Delhi High Court
Metropol India (P) Ltd. vs Praveen Industries India on 29 August, 1997
Equivalent citations: 1997(43)DRJ279
Author: K.S. Gupta
Bench: K.S. Gupta
JUDGMENT Devinder Gupta, J.
(1) These two appeals arise out of same order passed on 18.1.1996 in Ia 14791/91 in Suit No.3877/91 by the learned Single Judge of this Court partly allowing the plaintiff's application under Order 39 Rules 1 & 2 of the Code of Civil Procedure restraining the defendant from manufacturing, selling and offering for sale or dealing with and selling their product under the trade mark "CLEANZO" or any other mark or marks deceptively similar to the plaintiff's registered trade mark Cleanzo bearing No.335807 and also from using label similar to that of the plaintiff's label on the cartons of the products.
(2) FAO(OS) 48/96 is by the plaintiff M/s Metropol India (P) Ltd. and FAO(OS) 98/96 is by the defendant Praveen Kumar Sabharwal, Sole Proprietor of M/s Praveen Industries India . Plaintiff is aggrieved by the last part of the impugned order, which has permitted the defendant to manufacture and sell its product under the name, style and trade mark Praveen Cleanzo with the rider that they will not right the word Cleanzo in isolation or in conjunction with 'Praveen' in an Oval Shape or in other shape, which may be deceptively similar to the manner in which the plaintiff is writing its trade mark. Defendant's appeal is against that part of the order which has restrained it from manufacturing, selling and offering for sale or dealing with or selling their product under the trade mark Cleanzo or any other mark or marks similar to the plaintiff's registered trade mark CLEANZO.
(3) Learned counsel for the parties were heard and suit record has been perused.
(4) PLAINTIFF'S case is on the allegations that it is a leading manufacturer of Cleansing agents, detergents etc. and is proprietor of the trade mark CLEANZO. The same is registered in Class 3 under No.335807 under the Trade and Merchandise Act, 1958, (hereinafter referred to as 'the Act') which is renewed upto 20th April, 1989. It is alleged that the plaintiff and its oredecessirs in interest had been using the trade mark Cleanzo since 1947. Plaintiff also claims to be the owner of copyright bearing registration No.A-11008/74 under the Copyright Act and in respect of the art work depicted on label titled CLEANZO. Copyright is claimed to be registered on 15.4.1974 in the name of Metro pole Corporation India and the said Copyright is claimed to have been assigned in the name of the plaintiff on 10.7.1991.
(5) It is claimed that in March, 1991 the plaintiff noticed that the defendant had brought in the market a Cleanser under the mark Cleanzo and that the product was being sold in tins of identical size, background, colour, scheme, lay out and get up with same pictorial devices, though in a changed arrangement and order. Even direction for use were copied verbatim. On a complaint being filed by the plaintiff, the premises of the defendant and its two dealers were raided. Offending goods were seized. Defendant along with the said dealers were arrested. The case is stated to be still pending in a criminal court. It is alleged that the defendant again started selling the same goods in the same town with the same wrapper and also filed an application for registration of the word marked 'Cleanzo' in Class 5 and filed an application under Sections 32, 42 and 56 of the Act seeking rectification of the plaintiff's trade mark CLEANZO. Adoption by the defendant of the offending trade mark and the offending colour schemes, label, get up etc. is to cash upon the plaintiff's name, reputation, goodwill and long standing and amounts to passing of its goods by the defendant as that of the plaintiff's.
(6) In this background permanent injunction is claimed in the suit and simultaneously an application under Order 39 Rules 1 & 2 of the Code of Civil Procedure was moved for interim relief.
(7) DEFENDANT'S opposition to plaintiff's suit is on the ground that it is a prior user and first adapter of the trade mark Cleanzo in respect of Naphtha Deodorant and Cleaner, which is alleged to have been adopted in 1947 with the pictorial device by late Badri Nath Sabharwal, father of the defendant. It is alleged that since 1947 the said mark is being used by the defendant continuously and uninterruptedly and that the said trade mark was never used by the plaintiff since 1947, as alleged. It is also stated that on account of misrepresentation and fraud the plaintiff got the trade mark registered in its name and a petition has already been filed by the defendant for removal of the said entry from the register of trade marks. Plaintiff's title to sue the defendant is under challenge on the ground that the goods of the plaintiff falls in Class (3) of the Fourth Schedule of the Trade and Merchandise Rules, 1959 whereas defendant's goods fall in Class 5 of the Fourth Schedule of the same Rules and on account of pendency of its petition being Co 11/90 the plaintiff's suit is liable to be stayed under the provisions of Section 111 of the Act.
(8) Learned Single Judge negatived the defendant's preliminary objection that because of the pendency of petition (CO 11/90) filed by the defendant for removal of the entry of the plaintiff from the register of trade marks, no interim injunction could be granted. It was held that civil court continues to have jurisdiction to pass interim interlocutory order on the application of the plaintiff in terms of sub-section (5) of Section 111 of the Act. Learned Single Judge also found the plaintiff admittedly to be the registered user of trade mark Cleanzo, which registration in part A is valid upto 20.4.1999. Comparing the label of the plaintiff's product with that of the defendant, learned Single Judge observed that admittedly there is no difference except that the photographs thereon have been rearranged. Even the word "Cleanzo" has been written in oval shape on both the labels. It cannot be a co-incidence that the photographs on the label and the manner in which they have been shown be the same. A bare perusal thereof shows that one label is a copy of the other. On reference to the material placed by the parties on record, learned Single Judge observed that there is no hesitation to prima facie conclude that it is the plaintiff who has used the mark Cleanzo for its product for the first time and the mark of defendant is an imitation of the same. It was also observed that on the basis of the material prima facie The defendant had been using the label and mark openly since 1990. Holding the plaintiff to be the prior user and also the registered owner of mark Cleanzo since 1949-50 it was held that prima facie the defendant is a person having started using the same much later than the user of the plaintiff and much later than its registration in the name of the plaintiff. It was observed that there was no material on record that why and in what manner the defendant had shown on its label, for its product, the same photographs and the word Cleanzo, which is not a word available in the dictionary. In this background, the plaintiff was held entitled to the temporary injunction. The argument on behalf of the defendant as regards delay in filing the suit was negatived observing that it was from 1990 that the defendant had openly started using similar mark and there was no bar in granting injunction.
(9) Learned counsel for the defendant urged that the goods of the plaintiff are different in as much as the same fall in separate class and as such no injunction ought to have been granted. It was also urged that mark Cleanzo is not registered in plaintiff's favour in 1949-50 but was registered much later due to mis-representation and fraud for which rectification petition was pending and no injunction ought to have been granted. Despite direction from the Court the plaintiff had not produced original bill books and other documents, copies of which had been placed on record. The record produced by the plaintiff was fabricated and moreover after the injunction had been granted by the learned Single Judge, the defendant had discontinued use of the word Cleanzo and had come up with a new label. For the new label also the plaintiff had moved an application under Order 39 Rules 1 & 2 of the Code (i.e. Ia 2119/96) which was rejected, as such, the relief claimed by the plaintiff in its appeal cannot be granted in as much as the order passed in Ia 2119/96 has remained unchallenged by the plaintiff. It was also contended that the plaintiff at the most had registration for the mark Cleanzo and not for the colour scheme, get up, lay out and arrangement of features, as depicted in the labels for which no injunction could have been granted in its favour as a matter of right. Plaintiff's entire case was based upon mis-representation. In the criminal complaint the plaintiff had alleged that that it had been using the mark for the last fifteen years whereas longer user is claimed in the suit. It was argued that the defendant's trade mark Parveen Cleanzo with Parveen as suffix was sufficient to distinguish its product.Therefore, there was no deception or confusion in the mark. It was also urged that pendency of petition for rectification was sufficient for stay of the suit for which no injunction normally ought to have been granted.
(10) Learned counsel for the plaintiff refuting the submissions made on behalf of the defendant, vehemently contended that the plaintiff was entitled to injunction restraining the defendant even from using word Cleanzo in any form. The new wrapper, which has been brought with suffix as Praveen was nothing but an attempt to create confusion, which would be a real possibility if regard is had to the control which manufacturers and traders exercise over the choice that consumers make during purchase of consumer goods. A dishonest manufacturer in collusion with dishonest retailer is likely to pass off Praveen Cleanzo as Cleanzo and, thus, the whole object of granting injunction partially would be defeated. The impugned order as such requires modification by restraining the defendant from using trade mark Cleanzo in any form whatsoever.
(11) The discretion exercised by learned Single Judge while deciding the application under Order 39 Rules 1 & 2 of the Code of Civil Procedure will not be liable to be interfered with by the appellate court. The appellate court is not expected to substitute its own discretion except where the discretion is shown to have been exercised arbitrarily, capriciously or perversely or where it is shown that the learned Single Judge has ignored the settled principles of law regulating grant or refusal of interlocutory injunction. In Wander Ltd. and another v. Antox India Private Ltd., 1990 (Supp) Scc 727, it was held that an appeal against exercise of discretion is said to be an appeal on principle. Appellate Court will not re-assess 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 view on the material before it. The appellate Court would in normal circumstances not be justified in interferring 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. Reiterating the view taken in The Printers (Mysore) Private Ltd. v. Pothan Joseph, it was held that if the discretion has been exercised 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. In the light of the above settled proposition of law that the appeals as preferred by the parties under Order 43 Rule 1 of the Code of Civil Procedure will have to be dealt with and decided.
(12) Trade mark Cleanzo is alleged to have been adopted in 1947 by Kedar Nath Malhotra. The mark was registered as a trade mark No.131595 in Class 3 dated 14.11.1947 for cleaning agents. The trade mark is alleged to have been acquired by Metropol Corporation, partnership firm in the year 1958. In 1975 the plaintiff Company is alleged to have been formed and taken over all its assets and liabilities. Registration of the earlier trade mark lapsed and in 1978 a fresh registration was sought, which was allowed by trade mark No.335807 on 20.4.1978 in Class 3 in respect of cleaning preparations and cleaning agents for the word CLEANZO. This trade mark in plaintiff's favour stands renewed upto the year 1999. These facts are borne on record on the basis of material, which have remained unrebutted. The plaintiff is shown to have advertised its product in Hindustan Times of 26.9.1958 for the trade mark Cleanzo and is also shown to have marketed the product through various invoices from 1958 onwards. A Test Certificate dated 27.12.1952 issued by the Government Test House, Alipur, Calcutta under the Ministry of Works, Production of Supply, Government of India also prima facie establishes that cleaning material with trade mark Cleanzo was exclusively used by the Railways. Legal proceedings certificate has also been produced.
(13) The stand of the defendant in written statement that trade mark Cleanzo or cleanzo for the first time was adopted in 1947 with pictorial device of late Badri Nath Sabharwal is not substantiated on any material on record. The defendant's version that the mark has been in use since 1947 appears to be self-contradictory in the light of the material produced by the defendant on record, namely, copy of the defendant's application dated 11.4.1990 for registration. The user is shown therein from 1950 onwards. There is no material available on record which might even lead to a prima facie conclusion that the defendant ever used the word "Cleanzo" in any form prior to the year 1990. Copies of the bills, which are in Urdu, which led learned Single Judge to make his observations that the defendant appears to have been using the mark Parveen Cleanzo in or about 1955 are not at all sufficient to even come to a prima facie conclusion at this stage in support of defendant's version in the light of overwhelming evidence which has been produced by the plaintiff on record and accepted by the learned Single Judge. These are neither authentic, nor such pieces of evidence genuineness of which at this stage may be termed as unimpeachable. To the contrary the evidence adduced by the plaintiff at this stage has to be termed as highly reliable and authentic which is in the shape of Test Certificate issued by an agency of the Government of India. Newspaper advertisements and invoices. The invoices produced by the plaintiff are from 1958 onwards. Copies of income tax assessment orders produced are from 1959-60 onwards. Sales tax registration certificate is of the year 1953. Plaintiff's explanation for not producing records prior to 1958 is that the user prior thereto was by its predecessor from whom registration No.131595 was acquired. This explanation is plausible one, which deserves acceptance. Plaintiff's explanation as regards the complaint filed before the D.C.P. (Crimes), Delhi Police also deserves acceptance wherein it is stated that the plaintiff has been using the label for 15 years. Such a statement has to be seen in the light of the fact that the copyright was registered in 1974. It is explained that the whole purpose of using the term 15 years before the D.C.P. Crimes was that the copyright of the plaintiff gained statutory recognition only in 1975 and it had been in force only for the last 15 years at the time of filing of the complaint before the D.C.P. (Crime).
(14) Trade mark Cleanzo was registered in the name of the plaintiff's predecessor in 1949, which is evident from the extract from the trade mark Journal No.65 at Page 1726. Application for registration was filed on 14.11.1947. Registration was wide enough to cover cleaning, polishing and abrasive preparations.
(15) The contention of the learned counsel for the defendant that inspection of the entire original record was not given by the plaintiff despite directions of the learned Single Judge is also not substantiated from record. Record does suggest that inspection was given by the plaintiff to the defendant of all bill books in original from 1960 onwards. According to the plaintiff, the bill Books prior to 1960 were not available since as per the provisions of Sections 147 and 149 of the Income Tax Act (As amended on 1.4.1989) Income Tax Authorities require the record of a period of maximum 10 years to be maintained. Despite that the plaintiff, exercising great care and caution, maintained record for over 33 years. Cash Sales Bills are hand-written whereas Credit Sales Bills relating to Government Departments are typed one for which sufficient explanation was given by the plaintiff and the learned Single Judge rightly placed reliance upon the plaintiff's document to come to a prima facie conclusion of its prior user of the trade mark.
(16) The contention of the learned counsel for the defendant that plaintiff's prayer for grant of further injunction in Ia 2119/96 was declined by the learned Single Judge, which order has not been challenged and for that reason its appeal is not maintainable is also of no force. Plaintiffs filed the appeal against the impugned order dated 19.1.1996 on 30.1.1996. Application under 39 Rules 1 & 2 of the Code as filed subsequently on 29.2.1996, since the plaintiff felt aggrieved by the new container, which had been brought out by defendant after the impugned order had been passed on 19.1.1996. The plaintiff also filed an application under Order 39 Rules 2A (in Ia 2314/96) on 6.3.1996. Since appeal had been preferred prior in point of time, there is no question of any estoppel coming in plaintiff's way in not continuing with its appeal in as much as there has been no intentional abandonment of its right by the plaintiff to continue with this appeal merely by an act of moving an application under Order 39 Rules 1 & 2 of the Code. Estoppel would come into operation only when there is an intentional abandonment of a known right. The plaintiff, aggrieved by the last part of the impugned order, rightly had filed the appeal on 30.1.1996, which was still pending. It was during the pendency of the appeal that the learned Single Judge declined to pass any order on a subsequent application moved under Order 39 Rules 1 & 2. The mere fact that no order was passed by the learned Single Judge on the said application cannot deprive the plaintiff from continuing to agitate the said appeal.
(17) There is no denial of the fact that registration of the plaintiff's trade mark Cleanzo is in Class 3 in respect of cleaning preparations and cleaning agents. In Class 3 item No.C-1111 refers to cleaning parquet floors (preparations for) and Item C-1117 refers to cleaning preparations whereas defendant's goods, according to the stand taken by it falls in Class 5 i.e. deodorant. The contention was that the defendant's goods are different and do not fall in the same Class and are not under the same description. What is the effect of such registration of cleaning preparation and cleaning agents in Class 3, when according to the defendant its goods do not fall in Class 3 but in Class 5 as deodorant? This argument on behalf of the defendant does not appear to be of much substance, in as much as, the classification of goods is irrelevant for determining similarity of goods. Defendant has described its goods as Naphtha Deodorant cleaner. Such goods are nothing but cleaning preparations and cleaning agents, which would be clear and evident from the description given by defendant on its container, the broad features of which are: i) beneath word Cleanzo, the defendant described as a "marvelous cleaner; ii) the product underneath the trade mark, is again described as a "marvelous cleaner; (iii) It is also described as : leaves the cleaned surface shining; (iv) Title says: "Use safely to clean; and (v) the directions also state that one tea cup is adequate for regular cleaning of toilets, floorings etc."
(18) PLAINTIFF'S trade mark registration covers abroad description of goods, namely, cleaning preparation and cleaning agents. Looking at the product of both parties, there is no manner of doubt that both the goods are intended to clean floors, toilets, doors, windows etc. Defendant on its label has also similar to the plaintiff displayed a public urinal, bath-room and a kitchen, which is consistent with the description of the product, namely, cleaning preparation and cleaning agents. In this background the classification of goods is wholly irrelevant, particularly in an action for passing off where the goods may be the same, similar or different. Otherwise also, as per the International classification of goods, 'cleaning preparation' and 'deodorant', both fall in Class 3. Defendant's product is not just a deodorant but a deodorant soap intended to clean toilets, floors etc. (19) PLAINTIFF'S suit is not only for infringement of trade mark but is also an action for passing off.
(20) Cotton L.J. of the Court of Appeal in the matter of Australian Wine Importers' Trade Mark (6 Reports of Patent, Design and Trade Mark Cases 311) held: "NOW, for the purpose of deciding whether two sets of goods are the same description, when they are not the same goods, we must not, as it appears to me, lay too much stress on the classification of the framers of the rules. If you come to look at that classification, you will find goods of the same description, in one sense, in different classes; and you will find goods of different descriptions in the same class."
(21) Both the goods, namely, that of the plaintiff and defendant are similar. They have same nature, purpose and trading channels.
(22) After the impugned order was passed, the defendant has come up with a fresh label by using of word 'PRAVEEN' as pre-fix to Cleanzo. Looking at the label, the shape, and colour scheme are the same. There is no manner of doubt that it is a clear attempt to create confusion. In Kaviraj Pandit Durga Dutt Sharma v. Navaratna Pharmaceutical Laboratories, , it was held that an action for passing off is a common law remedy being in substance an action for deceit, i.e., passing off by a person of his own goods as those of another. The use by the defendant of the trade mark of the plaintiff is not essential in an action for passing off, but it is the sine qua non in an action for infringement. The suit brought out by the plaintiff complains both, namely, invasion of statutory rights under Section 21 of the Act in respect of registered trade mark and also of passing off by the use of same mark. The Supreme Court in Kaviraj Pandit Durga Dutt's case observed: "THE other ground of objection that the findings are inconsistent really proceeds on an error in appreciating the basic differences between the causes of action and right to relief in suits for passing off and for infringement of a registered trade mark and in equating the essentials of a passing off action with those in respect of an action complaining of an infringement of a registered trade mark. We have already pointed out that the suit by the respondent complained both of an invasion of a statutory right under S.21 in respect of a registered trade mark and also of a passing off by the use of the same mark. The finding in favour of the appellant to which the learned Counsel drew our attention was based upon dissimilarity of the packing in which the goods of the two parties were vended, the difference in the physical appearance of the two packets by reason of the variation in their colour and other features and their general get-up together with the circumstance that the name and address of the manufactory of the appellant was prominently displayed on his packets and these features were all set out for negativing the respondent's claim that the appellant had passed off his goods as those of the respondent. These matters which are of the essence of the cause of action for relief on the ground of passing off play but a limited role in an action for infringement of a registered trade mark by the registered proprietor who has a statutory right to that mark and who has a statutory remedy in the event of the use by another of that mark or a colourable imitation thereof. While 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, that is not the gist of an action for infringement. The action for 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" (Vide S.21 of the Act). 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, made out that the use of the defendant's mark is likely to deceive, but where the similarity between the plaintiff's and the defendant's mark is likely to deceive, but where the similarity between the plaintiff's 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 plaintiff's 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."
(23) When once the use by the defendant of the mark which is claimed to infringe the plaintiff's mark is shown to be "in the course of trade", the question whether there has been an infringement is to be decided by comparison of the two marks. Where the two marks are identical no further questions arise; for then the infringement is made out. When the two marks are not identical, the plaintiff would have to establish that the mark used by the defendant so nearly resembles the plaintiff's registered trade mark as is likely to deceive or cause confusion and in relation to goods in respect of which it si registered (Vide S.21). A point has sometimes been raised as to whether the words "or cause confusion" introduce any element which is not already covered by the words "likely to deceive" and it has some times been answered by saying that is is merely an extension of the earlier test and does not add very materially to the concept indicated by the earlier words "likely to deceive". But this apart, as the question arises in an action for infringement the onus would be on the plaintiff to establish that the trademark used by the defendant in the course of trade of the goods in respect of which his mark is registered, is deceptively similar. This has necessarily to be ascertained by a comparison of the two marks - the degree of resemblance which is necessary to exist to cause deception not being capable of definition by laying down objective standards. The persons who would be deceived are, of course, the purchasers of the goods and it is the likelihood of their being deceived that is the subject of consideration. The resemblance may be phonetic, visual or in the basic idea represented by the plaintiff's mark. The purpose of the comparison is for determining whether the essential features of the plaintiff's trade mark are to be found in that used by the defendant. The identification of the essential features of the mark is in essence a question of fact that depends on the judgment of the Court based on the evidence led before it as regards the usage of the trade. It should, however, be borne in mind that the object of the enquiry n ultimate analysis is whether the mark used by the defendant as a whole is deceptively similar to that of the registered mark of the plaintiff."
(24) In Ruston and Hornby Ltd. v. Zamindara Engineering Co., , the Supreme Court distinguished between infringement action and a passing off action saying that in an action for infringement where the defendant's trade mark is identical with the plaintiff's mark, the court will not interfere whether the infringement is such as is likely to deceive or cause confusion. But where the alleged infringement consists of using not the exact mark or the Registered mark, but somewhat similar to it. The test of infringement is the same as in an action for passing off. In other words, the test is of likelihood of confusion or deception arising from similarity of marks both in infringement and passing off actions.
(25) Learned Single Judge applying the test to determine as to when a trade mark is deceptively similar to another as held in Parley Products (P) Ltd. v. J.P. & Co. Mysore, , on the basis of the material on record, held that the mark and label of defendant bear such a similarity to the registered mark and label of the plaintiff that it is likely to mislead the consumer to accept good of the one as of the other, if offered to him. Therefore, in the light of the material on record and the ratio of the three decisions aforementioned learned Single Judge was right in granting the injunction as prayed for to the extent it was granted.
(26) However, learned Single Judge was not justified in giving a clarification that defendant was entitled to trade its product under the trade mark Praveen Cleanzo. The use of the very word Cleanzo whether with pre-fix Praveen or otherwise definitely is likely to have an effect of creating confusion in relation to cleansing goods and is also likely to deceive the the purchasers of the goods. The very act of the defendant in the year 1990 in trying to bring its product by use of the word Cleanzo prima facie appears to be a dishonest act to trade upon the plaintiff's goodwill. The appeal Court in Slazenger & Sons v. Feltham & Co., 6 Rpc 531 observed: "ONE must exercise one's common sense, and, if you are driven to the conclusion that what is intended to be done is to deceive if possible, I do not think it is stretching the imagination very much to credit the man with occasional success or possible success. Why should we be astute to say that he cannot succeed in doing that which he is straining every nerve to do?"
(27) In another decision Munday v. Carey, 22 Rpc 273 it was held that "...where you see dishonesty, then even though the similarity were less than it is here, you ought, I think, to pay great attention to the items of similarity, and less to the items of dissimilarity."
(28) In Harrods Limited v. Harrodian School Limited, 1996 Rpc 697 it was held that the deception is the gist of the tort of passing off and it is not necessary for a plaintiff to establish that the defendant consciously intended to deceive the public if that is the probable result of his conduct, nevertheless, the question why the defendant chose to adopt a particular name or get up is always highly relevant. It is a question which calls for an answer.
(29) Learned Single Judge, thus, in the impugned order rightly remarked that it was for the defendant to have shown as to how and in what manner it had shown the said photographs on the label of the product and how the word Cleanzo had been coined, since the word Cleanzo is not available in the dictionary. Prima facie the plaintiff was the prior user of the mark. The defendant started using the same much later. There being no answer to the question, the clarification ought not to have been issued. In these circumstances, the plaintiff's appeal deserves to be allowed and that of the defendant's deserves rejection.
(30) Consequently Fao 48/96 is allowed and Fao 98/96 is dismissed with costs. Resultantly the impugned order is modified. The defendant is further restrained from using, in any manner, the trademark Cleanzo in any form whatsoever on its product.