IMPORTANT POINT
Infringement of copyright and passing off – Acquiescence is a defence available in action for infringement of copyright – While deciding application for a temporary injunction in a suit for passing off action, statements of accounts signed by Chartered Accountant of plaintiff indicating expenses incurred on advertisement and promotion and figures of sales may constitute a material which can be considered for examining whether a prima facie case was made out by appellant-plaintiff.

JUDGMENT

Abhay S. Oka, J. -

FACTUAL ASPECTS

1. The appellant, who is the original plaintiff has preferred this appeal for challenging the impugned judgment and order dated 23rd June 2021 passed by the learned Single Judge of the High Court of Judicature at Bombay (Aurangabad Bench). By the impugned judgment, the High Court has stayed the execution and operation of the judgment and decree dated 24th May 2021 passed by the learned District Judge-1, Osmanabad, in a suit filed by the appellant.

2. The appellant-plaintiff is engaged in selling country liquor with the label "Tango Punch". The respondent defendant is engaged in selling country liquor with the label "Two Punch Premium". The case of the appellant is that it has a copyright in the artistic label displayed on the bottles of country liquor sold by it. The appellant claimed permanent injunction restraining the respondent from infringing copyright in its artistic label either by reproducing the label or the substantial part of it in any material form by printing, publishing or using the label or any other work, which is an imitation or reproduction of the appellants label or substantial part thereof. In the suit, the appellant also prayed for a decree of injunction restraining the respondent from manufacturing, selling, offering for sale, advertising, or otherwise dealing in country liquor having the appellants trade mark label or any deceptively similar trademark label so as to pass off the country liquor of the respondent as and for the well-known country liquor of the appellant. After a complete trial, the learned District Judge decreed the suit by passing the following decree:

"1.Suit is decreed with costs.

2. Defendant or anybody claiming through it, are hereby permanently restrained by an order of perpetual injunction from infringing the Plaintiff's copyright in its artistic labels Annexure- 'A', 'A-1' (Exh.66), 'B' and 'Bl' (Exh.71) by reproducing the same or substantial part thereof in material form or by printing, publishing or using the impugned label Annexure-C' (Exh.74) or any other work which is an imitation or reproduction of the Plaintiffs above mentioned artistic labels or substantial part thereof.

3. Defendant or anybody claiming through it, are hereby further restrained by an order of perpetual injunction from manufacturing, selling, offering for sale, advertising or otherwise dealing in country liquor bearing the trade mark label Annexure-'C'. (Exh.74) or any other trade mark label deceptively similar to the Plaintiffs trade mark label Annexure- 'A in Exh.66 and 'B' in Exh. 7l so as to pass off or enable others to pass off.

4. Defendant to pay to the Plaintiff within a month from this day, a sum of Rs.1,00,000/- by way of damages for the infringement and passing off.

5. Defendant is directed to deliver to the Plaintiff for destruction the labels, wrappers, goods, dies and literature, books and printing material and things being the impugned label Annexure-'C' (Exh.74), within one month and Plaintiff shall pass receipt/acknowledgement thereof."

3. After considering the oral and documentary evidence, the learned Trial Judge held that the entries in the register of copyrights in respect of the label "Tango Punch" showed that the appellant was the owner of copyright in the said label. The learned Trial Judge held that the labels used by the respondent on the liquor bottles sold by the respondent were deceptively similar to the labels used by the appellant. The learned Trial Judge further held that the respondent, by reproducing a substantial part of the label of the appellant has infringed the copyright of the appellant. It was also held that the appellant has proved that the respondent was using a label by substantially reproducing the contents of the label used by the appellant. Hence, the Trial Court held that the appellant was entitled to a permanent injunction on both the counts, viz., infringement of copyright and passing-off.

4. Being aggrieved by the said dec