The registration of a trademark gives the owner of the trademark the exclusive right to use the trademark and prevents others from using a similar trademark that is likely to deceive the public.

SANJEEVA ROW NAYUDU, J.

( 1 ) THIS appeal is directed against the judgment and order of the District Judge, Kurnool in I. A. No. 299 of 1957 in O. S. No. 4 of 1957 on the file of the District Court. Kurnool, refusing to grant an injunction restraining the defendants from continuing to make use of the label on their beedies which they have been all along using. The learned District judge held that the grant of a temporary injunction would result in giving the plaintiff undue advantage over the defendants and that if ultimately the plaintiff had to succeed in the suit, he would be compensated by damages. This is a most extraordinary conclusion to come to on an application for an injunction to restrain the defendants from taking use of a trade mark which was likely to deceive the public into thinking that that trade mark was that of the plaintiff. If the reasoning of the learned District Judge were to he accepted, then there could be no injunction at all in any case of violation of a trade mark. The simple point that requires to be considered in this case in deciding whether or not a temporary injunction should issue pending the disposal of the suit is. whether the ring label with which the beedies of the defendants are wrapped is likely to deceive an ordinary person who is in the habit of smoking beedies. Once the court is satisfied that the label put forward by the defendants is a colorable imitation or is substantially similar so as to give an impression that the wrapper on the defendants beedies is the same or similar to that of the plaintiffs and consequently an ordinary member of the public using the beedies in the annual course is likely to mistake the one for the other, then there is sufficient justification for re-straining the defendants from continuing to make use of that label. `

( 2 ) THE learned District Judge made much of the fact that the mark of the elephant appears on both the labels. But so far as the elephant was concerned, the plaintiff had disclaimed it in registering his trade mark. This is a very common thing to do. The design of an animal which design has no particular significance would not really be regarded as covered by the registration of the trade mark as excluding similar other animals being used by others. Nobody can claim a social prerogative to make use of the design of an animal in creation, as particularly an animal which is so common as the elephant. But that is not the point to be considered. Forgetting the elephant part of it, if the general design taken with the elephant in it is likely to create an impression in the minds of the public using the beedies that the beedies put forward by the defendants are beedies put forward V the plaintiff, that would be enough.

( 3 ) IN this case the facts are that the plaintiff had registered his trade mark with the Chamber of Commerce, Madras in 1936. Subsequently, after the Trade Marks Act (Trade Marks Act V of 1940) came into operation, he got his trade mark registered under the said Act. The respondents do not appear to have registered their trade mark at all either with the Chamber of Commerce, Madras or under the Trade Marks Act. There is also no indication that the respondents are regular manufacturers and traders in beedies, as no specific averments are made to the effect that they maintain accounts or that they pay income-tax or sales-tax or excise duty as is being done by the plaintiff. It is true that these circumstances by themselves are not material. what is important to be considered is whether the defendants have been using a design on the beedies put forward by them for sale in the market, similar to that of the plaintiff and whether that design is likely to deceive the public into thinking that the beedies produced by the defendants are the beedies produced by the plaintiff. A series of these marks have been produced for my inspection, and on a careful comparison of the two, which course is not a correct method of determining the issue in

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