Bombay High Court
Balsara Hygiene Products Ltd. vs M/S. Aksaar Enterprises on 18 February, 1997
Author: K.K. Baam
Bench: K.K. Baam
JUDGMENT Smt. K.K. Baam, J.
1. Leave under Rules 147 and 148 of the High Court of Judicature at Bombay (O.S.) Rules, 1980 granted to the plaintiffs to take out notice of motion in terms of the draft notice of motion handed in. Motion returnable after four weeks. Shri Tulzapurkar waives service on behalf of the defendants.
2. The plaintiffs have filed this suit seeking an order of injunction restraining the defendants by themselves, their servants, agents, representatives, distributors, etc., from infringing the plaintiffs' registered trade mark "ODONIL" by manufacturing or marketing or offering for sale or advertising or displaying, directly or indirectly, or dealing in preparations, for purification of air and preparations for repelling inseets (dcodbrizers) or any other goods of the same description by adopting a word identical with and/or deceptively similar to the plaintiffs registered trade mark "ODONIL", in the suit as filed, the plaintiffs have also sought an order and injunction, damages for infringement and other Consequential 'reliefs'.
3. In support of the notice of motion taken out by the plaintiffs, it is the case of the plaintiffs that the defendants are manufacturing and selling air-purifier and anti-moth preparations under the name and style "ODOFIL" with a view to cause wrongful gain to the defendants and wrongful loss to the plaintiffs.
4. It is the case of the plaintiffs that the word "ODOFIL" is usually, structurally and phonetically similar to the product of the plaintiffs which is "ODONIL". The same is a case of infringement. The Statutory rights of the plaintiffs are violated and, therefore, the plaintiffs are entitled to an order of injunction and other reliefs.
5. It is also the case of the plaintiffs that they came to know that the defendants were selling this product in 1992. They immediately gave notice to the defendants on receipt of which the defendants desisted from selling this product till 1995 when once again this product was introduced in the market and, therefore, the plaintiffs have filed this suit.
6. On behalf of the defendants, it is urged that so far as the defendants are concerned, they are the honest and concurrent user of this product since the year 1983 when the plaintiffs have acquiesced to the product being sold by the defendants and, therefore, the plaintiffs are not entitled to any reliefs at this stage. The defendants in support of their contention have also relied upon advertisements of their product in the Magazine like "Buy From India - 1983-84" which reflects the product "Odofil" room freshner and air purifier. Reliance has also been placed upon the advertisement in the Bombay Manuf. Directory - 1983", where there is a full quarter page advertisement in respect of this product. Reliance has also been placed upon this advertisement to support their contention that they have been selling this product since 1983. The plaintiffs were aware of the same and that the plaintiffs have at this stage sought to file this suit and obtain an order of injunction. It is also the case of the defendants that so far as their product is concerned, the get-up is not similar to the product sold by the plaintiffs and, therefore, there is no cause of creating any confusion in the mind of the public. It is also urged on behalf of the defendants that the word "ODOFIL" is coined by them from two words "odour" and "Fill" to signify to fill the room with good odour. However, this contention has been challenged on behalf of the plaintiffs as it is the case of the plaintiff's that so far as the word "odour" is concerned, the same does not signify scent but it signifies foul smell and, therefore, the defendants contention as regards the coining of the word is of no basis.
7. From the arguments advanced on behalf of the plaintiffs and the defendants and the various authorities cited, which I do not wish to refer to at this stage, it is apparent that so far as the defendants are concerned, the defendants have been using this name "ODOFIL" since 1983-84. Assuming for the sake of argument that the plaintiffs came to know of this product being circulated in the market for sale in 1992, even then except for giving a notice, the plaintiffs did not care to adopt any proceedings, far as the plaintiffs are concerned, at this ad-interim stage, it is not open for the plaintiffs to contend that the defendants should be restrained by an order of injunction as there has been a gross delay on the part of the plaintiffs in taking out the proceedings before the Court. By of this delay, the plaintiffs have allowed the defendants to expend money over a considerable period of time in building up their business. At this stage, it is not open for the plaintiffs to seek injunction restraining the defendants from carrying on the business.
8. Therefore, so far as the plaintiffs are concerned, I am of the opinion that the plaintiffs have failed to make out any case at the ad-interim stage for the grant of any reliefs. Hence ad-interim reliefs refused.