Himachal Pradesh High Court
Amrit Banaspati Company Ltd. vs Suraj Industries Ltd. on 7 September, 1994
Equivalent citations: AIR1996HP70
ORDER
1. The plaintiffs-petitioner is a public limited Company, having its registered office at Ghaziabad, Uttar Pradesh, and a factory at Rajpura (Punjab). The petitioners are manufacturing and selling Vanaspati oil with the trade mark "GAGAN" with a flower like device white printed on dark blue background since the year 1974 in tins, HDP containers and pouches. The defendants-respondent, according to the petitioners, have started, as per the plaintiff, with mala fide and illegal designs using the mark deceptively similar to the trade mark of the plaintiffs-petitioner and the defendants-respondent are using a flower like device and the word "ANGAN", being used by the defendant is deceptively similar to the trade name "GAGAN" of the plaintiffs. The plaintiffs-petitioner have filed Suit No. 151 of 1993 wherein the following reliefs have been prayed for:
"(i) A decree and an order of permanent injunction restraining the defendants, their servants, agents, representatives and dealers from manufacturing, selling, offering for sale, directly or indirectly dealing in Vanaspati Oil. in blue pouches with the name "ANGAN" and a flower like device as are colourable imitation of the plaintiffs' Vanaspati Oii pouches bearing trade mark "GAGAN" with flower like device on blue pouches giving the impression that the defendants'Vanaspati Oil pouches with impugned trade mark with flower like device is either coming from the plaintiffs' source of manufacture or in any manner sold or offered for sale having the impugned trade mark with the plaintiffs and its business.
(ii) That an order for the destruction of pouches of Vanaspat Oil bearing impugned mark Annexure-P6 and for destruction of its pouches and other material concerning the impugned trade mark.
(iii) That an order for rendition of accounts/accounts of profit of the defendants with regard to manufacture and sale of Vanaspati Oil purchased with the impugned trade mark be passed and a decree be passed in favour of the plaintiffs and against the defendants for an amount of rupees two lacs along with interest at 18 per cent, per annum.
(iv) That such other orders as this Court may deem just, fit and proper in the facts and circumstances of the case.
(v) Costs of the proceedings be also awarded in favour of the plaintiffs against the defendants."
2. In the aforesaid suit the plaintiffs have preferred the present application under Order 39, Rules 1 and 2 read with Section 151 of the Code of Civil Procedure. It has been pleaded in the application that the plaintiffs' trade mark was registered with the Registrar of Trade Mark under the provisions of Trade and Merchandise Marks Act, 1958, under No. 301001 dated 26th November, 1974 in respect of Vanaspati Oil and the same has been renewed from time to time and the registration was still valid. It was also pleaded that the plaintiffs' trade mark was also registered with the Registrar of Copyright under the provisions of Copyright Act, under ' Registration No. 125/7/75, dated 10th February, 1975 and the registration of the same was still valid. According to the plaintiffs-petitioner, their trade mark by virtue of its tong established usage, since the year 1974, has acquired a valuable good-will and reputation in the trade so much so that the use of any identical deceptively similar trade mark was liable t,o cause confusion and deception and to give an impression that the Vanaspati Oil thus sold was either those of the plaintiffs' manufacture or was, in any way, connected with the plaintiffs or then business amounting to passing off. The petitioners alleged that the monthly sale of their products was about 2000 tonnes of Vanaspati in pouches.
3. It has also been pleaded that the defendant-respondents, with a mala fide" and illegal designs have wrongly started using the mark deceptively similar to the trade mark of the plaintiffs. The defendant-respondents were using a flower like device and the word "ANGAN", being used by the defendants is deceptively similar to the trade mark "GAGAN" of the plaintiffs. According to the plaintiffs, this was being done by the defendants in order to earn profits in an illegal manner. It has also been pleaded that the impugned mark recently adopted by the defendants is colourable imitation and was liable to cause confusion in the minds of the purchasing public, thus causing harm to the plaintiffs' trade and financial gain. It has also been averred that the pouch product, which the defendants were manufacturing, selling and offering for sale were identical with that of the plaintiffs'. According to the plaintiffs-petitioner, the Vanaspati in blue pouches was purchased by commoners, by illiterate villagers, particularly by agriculturists coming from villages, which class of purchasers was unwarry and mostly uneducated and illiterate. Purchasers were bound to be confused on account of deceptive similarity between the two marks while placing an order for purchase as both trade marks phonetically sound also the same.
4. The plaintiffs-petitioner pleaded they have a prima facie case in their favour and they would suffer irreparable loss and injury in case the respondents carry on their trade under the impugned trade mark. It is also averred that the balance of convenience also lay in favour of the plaintiff-petitioners and against the defendant-respondents.
5. On the basis of the aforementioned averments made in the application, the plaintiffs prayed that pending disposal of the suit, ad interim injunction be granted in favour of the plaintiff-petitioners and against the defendant-respondents restraining them, their servants, agents, representatives and dealers from manufacturing, selling, offering for sale, directly or indirectly, dealings in Vanaspati Oil in pouches with name "ANGAN" with flower like device printed in white on a dark blue background as are imitation of the plaintiffs' Vanaspati Oil pouches bearing the trade mark "GAGAN" with flower like device printed in white over a dark blue background giving an impression that the defendants' Vanaspati Oil in the blue pouches, with impugned trade mark and device of a flower are either coming from the plaintiffs' source of manufacture or in any manner, sold, offered for sale having a connection with the plaintiffs' and its business.
6. This application for the grant of ad interim injunction has been contested on behalf of the respondents.
7. In their reply, they have taken certain preliminary objections. It has been pleaded that the suit, as framed, was not maintainable under the law and the same has been filed only to harass the defendants in its business. According to the defendant-respondents, the suit as well as the application of the plaintiffs was not maintainable as the particular trade mark "ANGAN" of the defendants was totally different to that of the plaintiff and both the words were very well known having dictionary meaning of daily use by general public and having different and distinct meanings and, therefore, there was no chance of passing off or deception. Otherwise also, according to the defendant-respondents, no instance of passing off or deception has ever occurred. Accordig to the defendants, a device of 'rising sun'which was the logo of the defendants-company on its pauch, has been taken from the main part of the corporate name 'SURAJ' and which was totally different and distinct to the alleged flower like device of the plaintiffs in all respects. It was also pleaded that the defendants' pouch was approved by the Directorate of Vanaspati, Vegetable Oils and Fats, and as such the defendants were well within its right to use the said pouch and as per the requirement of law the defendants submitted its art work of pouch for approval on 4-8-1993 to the said Directorate of Vanaspati and who, in turn, on 18-8-1993 approved the said pouch. The pouch of the defendants bear the descriptive matter and other matter, appearing on the pouch of the defendants have been taken from pouch "APNA" belonging to its promoter company "SURAJ VANASPATI LTD." It was also pleaded that the plaintiffs had printed a slogan "KHAO GAGAN RAHO MAGAN" on its pouch whereas the defendants have no slogan on its pouch. The defendants were boldly printing the source of its origin, that is, manufactured by SURAJ INDUSTRIES LTD., Plot No. 1, Industrial Area, Phase-Ill, Sansarpur Terrace, District Kangra, Himachal Pradesh and, as such, the same could not be considered as that of the plaintiffs or its origin or that in some manner it was connected with the plaintiffs. It was further averred that the colour of the pouch was as per practice in the trade as well as in accordance with the provisions of the Prevention of Food Adulteration Act, 1954. It was also averred that there could not be an exclusive right in the blue, yellow etc. colour of the film/ pouches and many manufacturers were using either the blue or yellow colour for their pouches and some of the pouches of various other manufacturers were filed in the proceedings by the defendant-respondents. It has been very specifically pleaded that no monopoly can be granted in the colour of the pouches and further very limited colours of food grade were permitted under the provisions of law. The respondents have detailed in reply the names of manufacturers who were using such like trade marks/pouches. The names of 28 manufacturers in this behalf have 'been pointed out in the reply submitted by the respondents. According to the defendant-respondent, the adoption of the trade mark "ANGAN" was, before announcement by. them in the month of May 1993, applied for registration on 7-5-1993 and a news item appeared in the Vishv Vyapar on 29-7-1993 and accordingly, the suit as well as the application suffered from delay and laches and acquiescence and the plaintiffs were estopped from challenging the use of trade mark "ANGAN". According to the defendants, the plaintiffs were aware of the use of trade mark "ANGAN" as the plaintiffs were member of the Indian Vanaspati Producer's Association (IVPA), which published the annual report for the year 1992-93 along with a list of Vanaspati Oil manufacturers along with their trade marks, including the name of the defendants and hs trade mark "ANGAN" and its annual report was sent to all the members of IVPA. It was also pleaded that the plaintiffs have asked for rendition of accounts and damages, therefore, interim injunction could not be allowed, as prayed for.
8. On merits also, the respondents did not admit the claim of the plaintiffs-applicant and have, in a way, reiterated the allegations referred to above. The defendant-respondents prayed that the suit as well as the application for the grant of temporary injunction has been based upon false and incorrect pleas, it deserved dismissal.
9. I have heard the learned counsel for the parties and have also scrutinized the pleadings, affidavits and other material brought on record by the parties.
10. There is absolutely no dispute to the proposition that in an application, preferred under Order 39, Rules 1 and 2, C.P.C., the plaintiff-applicant first of all has to establish a prima facies case, which means the prima facie existence of a right and its infringement by the opposite party. The plaintiff, as such, would be entitled to interlocutory injunction in case the petitioner satisfies the Court that there is a serious question to be tried at the hearing and that, on the facts before it, there is a probability that the plaintiff is entitled to relief. But to establish a prima facie case, is not the sole criteria governing the issue of temporary injunction. It has to be seen whether the balance of convenience is in favour of the plaintiff and whether the plaintiff would suffer an irreparable injury if his prayer for temporary injunction is not allowed. The object of granting injunction is to preserve status quo, which means the status of the party over the subject-matter of the suit as it existed at the time of filing of the suit.
11. The present suit, in a way, touches the various provisions of the Trade and Merchandise Marks Act, 1958, and in order to dispose of the application of the present nature the various provisions in the aforesaid Act have to be kept in mind.
12. The present case, as the pleadings reflected, pertains to a label and pouch, which was registered as a trade mark the violation of which by the defendants has been alleged in the plaint. There is practically no pleadings that the defendant-respondents had infringed any trade mark registered by the plaintiffs. On the other hand, in a way, it has been conceded that the plaintiffs' cause of action was based on an action of passing-off alone.
13. An action for passing-off is a common law remedy, being in substance an action for deceit, meaning thereby that a person passing-off his goods in a manner as if those were of others. In the present case, as per pleadings, the defendants were selling "ANGAN VANASPATI" in pouches which were similar to the pouches of "GAGAN VANASPATI", being manufactured by the plaintiffs-applicant and the defend ant-respondents have been alleged to be selling it under their own brand in a deceitful manner so as to project its own brand to be that of the brand of the plaintiffs.
14. Definitely the plaintiffs-applicant will have legal right in case the defendant-respondents have been behaving in that manner, as referred to above. In case prima facie there is material on record to come to that conclusion the defendant-respondent can certainly be restrained but if there exists no prima facie case the natural consequence is to disallow the prayer for the grant of ad interim injunction.
15. In order to appreciate the arguments advanced on behalf of the parties by their respective learned counsel, the law cited by them, if taken note of, will make the appreciation of the matter in this case to be convenient and easier.
16. In Corn Products Refining Co. v. Shangrila Food Products Ltd., AIR I960 SC 142, the following observations are relevant which are reproduced as under (Paras 17, 18 and 20):
"The question whether the two marks are likely to give rise to confusion or not is a question of first impression. It is for the Court to decide that question. English cases proceeding on the English way of pronouncing an English word by English men, which it not always the same, may not be of much assistance in our country in deciding questions of phonetic similarity. It is well recognised that in deciding a question of similarity between the two marks, the marks have to be considered as a whole.
Again, in deciding the question of similarity between the two marks we have to approach it from the point of view of a man of average in intelligence and of imperfect recollection. To such a man the overall structural and phonetic similarity and the similarity of the idea in the two marks is reasonably likely to cause a confusion between them.
The absolute identity of the two competing marks or their close resemblance is only one of the tests for determining the question of likelihood of deception or confusion. Trade connection between different goods is another such test. Ex hypothesi, this latter test applies only when the goods are different. These tests are independent tests. There is no reason why the test of trade connection between different goods should not apply where the competing marks closely resemble each other just as much as it applies where the competing marks are identical. Whether by applying these tests in a particular case the conclusion that there is likelihood of deception or confusion should be arrived at would depend on all the the facts of the case."
17. The case referred to above arose out of an application made under the Trade Marks Act for registration of a trade mark and the respondent in this case has applied for registration of the trade mark "Gluvita" used with reference to biscuits manufacured by him and the appellant had been using the registered trade mark "Glucovita" with reference to his glucose with vitamins, opposed the application under Section 8(a) of the Trade Marks Act. In this case it was held that the commodities concerned were so connected as to make confusion or deception likely in view of the similarity of the two trade marks. Apart from the syllable 'co' in the appellant's mark, the two marks were identical. It was held that the respondents' mark could not be registered.
18. In Kaviraj Pandit Durga Dull Sharma v. Navratna Pharmaceutical Laboratories, AIR 1965 SC 980, the difference between an action of passing-off and an action for infringement of trade mark has been in very clear terms explained:
"An action for passing-off is a Common Law remedy being in substance an action for deceit, that is, a passing-off by a person of his own goods as those of another. But that is not the gist of an action for infringement. The action of infringement is a statutory remedy conferred on the registered proprietor of a registered trade mark for the vindication of "the exclusive right to the use of the trade mark in relation to those goods. The use by the defendant of the trade mark of the plaintiff is not essential in an action for passing-off, but is the sine qua non in the case of an action for infringement. No doubt, where the evidence in respect of passing-off consists merely of the colourable use of a registered trade mark, the essential features of both the actions might coincide in the sense that what would be a colourable imitation of a trade mark in a passing-off action would also be such in an action for infringement of the same trade mark. But there the correspondence between the two ceases. In an action for infringement the plaintiff must,' no doubt, make out that the use of the defendant's mark is likely to deceive but where the similarity between the plaintiffs and the defendant's mark is so close either visually, phonetically or otherwise and the Court reaches the conclusion that there is an imitation, no further evidence is required to establish that the plaintiffs rights are violated. Expressed in another way, if the essential features of the trade mark of the plaintiff have been adopted by the defendant, the fact that the get up, packing and other writing or marks on the goods or on the packets in which he offers his goods for sale show marked differences, or indicate clearly a trade origin different from that of the registered proprietor of the mark would be immaterial; whereas in the case of passing-off, the defendant may escape liability if he can show that the added matter is sufficient to distinguish his goods from those of the plaintiff."
19. In F. Hoffimann-La Roche and Co. Ltd. v. Geoffrey Manners and Co. Private Ltd., AIR 1970 SC 2062, the comparison of trade marks "DROPOVIT" and "PROTO-VIT" was before the Court. It was held that the two Trade marks were not deceitfully similar. The relevant observations made in this case were as under (at p. 2065 of AIR):
"The marks must be compared as a whole. It is not right to take a portion of the word and say that because that portion of the word differs from the corresponding portion of the word in the other case there is no sufficient similarity to cause confusion. The true test is whether the totality of the proposed trade mark is such that it is likely to cause deception or confusion or mistake in the minds of persons accustomed to the existing trade mark."
20. Parle Products (P) Ltd. v. J. P. & Co. Mysore, AIR 1972 SC 1359, has also been cited wherein it has been held that in order to come to a conclusion whether one mark was deceitfully similar to the other, the broad and essential factors of the two are to be considered and they should not be placed side by side to find out if there are any differences in the design and if so, whether they are of such character as to prevent one design from being mistaken for the other. It was further held that it would be enough if the impugned mark bears such an overall similarity to the registered mark as would be likely to mislead a person usually dealing with one to accept the other, if offered to him and with that background it was of no use to note on how many points there is similarity and in how many others there is absence of it.
21. Bawa Masala Company v. Gulzari Lal Lajpat Rai, ILR (1974) 2 Delhi 760, has explained the principles to be kept in mind by the Court while deciding an action of infringement of a trade mark and passing-off. Those principles have been referred as under:
"(a) The plaintiff must prove infringement.
(b) The plaintiff must prove passing-off by producing witnesses who have actually been deceived or that what the defendant is doing is calculated to deceive.
(c) The disclaimer in a registration of trade mark has an important bearing inasmuch as the disclaimed portion of the mark has to be ignored while considering infringement.
(d) The plaintiff must prove that the defendant's mark is likely to deceive particularly vis-a-vis the essential features.
(e) In an action for passing off in spite of similarity in essential features defendant may escape liability if he can show that the added matter is sufficient to distinguish his goods from those of the plaintiff.
(f) The question of infringement or passing off has-to be decided by comparison of the two marks.
(g) Irrespective of what witnesses may say, it is ultimately the Court which has to come to its own conclusion by seeing the marks in suit and decide whether an unwary purchaser is likely to be deceived. By unwary purchaser is not meant a negligent purchaser but a purchaser who uses due diligence and know what he is going to purchase but may not have a very clear recollection of what he had purchased earlier or what had been advertised.
(h) If there is some specific mark which has been advertised or popularised which has to be seen in purchasing a party's goods then that would be the most essential features to be considered in an action for infringement or even passing off."
22. Khemraj Shrikrishnadass v. M/s. Garg & Co., AIR 1975 Delhi 130, also distinguishes between a suit for infringement of trade mark and passing off for an action in a manner which would be helpful to appreciate the real controversy between the parties in the present petition also. The relevant observations made in the above case are as under (at p. 134 of AIR):
"Action for infringement of a trade mark or copyright is a statutory remedy and in pursuing it, the plaintiff must prove his title and exclusive right to use the trade mark (or work) in question and further establish that the defendant has infringed the same by identical or deceptively similar or colourable imitation of it. In such a case, if otherwise established, it is no valid defence on the part of the defendant that it has been sufficiently indicated on the infringing goods that they are not of the plaintiff but of the defendant. On the other hand, action for passing off is a common law remedy and its gist is deceit and not infringement of a right to exclusive user. In such an action, the plaintiff may, if so advised, prove his title to the exclusive use of the trade mark (or copyright) but he need not do so. What is, however, essential for the plaintiff to establish are: (I) distinctive features; (2) substantial user, and (3) wide reputation. The law casts an obligation on the defendant not to pass off his own goods (or work) as if they had been produced by the plaintiff and the Court will enforce the obligation. In such a case, the defendant can escape the liability by showing that his goods (or work) though similar, distinctly indicate that they do not originate from the plaintiff but have been produced by the defendant. Element of deceit may exist in both kinds of action, but it is of the essence of the passing off action. Actual deception is not required to be proved, but reasonable ground for apprehending deception must exist."
23. In M/s. Johann A. Wuifingv. Chemical Industrial and Pharmaceutical Laboratories Limited, AIR 1984 Bombay 281, the matter before the Court was whether word "Ciplamina" was deceitfully similar to the word "Complamina". It was held that there was no deceptive similarity between the two marks, and no person, be he layman of average intelligence and imperfect recollection or a medical practitioner, is likely to confuse one for the other. It was also observed that the visual impression of the two words is not conducive to any such confession and it was so not by placing the words side by side or by their microscopic examination but from their purely visual test seen as a whole on first impression. The salient feature is the distinctive "COM" and the distinctive "CIP" and not the words following them. The two words, as such, were held not having visual resemblance.
24. The learned counsel for the parties cited other reported and unreported precedents, the detail of which is not required to be referred here on the sole ground that each case has been disposed of appreciating the facts and circumstances in that particular case. In so far as the proposition of law is concerned, that remains the same and the applicability of the provisions of law have to be made available with the context of the facts of an individual case.
25. The circumstances revealed from the material on record have to be appreciated at this stage in the light of the law laid down by the Supreme Court and various High Courts, as referred to above, in order to find out whether the plantiffs-applicants are legally entitled to the relief prayed for in the present petition.
26. Normally, in an action for passing off, the relief of injunction is not to be granted at the interim stage because still there has to be a trial but again in exceptional cases such an interim relief can definitely be made available to the aggrieved party in case prima facie it is established on record that the two products are so similar in appearance that there was absolutely no way of avoiding the grant of interim injunction.
27. The parties have brought on record certain documents which consisted of some letters, alleged to have been written by the consumers and some affidavits whereby prima facie case for an action of passing-off has been tried to be set up.
28. The plaintiffs have brought on record some letters written to the Sales Manager, Amrit Banaspati Company, Rajpura, or to the Manager, Amrit Banaspati Company (plaintiffs-Company) whereby the consumers have brought to the notice of the plaintiffs concern that "ANGAN" vanaspati ghee, when purchsed by them, was not found of good quality as compared to "GAGAN". These letters from the consumers are six in numbers. All these letters except one (An-nexure-P16) are undated. These letters are accompanied by some cash memos. Two cash memos are undated.
29. The first letter Annexue-P12 on record, is from one Gopal who informed the plaintiffs' Sales Manager that he had asked the shop-keeper to give him a pouch of GAGAN and he took that to his home where he used the ghee for cooking and after cooking a strange taste was given by it and when he examined the pouch he was surprised to note that it was not GAGAN pouch but it was of ANGAN and its look and presence was just like GAGAN.
30. In Annexure-P13 one Surinder Kumar wrote that he went to purchase one packet of GAGAN but the shop-keeper gave him a packet of ANGAN of the same colour which on use was found to be of sub-standard.
31. Annexure-P14 was a letter from one Jadgish Chand. Annexure-P15, another letter, was from one Tilak Raj. Another letter Annexure P16 was from Rajinder Kr. Wadhwan and Annexure-P17 was a letter from one Madan Lal. The details of these letters may not be referred here but the fact remains that almost in all the letters the consumers informed that they went to purchase a packet of GAGAN but instead a packet of ANGAN of the same colour and design was given to them which was found to be of sub-standard as there was no IS1 mark thereon; One of the consumers informed through his letter that GAGAN was copied by ANGAN and it was being sold in the market in much quantity. Letter Ex. P16 appeared to have been written by some literate person in English. It recorded that some days back the writer of the letter went to purchase some household articles from the market and demanded one Kg pouch of GAGAN but the very retail shop-keeper had handed over to him a similar packing of ANGAN which the consumer could not recognize at the shop and took the same to his house. He further informed that after using it he found ANGAN Vanaspati to be of inferior quality.
32. The aforesaid letters produced on behalf of the plaintiffs do not at all prima facie establish the case of the plaintiffs to be that of passing-off. It may be referred here, at the first instance, that the contents of these letters have not been put by way of affidavits by the consumers concerned. Affidavits in that behalf if submitted by the relevant consumers could make it evidence, to be appreciated at this stage even prima facie. A private document, which does not carry any legal presumption attached to it, even at this stage cannot be appreciated to make out a prima facie case in favour of the plaintiffs. Otherwise also, alt these letters appeared to have been brought on record only to show that the vegetable ghee of the plaintiffs-Company in pouches was better in quality than the ANGAN vegetable ghee. I think this is not the subject-matter of the suit, to be appreciated prima facie at this stage. There is not a single letter through which any consumer informed that he was deceived to see ANGAN pouch to be that of GAGAN, having similarity in both the pouches. None of the consumers says so. None of the consumers returned the pouch of ANGAN purchased by them as they did not require that commodity but wanted to purchase GAGAN and instead by some deceitful means they were sold ANGAN pouches. It is not so the intention of the letters brought on record on behalf of the consumers by the plaintiffs.
33. On the other hand the defendants have brought on record affidavits of S/Shri P. C. Singla, proprietor of M/s. Singla Provision Store, the Mall Solan, Surinder Sood, 36/3 Anaj Mandi, Shimla, Mahesh Kumar, 36/18 Anaj Mandi Shimla, Ajay Gupta resident of Solan, Suresh Chand Aggarwal, resident of Shimla, Sukhvinder Singh, wholesale Vanaspati dealer, Cinema Road, Mandi, and Darshan Singh, proprietor of retail fair price shop, Mandi, Himachal Pradesh. All these deponents, on solemn affirmation, deposed that GAGAN and ANGAN Ghee are totally different to each other and the deponents never confused in distinguishing the two trade marks GAGAN and ANGAN which are pronounced differently as also different visually.
34. There is no doubt that the parties have tried to bring on record certain letters and affidavits of some educated people. There is not a single instance brought on record of an uneducated villager as, according to trie-plaintiffs, the villagers were the main consumers of these pouches. It may be pointed out here that in order to find the distinctive features between the two pouches the consumers' point of view has to be appreciated even prima facie. It has been argued on behalf of the plaintiffs that the consumers of the GAGAN vegetable ghee in pouches were illiterate persons hailing from rural areas and for them there would not be any distinctive feature for differentiation if two pouches are placed before them. I think such an inference, at this stage of the suit, is not called for at all, Firstly, whatever documents have been brought on record, they do not reflect the impression of uneducated illiterate people having a rural background and, secondly, this aspect of the matter cannot be lost sight of that after 1947 even in this hilly area of the country the consumer has become conscious of his right, conscious of his demand and conscious of the supply which is being made to him. A rural person of the year 1950 or so cannot be compared with the rural person of 1993-94. In Himachal Pradesh the education has been fast spreading and, as per the latest census report, the overall literacy has been found to be above sixty per cent. With that background, even prima facie, it cannot be said that the construction of the pouch of the vegetable oil of the defendants was almost similar to the pouch of GAGAN ghee and by that similarity the consumers could be easily deceived.
35. When two pouches are placed for a comparison, prima facie they cannot be said to be of similar nature except for the colour of the two pouches which is the same. The patent points of difference, which appear at the first sight between the two pouches, can be described as under:
(i) The word "ANGAN" and the word "GAGAN" sound distinctly;
(ii) "ANGAN" means courtyard while "GAGAN" means the sky;
(iii) The manner in which these two words have been written on the pouches in English and Hindi also do not bear any similarity as it can prima facie even be adjudged as under:
^^GaGaN** ^^xxu** ^^ANGAN** ^^vkaxu**
(iv) Letter 'A' in both the pouches has not been written in similar manner. In "ANGAN" capital 'A' is used while capital 'A' is not used in "GaGaN" but it is used as 'a'.
(v) There is a specific message to the people on "GaGaN" pouches which has been written in Hindi:
"KHAO GaGaN, RAHO MAGAN"
(vi) The impression of 'sun' is very clear on the pouch of ANGAN while on the pouch of GaGaN the impression cannot be called as the 'sun' but it appears to be of some petals of a flower, or a 'Chakra'.
(vii) In GaGaN pouch the ISI mark is there which is absent in ANGAN pouch.
(viii) The letter ^x*used in ANGAN is altogether distinct from the letter ^x* used in GAGAN.
(ix) Apart from the aforesaid distinctive features, which are visible to the naked eye,' and which can be noticed by a common man the other features which an educated person can note are also present on the two pouches.
36. Simply because the colour of the two pouches was dark blue and the writings on those pouches are in white colour, will not make both the pouches to be of similar nature, even prima facie. In so far as the use of this blue colour is there, it is not prohibited. The defendants have brought on record samples of various pouches of this dark blue colour and of light blue colour on record, being used by other concerns.
37. The plaintiffs have registered the trade mark of "GaGaN" vanaspati, being packed in tins and there is no registered trade mark pertaining to the pouch packing, as is evident from Annexure-P5, the certificate issued by the Registrar of Trade Marks on 27th August, 1977, under Section 23(2) of the Trade and Merchandise Marks Act, 1958, renewed from time to time.
38. At this stage the learned counsel for the defendants has referred Section 27 of the aforesaid Act wherein it has been provided that no person shall be entitled to institute any proceeding to prevent, or to recover damages for, the infringement of an unregistered trade mark. On the basis of this provision it has been argued that no action of the present nature shall lie against the present defendants as Section 27(1) bars such an action. I think Sub-section (2) of Section 27 of the aforesaid. Act is the answer to the aforesaid query.
39. Section 27(2) of the Trade and Merchandise Marks Act, 1958, reads as under:
"(2) Nothing in this Act shall be deemed to affect rights of action against any person for passing-off goods as goods of another person or the remedies in respect thereof."
40. The plaintiffs have claimed the right, on the basis of the aforesaid provision of law, which does not stand legally prohibited.
41. On the basis of the aforesaid discussion, first of all the plaintiffs have not been able to prove prima facie case in their favour for an action based on passing-off goods as the goods of another. In case the injunction, prayed for, is granted it will be the defendants who would be put to irreparable injury inasmuch as without there being any prima facie case in favour of the plaintiffs, the defendants are likely to suffer loss in their income which they are deriving from the sale of those pouches of ANGAN ghee. Balance of convenience in such circumstances would not be in favour of the plaintiffs at all.
42. In view of the foregoing reasons, the present petition fails and the prayer for the grant of temporary injunction and other interim relief's asked for by the plaintiffs through the present petition are not legally available to them at this stage and that too oh ', the basis of the pleadings, affidavits and other documents brought on record. The petition is, accordingly, dismissed with costs which are assessed at Rs.3,000/- (Rupees three thousand).
43. The observations made hereinabove will not, in any manner, affect the parties' case which is still to be tried on merits.