Madras High Court
Omega S.A. vs Avanti Kopp Electricals Ltd. And Anr. on 9 July, 2003
Equivalent citations: 2003(27)PTC327(MAD)
Author: R. Jayasimha Babu
Bench: R. Jayasimha Babu
JUDGMENT N.V. Balasubramanian, J.
1. These two appeals are preferred under Clause 15 of the Letters Patent against the order passed by a learned Judge dated 17.3.1997 in O. A. Nos. 29 and 30 of 1997 in C.S. No. 20 of 1997 on the file of this Court.
2. The parties in both the appeals are common. These two applications in the suit were filed for the grant of interim injunction pending disposal of the suit; one on the basis of infringement; and another on the basis of passing off action in respect of the plaintiff's trade mark, 'OMEGA'. Learned Judge has rejected both the applications by passing a common order. Hence these two appeals.
5. Heard Ms. Gladys Daniel, learned counsel for the appellant and Mr. M.K. Rao, learned counsel for the respondents. The impugned order was passed on 17.3.1997 and copies were made ready on 24.7.1997 and the appeals were filed by the appellant on 22.8.1997 within the time. When the matter came before this Court on 15.9.1997, a Bench of this Court felt that it would be appropriate to hear and dispose of the appeals at the admission stage itself and directed the Registry to post the appeals after four weeks. We find that the appeals were posted and adjournments were granted at the request. Though the Court adjourned the matter by three weeks in July, 1999, the appeals thereafter were not posted at all. We find that the Registry had not taken steps to post the appeals, in spite of the direction of this Court, and equally we find that the appellant did not take steps for listing of the matter. The fact remains that the appeals have not been admitted. We heard the arguments fully and we admit both the appeals.
6. We also find from the order of the learned Judge that both the grounds, namely, action of infringement and action of passing off have been mixed up and on that ground, there would be no difficulty to set aside the order of the learned Judge and remit the matter for fresh consideration, however considering that the appeals have been pending considerably for a long time, we propose to dispose of the appeals on merits of the case and the arguments have been addressed on merits of the case.
7. We have already seen that the plaintiff filed the suit on the basis of action of infringement and action of passing off. Section 28 of the Trade and Merchandise Marks Act, 1958 (hereinafter referred to as 'the Trade-Marks Act') confers on the registered proprietor of a trade mark an exclusive right to use the trade mark in relation to the goods in respect of which the trade mark is registered and when the right of the registered proprietor is violated, the Act offers him protection by way of infringement. Section 29 deals with infringement and it, inter alia, deals with infringement of a trade, mark by a person who is not the registered owner, if he uses in the course of a trade mark which is identical with or deceptively similar to the registered trade mark. The appellant is, no doubt, the owner of a registered trade mark. Though it is submitted by the learned counsel for the respondents that the original registration stood in the name of Omega Louis Brandt & Frere S.A., Bienne, Switzerland, however, learned counsel for the appellant has produced before us necessary documents to show that for the change of proprietorship of the trade mark in the name of present plaintiff is Omega S.A. The second submission of the learned counsel for the respondents is that the appellant has not produced the certificate of registration and in the absence of the same, action for infringement does not He, however, we are unable to accept the submission as the counsel for the appellant has produced before us relevant entries made in the Trade Mark Journal to show that the trade mark has been registered in the name of the appellant and its validity is extended beyond 6.6.2000.
8. His next submission is that the appellant has not established that there is an infringement of trade mark of the appellant. We have already been that the appellant is the registered proprietor or the trade mark in relation to photo-electric cells, electric contact starting gate broken thread devices ; time recording registering and signalling apparatus and instruments ; electric control apparatus and instruments ; apparatus, instruments and devices for transmitting electrical oscillations and impulses ; electric starting pistols ; and photofinish and time recording photo-electric apparatus. The question that arises is whether the appellant has prima facie established that the expression, 'electric control apparatus and instruments' would encompass within itself the electric switches. No doubt, learned Judge has observed that the electric control apparatus is in general form, but he negatived the case of the appellant only on the ground that there is no material to show that the appellant is manufacturing electric switches and it is for the appellant to establish that by the use of the word, 'OMEGA' the respondents are passing off their goods as that of the appellant. However, the question in the case of infringement is not whether the respondents are passing off its goods, but the question is whether the mark used by the respondents is identical and deceptively similar to the registered trade mark of the appellant.
9. In the case of Wander Ltd. v. Antox India (P) Ltd., (1990) Supp. S.C.C. 727: 1991 PTC 1(SC), the Bench of three learned Judges of the Supreme Court considered the question of grant of interlocutory injunction in the case arising under the Copyright Act, and the Supreme Court has laid down the test as to when the Appellate Court can interfere in exercise of the discretion of the trial court or the learned single Judge. The law laid down by the Supreme Court is as under :-
"The appeals before the Division Bench were against the exercise of discretion by the Single Judge. In such appeals, the appellate Court will not interfere with the exercise of discretion of the court of first instance and substitute its own discretion except where the discretion has been shown to have been exercised arbitrarily, or capriciously or perversely or where the court had ignored the settled principles of law regulating grant or refusal of interlocutory injunctions. An appeal against exercise of dissection is said to be an appeal on principle. The appellate court will not reassess the material and seek to reach a conclusion different from the one reached by the court below if the one reached by that court was reasonably possible on the material. The appellate court would normally not be justified in interfering with the exercise of discretion under appeal solely on the ground that if it had considered the matter at the trial stage it would have come to a contrary conclusion. If the discretion has been exercise by the trial court reasonably and in a judicial manner the fact that the appellate court would have taken a different view may not justify interference with the trial court's exercise of discretion. After referring to these principles Gajendragadkar, J. in Printers (Mysore (P) Ltd. v. Pothan Joseph, said : (SCR p. 721) ".....These principles are well established, but as has been observed by Viscount Simon in Charles Osenton & Co. v. Jhonston, 1942 AC 130, "....the law as to the reversal by a court of appeal of an order made by a Judge below in the exercised of his discretion is well established, and any difficulty that arises is due only to the application of well settled principles in an individual case".
10. In S.M. Dyechem Ltd. v. Cabdury (India) Ltd., , the Supreme Court has laid down the principles applicable for grant of temporary injunction in Trade mark cases. The Supreme Court after referring to the decision of House of Lords, American Cyanamid v. Ethicon Ltd., (1975) I ALL ER 504 and other cases reported therein, referred to its own decision in Colgate Palmolive (India) Ltd. v. Hindustan Lever Ltd., and held that in trade mark cases, it is not necessary to go into the question of comparable strength of cases of either parties apart from balance of convenience. The law laid down by the Supreme Court is as under :-
"21. In U.K., Laddie, J. reconsidered the principle recently and explained American Cyanamid, (1975) I ALL ER 504 in his judgment in Series 5 Software Ltd. v. Clarke, (1996) 1 ALL ER 853 (Ch D). The learned Judge observed that in American Cyanamid (1975) I ALL ER 504 Lord Dioplock did not lay down that the relative strength of the case of each party need not be gone into. Thereafter, this Court in Palmolive case, has referred to Laddie, J.'s view and said that the view of Laddie, J. is correct and that American Cyanamid, (1975) I ALL ER 504 cannot be understand as having laid down anything inconsistent with the "old practice". We may also add that now the courts in England go into the question whether the plaintiff is likely or unlikely to win in the suit i.e., into the comparative strength of the case of the rival parties - apart from the question of balance of convenience. (See again Laddie, J. in Barclayss' Bank Inc. v. R.B.S. Advanta, 1998 RPC 307 where such a question is posed and where Series 5 Software, (1996) I ALL ER 853 (Ch D) was followed.) Therefore, in trade mark matters, it is now necessary to go into the question of "comparable strength" of the cases of either party, apart from balance of convenience. Point 4 is decided accordingly".
11. The Supreme Court has also held that it is for the plaintiff to prove that the essential features of its trade mark have been copied. The Supreme Court also held that it is not answer to a charge of infringement - as contrasted with the passing of action that the defendant's mark whilst including the plaintiff's mark includes the other matters also. It is not doubt true that by addition of something or by the addition of the whole name of the defendant, it is permissible for the defendant to show that the defendant has distinguished its goods from those of the plaintiff.
12. The plaintiff-appellant admittedly registered its trade mark and device and is using the trade mark 'OMEGA' in big letters. It is the case of the plaintiff that the registration has been done for photoelectric cells, electric contract starting gate broken thread devices, lime recording, registering and signalling apparatus and instruments, instruments, apparatus, instruments and devices for transmitting electrical oscillations and impulses, photo-finish and time recording photo-electric apparatus and all the goods fall under Clause 9. The name "OMEGA" is a well known trade mark in the market in the country and the figures furnished in the plaint show their extensive nature of business activity in the country. The plaintiff has also given particulars in the plaint regarding the huge expenditure incurred by it for advertisement of its goods with the trade mark 'OMEGA'.
13. The plaintiff-appellant admittedly is the owner of the registered trade mark and the trade mark, which is actually registered is in respect of the goods which have already been mentioned in the judgment. The question that arises is whether the expression 'electric control apparatus' would encompass the articles like electric switches as well. The case of the appellant is the switches would also fall within the meaning of electric control apparatus in instrument. She referred to the World Book Dictionary - Vol. 2 for the meaning of the expression 'switch' as under :-
3a. To connect or disconnect with an electric current by using a switch ; turn (an electric light, current, or the like, on or off);
She also referred to the World Book Encyclopedia E - Vol. 6 for understanding the expression 'electric switch' as an instrument. She also referred to the World Book Dictionary AR for the definition of the word 'switch' and the word 'switch' inter alia has been understood in the dictionary as under :-
"A device controls a machine".
She referred to the Concisa Oxford Dictionary Tenth Edition (Indian Edition) for the meaning of the word 'Control' at page 310, which is defined as under :-
Meaning of Control:-
1. The power to influence people's behaviour or the course of events the restriction of an activity, tendency or phenomenon.
2. A device by which machine is regulated.
3. The place where something is verified or from which an activity is directed.
4. Bridge a high card that will prevent the opponents from establishing a particular suit.
5. A person or thing used as a Standard of Comparison for checking the results of a survey or experiment.
6. A number of an intelligence organisation who personally directs the activities of a spy.
14. She referred to the same book for the meaning of the word 'switch', which is inter alia defined as under :-
Meaning of Switch ; Page 1449;
1. A device for making and breaking an electrical connection computing a program variable which activates or deactivates a function.
2. A change especially a radical one.
3. A slender, flexible, shoot cut from a tree.
4. A set of points on a railway track.
5. A tress of hair tied at one end, used in hairdressing to supplement natural hair.
1. Change in position, direction, or focus-exchange.
2. (switch something off/on turn an electrical device off (or on).
3. (switch off) cease to pay attention.
4. Archaic beat with or as if with a switch.
15. She also referred to the New Oxford Dictionary of English The World's Most Trusted Dictionaries for the meaning of the word 'control', which is defined as under
Meaning of Control; Page 400:
1. A switch or other device by which a machine is regulated the volume control.
She referred to the same book for the expression of the word 'switch' which is defined as under :-
Meaning of Switch ; Page 1877 ia. Device for making and breaking the connection in an electric circuit; the guard hit a switch and the gate swung open".
She also submitted that electric switch is a device, which controls the flow of electric current in a circuit and the expression electric control apparatus would cover the electric switch as well.
16. Mr. M.K. Rao, learned counsel, on the other hand, referred to the Wordsworth Dictionary of Science and Technology and submitted that electric switches cannot be regarded as electric control apparatus as switch opens and closes the electric circuit and the expression electric control apparatus has a technical meaning which refers to a sophisticated equipment or some automatic adjustment of the power level in the transmitter at a particular dynamic range and therefore the normal electric switches cannot be regarded as electric control apparatus. Learned counsel referred to the Wordsworth Dictionary of Science and Technology, where the expression 'control' has been defined as under :-
'Control':- (Elec. Eng.) General term for manual or automatic adjustment) usually by potentiometer, fader, or attenuator) of power level in a transmission within its dynamic range.
He also referred to the same book for the definition of the word 'switch' wherein the word 'switch' is defined ns under :-
'Switch':- (Elec. Eng.) Device for opening and closing an electric circuit.
17. Learned counsel also referred to the "International Classification of Goods and Services" wherein the electric control apparatus is treated as a separate item and the switches are treated as separate item though both fall under Clauses 9. Learned counsel submitted that in the classification of the goods made in the International Classification of Goods and Services, the switches and electric control apparatus are taken as two different items and he therefore submitted that the expression 'electric control apparatus' would not cover electric switches and the registered trade mark of the petitioner appellant does not cover electric switches.
18. In our view, the question whether the expression 'electric control apparatus' in the registered mark of the appellant would cover electric switches or not cannot be considered on the basis of the meaning of the 'switch' found in technical or other dictionary on the one hand and taking the switch on the other hand. In our view, the proper way to construe the clause found in the registered trade mark of the appellant is as to whether a commercial man, when he applies for a registered trade mark, would regard electric switches as falling within the expression of the electric control apparatus. We are unable to accept the submission of Mr. M.K. Rao that the expression electric control apparatus should be construed to cover only some sophisticated equipment, which has a tendency to control the electrical power at an automatic level and it would not cover switches. We are of the view that the expression has to be construed to include a simple apparatus which controls the flow of electricity either in the circular or opens the power circuit by operation of the electric switch.
19. Another test would be if the appellant has already been manufacturing the electric switches, whether the switches would fall in the expression 'electric control apparatus' and whether there will be any necessity for the plaintiff-appellant to approach the Registrar of Trade marks or for amendment of the trade mark to include the switches as well. In our view, had the plaintiff-appellant been manufacturing the switches right from the inception of the registration of its trade mark as it exists, the plaintiff could have prevented the third parties from claiming that the switches do not fall within the expression 'electric control apparatus'. We are of the view that the electric switches control the flow of electricity and it would be an electric control apparatus and the expression electric control apparatus does not exclude the ordinary electric switches. We are of the view that the expression 'electric control apparatus' would embrace the electric switches as well and it is impermissible to dissect each expression found in electric control apparatus separately and contend the switches are not controlling apparatus and fall outside the said class. The electric switch Controls the flow of electricity in a circuit and but for the switch, there would be unrestricted flow of electricity in a circuit. In other words, the expression is not confined to a device which regulates the flow, nor would it exclude a device which controls the flow of electricity in a circuit.
20. The crucial words found in Section 29 of the Act are 'uses in the course of a trade mark which is identical with, or deceptively similar to the trade mark, in relation to any goods in respect of which the trade mark is registered'. It is no doubt true that the expression, 'electric control apparatus and instruments' found in the registered trade mark of the plaintiff has to be construed in a strict manner to avoid the tendency of monopoly. We are of the view, the expression cannot be confined to mean only certain sophisticated electric apparatus and it is to be remembered that the trade mark was registered on 6.6.1951 and on the date of registration, the technology had not developed much to the extent to which it has now developed and we are of the view, on the date of registration, the expression would have included the electric switches as well. As already observed by us, had the plaintiff started manufacturing electric switches on the basis of the trade mark obtained by it, there would have been no difficult in holding that the electric switches would be electronic control apparatus and due to rapid technological advancement that has occurred in the field, there are some sophisticated items in the market and it does not mean that the electric switches would fall outside the scope of the expression, 'electric control apparatus'.
21. The Allahabad High Court in the case of Bata India Ltd. v. Pyare Lal & Co., was dealing with the case of infringement of trade mark. In that case, Bata Company filed the suit for permanent injunction restraining the defendants from using the trade mark 'Batafoam'. The plaintiff Bata Company was manufacturing shoes and rubber products and whereas the defendants were manufacturing foam materials and marketing their products with the trade mark. 'Batafoam'. Though the Allahabad High Court was dealing with the case of passing off, it considered Section 27 of the Act also and held that the name 'Bata' was well known in the market and the use of such name for foam material was likely to cause not only deception in the mind of ordinary customer but could also cause injury to the plaintiff company. The Court also held that the user of the name, 'Bata' to any product may give rise in the mind of unwary purchaser of average intelligence and imperfect recollection that it is a product by the plaintiff.
22. A similar view was also taken by the Bombay High Court in the case of Bajaj Electricals Ltd. v. Metals & Allied Products, (DB) where the Bombay High Court held that the trade mark of the plaintiff was widely advertised and gained wide reputation for a number of years and against the use of the name which is identical and similar to the trade mark of the plaintiff, the plaintiff would be entitled to injunction as prayed for.
23. In Kirloskar Diesel Recon Pvt. Ltd. v. Kirloskar, Proprietary Ltd., , the Bombay High Court considered the case of passing off where the plaintiff company was using the trade name, 'Kirloskar' for over a period of 50 years and acquired distinctiveness and goodwill in the word 'Kirloskar'. The Bombay High Court held that the focus has shifted from the external objective test of making comparison or activities of parties to the state of mind of public in deciding whether it would create confusion in the minds of the people and with the passage off time, some reputation has been acquired and the mark 'Kirloskar' would acquire a distinctive meaning and the plaintiff company would be entitled to injunction as prayed for.
24. The Supreme Court in Mahendra & Mahendra Paper Mills Ltd. v. Mahindra & Mahindra Ltd., held that the word, Mahindra has a reputation for a certain standard of goods and services and where there is likelihood and probability of creation of an impression of a connection of the defendant company with the plaintiff and the possibility of a prejudicial effect on plaintiff's business and trading activities, the plaintiff company would be entitled to an interim injunction. The Supreme Court was dealing with a case of passing off. The Supreme Court has quoted with approval the decision of the Bombay High Court in Sunder Parmanand Lalwani v. Caltex (India) Ltd., where the Bombay High Court held that a large number of persons saw and heard about the mark 'Caltex' in connection with the applicant's watches, they would be led to think that the watches were in some way connected with the opponents who were dealing in petrol and various oil products with the Caltex mark or they would at least wonder whether they were in any way connected with the opponents. The Supreme Court also noticed the decision of the Allahabad High Court in Bata India Ltd. v. Pyare Lal & Co., and the decision of the Bombay High Court in Kirloskar Diesel Recon (P) Ltd. v Kirloskar Proprietary Ltd., and held that where the name has acquired distinctiveness and people have come to associate the name with a certain standard of goods and services, any attempt by another person to use the name in business and trade circle is likely to and in probability will create an impression of a connection with the plaintiff company, the plaintiff company would be entitled to injunction as the user may effect the plaintiff prejudicially in its business and trading activities.
26. We also refer to the decision of the Punjab and Haryana High Court in Banga Watch Co. v. N.V. Philliphs, wherein the plaintiff company was manufacturing and selling large number of engineering goods with the trade mark 'Philips' and the trade mark, 'Philips' has become a household word and has acquired an envisable reputation in India and throughout the world, though the defendant company adopted the trade mark for its watches and clocks. The Punjab and Haryana High Court held that though the plaintiff company was the registered trade mark holder and the registration did not include watches and clocks, yet, the plaintiff was entitled to injunction on the ground that the plaintiff had acquired good-will on the trade mark, 'Philips' and it is not open to the defendant to take undue advantage of the trade mark of the plaintiff. There is no explanation also from the defendant for choosing the trade mark, Omega for marketing the switches and the motive can only be to take undue advantage of the trade mark, Omega for marketing the reproducts in the name, Omega.
27. A similar view was also taken by the Delhi High Court in Philip Morris Belgium S.A. v. Golden Tobacco Co. Ltd., AIR 1986 Delhi 145. The registration in that case was in respect of manufactured and unmanufactured tobacco and the defendant used the trade mark of the plaintiff on the cigarettes manufactured by it. The Court held that the plaintiff would be entitled to interim injunction. The Court also held that where there is an infringement of registered trade mark, the balance of convenience does not assume much importance and the plaintiff would be allowed the grant of temporary injunction.
28. This Court in an unreported decision in O.S.A. Nos. 101 and 102 of 1994 dated 22.7.1998, to which one of us was a party, has held that so long as the holder of the mark continue to manufacture the goods bearing the name and exploiting the mark and so long as the registration continues in his name, no other person has the right to use the mark in relation to those goods. This Court also held that the question whether a particular product falls under a given classification is a matter for decision primarily by the Registrar when he is asked to examine the application for registration of a mark. This Court also held that when the defendant is found to have infringed the trade mark and the delay is satisfactorily explained, the delay would certainly not disentitle the plaintiff in claiming the relief of injunction, assuming of course that the plaintiff has established the infringement. This Court held that the defendant would be able to avoid such an injunction only if the defendant is able to show that there has been acquiescence on the part of the plaintiff.
29. Mr. M.K. Rao, learned counsel for the respondents strongly relied upon the decision of the Supreme Court in the case of Vishnudas Trading v. Vazir Sultan Tobacco Co. Ltd., [1996 PTC (16)]. The case is distinguishable as it dealt with the question of registration and rectification of the entry found in the Trade Mark Register. The Supreme Court, while considering that case, held that the 'class' mentioned in the 4th Schedule may subsume or comprise a number of goods or articles which are separately identifiable and vendible and which are not goods of the same description as commonly understood in trade or in common parlance. The Supreme Court also held that so long as the registration of the trade mark continues, the owner would be entitled to claim exclusive use of the said brand name to all the articles made of tobacco coming under the said broad classification, manufactured tobacco. The Supreme Court was dealing with the case of registration of the trade mark and the question that arose before the Supreme Court was whether the appellant company would be entitled to the registration of the trade mark, 'Charminar' for its products. The Supreme Court held that the Trade Marks, Act has noted distinction between description of goods forming a genus and separate and distinctly identifiable goods under the genus in various sections other than Section 12(1) of the Trade Marks Act and so long as the registration is not rectified limiting the ambit of registration and confining the benefit of registration to the specific articles manufactured by the owner of the trade mark, it is not open to the respondent to contend that the expression should be confined to the goods already manufactured by the plaintiff. The decision, in our view, has no application to the facts of the case at all.
30. Learned counsel for the respondents also referred to the decision of the Supreme Court in the case of Ruston & Hornby Ltd. v. Z. Engineering Co., and the decision of this Court in Edrahim Currim and Sons v. Abdulla Sahib, AIR 1934 Madras 226. We have gone through the decisions and we hold that the decisions are not applicable. We hold that on the facts of the case there is infringement of the trade mark of the plaintiff and it is well settled by this Court in S.A.P. Balraj v. S.P.V. Nadar & Sons, that the validity of a registered trade mark cannot be canvassed in a suit for injunction resulting from an alleged infringement of trade mark. As held by the Supreme Court in N.R. Dongre and Ors. v. Whirlpool Corporation and Anr., , the question of temporary injunction can be decided on the basis of undisputed facts and materials which can be legitimately taken into account at the interlocutory stage.
31. Admittedly, the plaintiff is the owner of the registered trade mark. Though counsel for the respondents referred to the Trade Mark Journals wherein the expression, Omega has been used, we find that the user of the goods is with reference to different classes, namely, class No. 8 or other classes in respect of other articles. Learned counsel for the respondents also referred to the certificate of the Chartered Accountants dated 20.2.2003 relating to the sales turnover of the respondent company from 1.4.1994 to 31.3.1997 and 1.4.1997 to 31.3.2002. We have already held that when there is infringement of the trade mark, the balance of convenience does not assume much importance.
32. Learned counsel also submitted that the plaintiff is not entitles to injunction as the plaintiff has not taken any action after the letter from the counsel for the defendants. We are unable to accept the said submission. The plaintiff has issued the first notice on 10.4.1995 and on 10.5.1995 an interim reply was sent by the counsel for the defendants. On 3.7.1995, a reply was sent by the defendants and a rejoinder was sent by the plaintiff on 7.9.1995 for which a reply was sent by the defendants on 16.10.1995, followed by another letter dated 24.2.1996. The suit was filed before this Court on 29.11.1996. We hold that it is not a case of long delay and it is not a case of acquiescence. The decision of the Supreme Court in Power Control Appliances and Ors. v. Sumeet Machines Pvt. Ltd., is relevant where the Supreme Court held that the acquiescence is sitting by, when another is invading the rights and spending money on it and it is a course of conduct inconsistent with the claim for exclusive rights in a trade mark, trade name, etc. We are of the view that it is not a case of acquiescence and there is also no consent and the acquiescence must be such as to lead to the inference of a licence sufficient to create a new right in the defendant. Though there is some delay after the issue of reply notice by the counsel for the defendants, it cannot be stated that there was acquiescence by the plaintiff. As soon as the matter was decided against the plaintiff by the learned Single Judge, the plaintiff has preferred this appeal and the delay on the part of the Court in not listing the matter earlier in spite of specific direction of this Court cannot be attributed to the plaintiff. We are of the view that it is a case of infringement of the trade mark, the balance of convenience is immaterial.
33. Normally, as an appellate Court, we would not have interfered with the discretion exercised by the Learned Single Judge, however, we find that the learned Single Judge, after having made the observation that the electric control apparatus is in general form, rejected the case of the plaintiff on the ground that the plaintiff company is not manufacturing the switches. Learned Single Judge has proceeded on the basis that it is a case of passing off action. It is not a case of passing off, but the case of infringement of the trade mark. Learned Single Judge has not decided the question whether the electric control apparatus includes the switches, but proceeded on the basis that it may include switches and held that the plaintiff is not entitled to injunction as the plaintiff is not manufacturing switches. We hold that the approach adopted by the learned Single Judge is not correct. Since the discretion has been exercised on improper grounds, we are inclined to interfere.
34. Accordingly, the order of the learned Single Judge is set aside and the plaintiff would be entitled to interim injunction pending trial of the suit. We make it clear that the observations made earlier are only made for the purpose of deciding these appeals and would have no bearing on the final hearing of the suit. Since the suit is of the year 1997, we direct the Registry to list the suit for trial at an early date. The appeals stand allowed. No costs. Connected C.M.Ps. are closed.
ORDER These Appeals and C.M.Ps are coming on for orders on this day, in the presence of the aforesaid Advocates on eitherside the court made the following ORDER ;-
Counsel for the respondents requests that the operation of the order may be suspended for a period of one month to enable respondent to file an appeal. Accordingly, the operation of the order is stayed for a period of one month from today.