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2.1. It is also stated by the appellants (original plaintiffs) that their trade mark RANGOLI was registered in the year 1990 and the same has been extended or renewed from time to time.

2.2. The original defendants are trying to pass off the goods Agarbattis (Essence sticks) by making/using similarly deceptive trade mark. The label used by the defendants is RANGILI. The plaintiffs have exclusive right to use the label RANGOLI and the word RANGILI is deceptively similar looking to the label used by the original defendants. Both the words RANGOLI and RANGILI are of similar colour, size-wise, also there is similarity, in words RANGOLI and RANGILI and apparently customers will not be able to make a difference between to packets of RANGOLI and RANGILI Agarbatti (Essence stick).

2.3. Few years before, the original defendants were also using the said label of the original plaintiffs RANGOLI. Therefore, a criminal complaint was filed. A panchnama was drawn and as per the said panchnama, the defendants were manufacturing Agarbattis with an outer label of RANGILI, but when the said packets were opened, from the said packet, 10 or 12 small packets of RANGOLI agarbattis were found. Thus, ostensibly, they were using the word RANGILI on a wrapper of a bigger packet, but, inside the said bigger packet, there were small packets of Agarbatti having label of RANGOLI agarbatti. RANGOLI is a trade mark of the original plaintiffs. Ultimately, the defendants stopped using label RANGOLI.

ARGUMENTS:

3. It is contended by the learned advocate for the appellants (original plaintiffs) that the plaintiffs are having a registered trade mark RANGOLI in English, Hindi, in label, in box label. They are manufacturing Agarbattis (Essence sticks) in the name and style of RANGOLI since the year 1978. They have adopted trade mark RANGOLI in respect of their product since 1984. The said trade mark is registered in the year 1990 and it has been renewed/extended from time to time. The original defendants are using label SAI RANGILI. Looking to the label used by the original defendants, it is visually and phonetically similar and deceptive and, therefore, the same is an act of passing off as well as breach of trade mark and copyright. It is further submitted by the learned advocate for the appellants that if one or more of the essential features of the label is used by others, there is an infringement of the trade mark. In the facts of the present case, it is submitted by the learned advocate for the appellants that the word RANGOLI is an essential feature of the label used by the original plaintiffs. They have also given their figures of sale of all these Agarbattis. They ran into lacs of rupees. The original defendants have started manufacturing of RANGILI Agarbattis and looking to the Hindi version of RANGOLI in Devnagri script and looking to the Hindi version of the word RANGILI used by the original defendants, the label used by the defendants is deceptively similar, phonetically as well as visually. It is also submitted by the learned advocate for the appellants that on earlier occasion also, a criminal complaint was filed against the defendants as they were using the trade mark of the original plaintiffs. A panchnama was also drawn at the relevant time, by the police at the site of manufacturing of the original defendants and it was found that bigger size packets of Agarbattis manufactured by the defendants, though they were using the label RANGILI Agarbatti and when bigger size packets were opened, there were small size of packets of RANGOLI agarbattis. Thus, the defendants were using the trade mark of the plaintiffs. Because of the criminal complaint, ultimately this practice of using trade mark RANGOLI was stopped by the original defendants. It is also submitted by the learned advocate for the appellants that whenever there is a prima facie case in favour of the original defendants, in a trade mark case, stay ought to be granted by the trial court because infringement of trade mark causes irreparable loss to the original plaintiffs which cannot be compensated in terms of money. The learned advocate for the appellants (original plaintiffs) have relied upon the following decisions:

Thus, even if the plaintiff is unable to institute a civil suit against other persons, who are using trade mark, suit for infringement of trade mark can be filed by the plaintiffs against defendants if the defendant is infringing the trade mark of the plaintiff.

(x) Previously also, original defendants were using exactly the similar mark RANGOLI which is a registered trade mark of the original plaintiffs. A criminal case was instituted by the original plaintiffs, where the police had drawn a panchnama of factory premises of defendants, in pursuance of the investigation to be carried out in the said case. The said panchnama is the part and parcel of the trial court's record. Looking to the said panchnama, it appears that the original defendants were using bigger packets which contained one dozen small packets of Agarbatti. On the outer cover of the bigger size packet, they were using the word SAI RANGILI, whereas upon opening of the said bigger packet, police found out that there were 12 small size packets. They all were RANGOLI Agarbattis. Thus, the defendants were apparently using on outer side of the cover the word SAI RANGILI, whereas inside therein, there were 12 packets of Agarbattis of RANGOLI. RANGOLI is a trade mark of the original plaintiffs. These facts have been recorded in the panchnama made on 2nd October, 2003 by the Police Inspector, Naranpura police station, in connection with the offence registered with Naranpura police station bearing Cr. No. II/3295 of 2003 for the offences under Section 19 of the Trade Marks Act, as well as for the offences punishable under Sections 103, 104 and 105 of the Trade Marks Act as well as for the offence under Copy Rights Act. It is submitted by the learned Counsel for the original defendants that they have now stopped using the mark RANGOLI for label and selling of their Agarbattis (essence sticks).