drawings of the plaintiff were copies, the plaintiffs had the sole rights to reproduce the drawings into products or the product into two-dimensional work, On facts the Ld. Counsel counsel for the plaintiffs has submitted that the defendant had no reason to use the number 230 and had also used the name '' Agni'' to the plaintiffs''OMNI'.
It is submitted that the use of the same number was only because the defendant had purchased the product of the plaintiff and had made some cosmetic changes in its stove .The malafides of the defendant was established from the fact that after copying the product of the plaintiffs the defendant had competed with the plaintiffs to make supplies to the Defence forces. Thus it is submitted that equity and the balance of convenience lay with the plaintiffs and that the plaintiffs would suffer irreparable loss and injury if no injunction was issued as prayed for.
The Ld. Counsel for the defendant has however submitted that no case had been made out by the plaintiffs for the grant of any injunction against the defendants. It is argued 12 that there was no evidence to show that the plaintiff no.1 , which was a Japanese Company had appointed plaintiff no.2 as its sole distributor or that Sh.Sanjeev Talwar was duly authorized to file this suit on behalf of both the plaintiffs. Thus it is his submission that as the suit itself was not properly filed no relief on such a suit could be granted. It is further submitted that there was no evidence to show that the product was in existence in the year 1989.
It is submitted that the names of the employees who had developed the product and the drawings have not been named, nor has been the year of creation disclosed. It is submitted that the onus was on the plaintiffs to show that the work of the plaintiffs was original and only then would the onus shift. It is submitted that the pre-requisites for claiming copyright has not even been pleaded. Nor have the plaintiffs placed on record the work in which copyright has been claimed. It is submitted that it was not disclosed as to when the drawings had been published.
It has been submitted that there could be no copyright in the operation manual which was the only material filed. It is stated that the plaintiffs could not claim copyright in the drawings in the operation manual. It is submitted that no- one can manufacture anything on the basis of the matter given 13 in an operation manual. Besides, the ld. Counsel submits, the plaintiffs were not claiming copyright in the drawings in the operation manual.
The next submission of ld. Counsel for the defendant is that all internal parts of the kerosene stove would have been subject matter of patent whereas the outer covering would constitute design. It is submitted that patent could claim protection for 15 years while a registered design would be protected for 20 years. It is submitted that where registration under patent and design law had not been carried out, there could be no copyright available. It is argued that by claiming copyright, the plaintiffs were seeking to extend the period of protection much beyond these limits to the lifetime of the person claiming copyright and 60 years.
It is further submitted that under S.15 ( 2) of the Copyright Act, if a work could be registered as a design , but was not so registered, when 50 reproductions have occurred, copyright ceases to exist. It is submitted that in the present case, the plaintiffs themselves claim that they had been producing their stoves from 1989.The sales figures also would show that there have been more than 50 reproductions. It is therefore submitted that no copyright in engineering drawings could be claimed by the plaintiffs. It is stated that there can be 14 no copyright in process. Thus, the drawings could not have any copyright, though the creator could have claimed patent and the designer of the configuration protection under Design law.
It is further refuted that the defendant was seeking to pass off his goods as those of the plaintiffs.
It was further argued by Ld. Counsel for the defendant that the product was not a new creation of the plaintiffs and was already in existence in the market and that there were many manufacturers of kerosene stoves and heaters the world over. The Ld. Counsel has drawn my attention to the several pamphlets filed by him on the record of different brands of kerosene heaters where the designs were similar with very marginal difference in design. The Ld. Counsel for the defendant has submitted that the defendant was in the market even prior to 1989 since he was manufacturing different kinds of kerosene based heaters. It was submitted that the use of the no. 230 was on account of the nature of the kerosene heater as it involved 23000 BTU. The Ld. Counsel for the defendant submitted that the defendant was established in 1937 and had vide experience in manufacture of various kinds of heaters and had independently compete for the supply of heaters to the defence forces. It is submitted that there could be no occasion for the defendant to pass off his goods as those of the plaintiff 15 because by a bare comparison of the two kinds of heaters it was obvious that the defendant'sproduct were superior. It is further stated that it was only on account of the superior quality of the defendant'sproduct that the Defence supply tender had been awarded to the defendant. It was submitted that the defence forces could never be misled as the trade marks of the defendant was vastly different from that of the plaintiffs and the quality of the product was also different. It is submitted that if the defendant had no manufacturing unit and the story of the plaintiffs'was to be believed the defendant would not have been able to compete in the tender, be awarded the contract and thereafter complete the supply of the products to the defence forces. It has been submitted that the present suit was only on attempt to throttle the business of the defendant and the suit was liable to be dismissed. Thus it has been submitted that in equity too the plaintiff was not entitled to any relief as claimed. It is submitted that balance of convenience was with the defendant and it would be the defendant who would suffer irreparable loss and injury if an injunction order was passed against it. Hence the Ld. Counsel for the defendant has prayed for the dismissal of the application.
In rebuttal the Ld. Counsel for the plaintiff Sh. Miglani has submitted that the plaintiffs have placed on record the 16 Resolution authorising Sh. Sanjeev Talwar to file the present suit on behalf of the defendant it has been submitted that the plaintiff had placed on record 4 lists of documents to show that the suit has been filed by a duly authorized person and toshow the extent of sales that had taken place since 1997 to 2005 not merely to the defence forces but also to single customers and corporates. Bills of the plaintiff no. 1 exporting heaters to the plaintiff no. 2 have also been filed. Hence it has been submitted that it was erroneous to state that no documents had been filed by the plaintiff in support of their case. It is further submitted that it was not possible to disclose the authors of the engineering drawings since the authorship was joint and it was difficult to retrieve each one'scontribution in the research and development. It is submitted that, that is why there was the deeming provision of Section 17 of the Copyright Act granting the employer the first ownership of copyright. Hence it has been submitted that it was not obligatory on the part of the plaintiff to disclose the authors' names.
Relying on the judgment reported in 2002 24 PTC 349 it has been submitted that original drawings were not required to be filed. It is further stated that the only grievance of the plaintiff was that the defendant should not copy the plaintiff. It was submitted that merely because there were several heaters 17 in the market was no reason to deny the rights of the plaintiff since the defendant had chosen to copy the heater of the plaintiff and not of any other manufacturer. It was further argued that the manuscript drawings were not required to be produced and that the comparison of the operating manual of the plaintiff and operating manual of the defendant was sufficient to disclose similarity. Thus according to Ld. Counsel for the plaintiff the material on record was sufficient for grant of protection to the plaintiff. It was vehemently denied that the sample of the plaintiffs were found of inferior quality by the defence forces. It is therefore submitted that the provision of section 17 and Section 61 of the Copyright Act were not applicable to the facts of the present case. It has been submitted that though there was overlapping in the patent, design and copyright laws they held different fields. It is submitted that Design Act did not protect what is functional and in the present case the defendant had copied the functional parts of the plaintiffs'heater. It is further stated that the copyright claim was in industrial drawings which included not just what met the eye but also internal details such as wick knobs etc. It is further pointed out that vide section 2 (a) artistic work was excluded from Design Act but included under Section 15 (2) of the Copyright Act. It is further submitted that the status 18 quo as on date of filing of the suit was important and admittedly on the date of filing of the suit. The defendant had not yet supplied its heaters to the defence forces and therefore the plaintiffs were clearly entitled to interim protection.
Let us start at the very beginning. What is an engineering drawing? The Wikipedia has defined engineering drawing as a type of drawing that is technical in nature used to fully and clearly define requirements for engineering items. There are standardized conventions for layout, nomenclature, interpretation , size etc. in the creation of engineering drawings. Its purpose is to convey all required information that would allow a manufacturer to produce that product or component. The process of producing engineering drawings and the skill of producing them is often referred to as technical drawing. Engineering drawings are often referred to as ''blue prints'' or ''blue lines'' since they were formally made using a chemical printing process that yield graphics of blue colour paper or alternatively of blue lines on white paper. In the modern reproduction process the lines are sometimes black or multi colored on white paper. Nevertheless the word ''blue prints''are still invogue to refer to engineering drawings. Engineering drawings convey the critical information regarding the shape of the object represented as views from standard 19 directions, the dimensions of the object and tolerances, the material it is made out and its finish. Specified type of lines are used to graphically represent physical objections in an engineering drawing. In short engineering drawing is not like any other drawing and is to be created within certain set of specified parameters for a set purpose.
The next question is would engineering drawings be covered by copy right? Section 2 (c) of the Copyright Act defines ''artistic work'' and in sub clause (i) it includes not only a painting and a sculpture but also a drawing which in turn includes a diagram, map, chart or plan whether or not such work has artistic quality. On a plain reading therefore engineering drawings would be covered by the definition of artistic work and under Section 13 of the Copyright Act 1957 copyright subsists in such work of engineering drawings. The consequences of the subsistence of copyright in engineering drawings, under Section 14 of the Act would be, that, it would keep the exclusive right to do or to authorize the doing of , under sub section (1) clause (c) sub Clause (i) the reproduction of the work in any material form including depiction in 3 dimensions of a 2 dimensional work or in two dimensions of a 3 dimensional work, with the originator.
Having thus come to the conclusion that copyright 20 would exist in engineering drawings we have to turn to the facts of the present case. Though extensive arguments had been addressed, to my mind the only question before the Court is whether the plaintiffs are entitled to seek injunctions against the defendant on the ground that the defendant has infringed copyright of the plaintiffs. A corollary would be in what are the plaintiffs claiming copyright and whether the defendant has infringed the said copyright.
Perusal of the contents of the plaint would reveal that the case of the plaintiffs is that the employees of the plaintiff no. 1 had developed certain engineering drawings on the basis of which a kerosene heater specifically KSA-120/OMNI 230 type E was manufactured. The plaintiffs have claimed copyright in respect of these engineering drawings. The admitted position is that the engineering drawings have not been produced before the Court nor have the details of the creation of these engineering drawings revealed. This according to the Ld. Counsel for the defendant is sufficient to deny to the plaintiffs the relief claimed. However, the Ld Counsel for the plaintiff have contended that the original engineering drawings were not required to be produced for claiming protection of copyright. Reliance has been placed on the judgment of the Hon'bleDelhi High Court in John Richard Brady and others vs. 21 Chemical process Equipments P. Ltd. And another AIR 1987 Del 372 to contend that without the production of the drawings on the basis of other material and on comparison , interim injunction could be granted. A perusal of this judgment does not support the arguments of Ld. Counsel because the person who had created the drawings in which the plaintiffs claimed copy right were contained in their Technical Bulletin which was produced for perusal. It was the machine produced by the defendants in that case that was depicted by their pamphlet. In the present case only the operating manual has been produced by the plaintiff.
When it is kept in mind that engineering drawings are technical drawings prepared according to a set structure then it is clear that the operation manual cannot be treated as engineering drawings. The purpose of operation manual is to allow a purchaser to operate the machines or apparatus that they are purchasing, however, the purpose of engineering drawings is to enable a manufacturer to create the product or their components. These engineering drawings are to serve as the blue prints for the manufacture of a product with utilitarian and functional value. They are not intended to tell the purchaser how to operate the system. In Brady'sCase (supra) the Hon'bleHigh Court had compared the detailed description 22 of the FPU in the Technical Bulletin of the plaintiffs and found that the plea of the plaintiffs that they had supplied the technical material and drawings concerning the FPU was fully supported. It was found that the final drawing of the defendants in that case as depicted in the pamphlet was sufficient to show that the defendants had used the drawings of the plaintiff therein Mr. John Richard Brady to create their product. Therefore, in my view it was essential for the plaintiff to have produced their drawings and to have shown specifically what components and what part of the drawing of the defendant was based on the engineering drawings created by the plaintiff no. 1 through its employees.
In order to be entitled to interim injunction the first requirement is of the disclosure of a prima facie case existing in favour of the plaintiffs. To disclose a prima facie case the plaintiffs were bound to produce the engineering drawings. It is certainly nor a far fetched argument of the Ld. Counsel for the defendant that the plaintiffs were also bound to disclose the year of creation and the name of the creator. The law permits under Section 17 of the Copyright Act 1957 the employer to claim first right of copy right in original work produced by its employees during the course of their employment. It is not enough to say that since the work was joint the name of the 23 creator was not possible to be specified. The team involved in the effort must have been constituted by the employees of plaintiff no. 1 and their names could have been disclosed. The names of the employees constituted that team would also not have been difficult to trace since research and development programmes are not carried out by companies in a vaccum. Funds are allocated, project report submitted and members of the team specified for each effort. Moreover, it would not be difficult too at all to disclose the year in which the drawings were actually created.
It can be concluded without much difficulty that engineering or technical drawings are subject to copy right of their creator or the employer whose employees have created the engineering drawings. Therefore, I need not refer to the extensive arguments advanced on the aspects of design and patents and applicability of the design or the patent Acts. But this conclusion alone would not suffice to grant the relief sought by the plaintiffs. It is not actually in dispute that there are several manufacturers of kerosene heaters. From the pamphlets that have been placed on the record, It is clear that the kerosene heaters have more or less the same functional parts as a container for the fuel or a wick etc. for heating. From the copy of the tender specifications placed on 24 record it is further clear that many aspects in functional & technical aspects would be the same for standard heating equipments of this kind. It was necessary therefore for the plaintiffs to have pointed out what part or what component had been copied by the defendants from the drawings of the plaintiff. It is only if this copying of the drawings was established that the plaintiffs would have been entitled to an injunction. Mere similarity of products of the plaintiffs'and the defendants' will not suffice precisely for the reason that there are several kerosene heaters in the market which are almost similarly shaped and necessarily have similar or same components.
As regards the allegations that the defendant was passing off the goods of the plaintiff, on a plain comparison of the products there appears no likelihood of deception or confusion arising between the two products. There are visible differences in the get up of the product of the plaintiffs KSA- 120/ OMNI 230 Type E and those of the defendant namely called Agni230/KERO 230. The plaintiff has placed on record various pamphlets including one comparative chart with picture of the heaters of the plaintiff, the defendant and 3 other heaters i.e. CORONA 23 D X Sengoku CV 2230 Paseco WKH23. The comparative chart is enough to highlight the visible differences in all these heaters. No man of ordinary prudence 25 would mistake OMNI 230 for AGNI 230. Here the persons to whom the supplies are intended are the defence forces who have stringent standards for qualifying in tenders. There would be no occasion for the defence forces to mistake the product of the defendant as originating from the plaintiffs in these circumstances. There is no phonetic similarity between OMNI 230, AGNI 230 or KERO 230 either. With regard to the performance the defendant has listed in the written statement the comparative performance levels which also sufficiently distinguish the two products. It has been explained that the figure 230 in both models reflect the heating power / BTU. There is no dispute that the product of the defendants has a vent on the top of the heater which is absent in the case of the product of the plaintiffs. Furthermore the grill surrounding the heating chamber is vastly different from that of OMNI 230. The nature of the knob is different as also the shape of the tank, even though the stand on the drip tray is not visible clearly in both the models i.e. OMNI230/ AGNI/ KERO-230. The differences that the plaintiffs have pointed out between their model and the model of other companies can be seen in between the models of the plaintiffs and the defendant also.
Thus I do not find any basis to hold on a prima facie view that the goods of the defendant was being passed off as 26 those of the plaintiffs.
The plaintiffs have thus failed to disclose a prima facie case entitling the plaintiffs to an interim injunction restraining the defendant from manufacturing and selling its product of kerosene heater AGNI/KERO 230. In these circumstances, the balance of convenience does not lie with the plaintiffs. Again if in such circumstances an injunction is issued to prevent the defendant from manufacturing and selling its products the defendant would be put to irreparable loss and injury. However, if the defendant is directed to furnish the regular account of business of products AGNI/KERO-230 quarterly to the Court the interests of the plaintiffs would be protected in case they were to succeed finally.
Thus without expressing a final opinion on the merits of the case the application under Order 39 Rules 1 & 2 CPC stands dismissed.
Announced in the open court on this 05th day of February, 2008. (ASHA MENON) ADDL. DISTRICT JUDGE, DELHI.