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2017 Supreme(AP) 74
IN THE HIGH COURT OF JUDICATURE AT HYDERABAD FOR THE STATE OF TELANGANA AND THE STATE OF ANDHRA PRADESH
Suresh Kumar Kait and U. Durga Prasad Rao, JJ.
Jagdamba Phosphate, (A Unit of Jagdamba Pesticides Pvt. Ltd.), Represented by its Director - Petitioner
Vs.
Coromandel International Ltd., Secunderabad, Rep. by its Vice-President - Legal -Respondent
Civil Miscellaneous Appeal No. 71 of 2017
Decided On : 28-03-2017
For the Appellant : M. Govind Reddy
For the Respondent: S. Ravi, Ch. Pushyam Kiran
Headnote:
Constitution of India - Appeal is filed on the grounds that granting of temporary injunction orders passed in aforesaid I.A is arbitrary illegal and against the principles of natural justice - It is wrongly held that the label on the Gunny Bag is similar and deceptive to the general public even before examining any one of the general public - On one hand - Learned Court holds that Gunny Bags look like having deceptively similar marks and on the other hand gives a finding that appellant/defendant adopted similar mark which shows the total non-application of mind - Accordingly learned Judge wrongly held that appellant/ defendant has copied the logo of horse when horse by itself is not registered as trade mark of the appellant leave alone even the trade mark authorities themselves cannot register horse as trade mark to any person - It is wrongly held that all the artistic features are similar in nature even before examining any of the witnesses including expert witness - Appellant/defendant would submit that the learned trial Judge has wrongly held that arrangement of features and placing of features goes to show that appellant/defendant has merely copied the Trade Mark and Label of the respondent/plaintiff whose trade mark was Double Horse and that of appellant/defendant was Triple Horse - Learned Judge while relying on the decision of Supreme Court in Healthcare Pharmaceuticals Ltd completely failed to identify or assess in what way or otherwise in what manner the Logo/Mark of the respondent/plaintiff is similar to that of appellant/defendant either visually or phonetically or otherwise connected, but gave a finding that using of similar trade mark by the appellant/defendant with minor changes is nothing but infringement of respondent/plaintiffs Mark - Appellant/defendant would further submit that the learned Judge wrongly held that farmers are illiterate though the appellant/defendant never admitted that farmers are illiterate - Held, Label used by the appellant is Three Horses whereas the trade mark of the respondent is Double Horse farmers specially in Hindi speaking areas as the product of the fertilizer in issue before this Court is supplied in the States of and Pradesh would only ask for - They are not able to distinguish which horse going in which side or how many horses are exhibited there - They just keep in mind horses and the colour of the gunny bag. In the present case the gunny bag used by the appellant and used by the respondent is of similar and in same with Three Horses and Double Horses label respectively this type of deceptive label will certainly cause confusion in the minds of the illiterate farmers because the colour of the gunny bag is similar with horses thereon - Product sold by both the appellant and respondent is fertilizer majority of the farmers would be influenced by the pictorial depiction on the product. Admittedly, the respondent enjoys the registered trade mark Double Horse brand depicting two running horses for nearly more than a decade - Respondents product label indicates the pictorial depiction of two running horses towards left side with a green band with the words written in different languages while on the right side a band in green mentions the word Gromor in large font - Appellants product label bears the name Three Horses and depicts three horses in motion - This pictorial depiction of three running horses is bordered on the top side with a thin red band with words written therein, while on the right side a wider band in green mentions the words Triple Horses with the same pictorial depiction of three horses in motion - There are similarities in both the labels visually which certainly will confuse a gullible and un-informed farmers in our country may also innocently believe that use of three horses indicates more potency of fertilizers as compared to two horses - issue has already been decided by this Court vide the judgment dated 25th January 2017 in C.M.A No. 138 of 2016, wherein, the respondent was also one of the parties, we are of the considered view that there is a similarity in the label used by the appellant and the registered trade mark of the respondent - Appeal same is accordingly dismissed.
SURESH KUMAR KAIT, J.
Vide the present appeal, the appellant/defendant has challenged the order dated 19th December 2016 passed in I.A No. 782 of 2016 in O.S No. 56 of 2016, by the I-Additional Chief Judge, City Civil Court, Secunderabad.
2. The present appeal is filed on the grounds that granting of temporary injunction orders passed in aforesaid I.A is arbitrary, illegal and against the principles of natural justice. It is wrongly held that the label on the Gunny Bag is similar and deceptive to the general public even before examining any one of the general public. On one hand, the learned Court holds that Gunny Bags look like having deceptively similar marks and on the other hand gives a finding that appellant/defendant adopted similar mark, which shows the total non-application of mind. Accordingly, learned Judge wrongly held that appellant/ defendant has copied the logo of horse when horse, by itself, is not registered as trade mark of the appellant, leave alone, even the trade mark authorities themselves cannot register horse as trade mark to any person. It is wrongly held that all the artistic features are similar in nature, even before examining any of the witnesses, including expert witness.
3. We have heard learned counsel for the parties in length and perused the material on record.
4. Learned counsel Sri. M. Govind Reddy, appearing on behalf of the appellant/defendant would submit that the learned trial Judge has wrongly held that arrangement of features and placing of features goes to show that appellant/defendant has merely copied the Trade Mark and Label of the respondent/plaintiff whose trade mark was Double Horse and that of appellant/defendant was Triple Horse. The learned Judge, while relying on the decision of Honble Supreme Court in Cadila Healthcare Ltd. v. Cadila Pharmaceuticals Ltd., completely failed to identify or assess in what way or otherwise in what manner the Logo/Mark of the respondent/plaintiff is similar to that of appellant/defendant either visually or phonetically, or otherwise connected, but gave a finding that using of similar trade mark by the appellant/defendant with minor changes is nothing but infringement of respondent/plaintiffs Mark.
5. Learned counsel for appellant/defendant would further submit that the learned Judge wrongly held that farmers are illiterate, though the appellant/defendant never admitted that farmers are illiterate. The learned Judge ought not to have held that the Public are incapable of distinguishing the trade marks, without calling even one witness for examination. Moreover, the learned Judge has wrongly held that perusal of Exhibits B1 and B2 causes confusion in the minds of the farmers, without even calling one farmer to identify whether it causes confusion.
6. The learned Judge ought to have seen that the judgment in the case of Kirorimal Kashiram Marketing & Agencies Pvt. Ltd. v. Shree Sita Chawal Udyog Mill relied on by the respondent is based totally on different set of facts and circumstances which is squarely not applicable to the present case, as the said judgment did not consider the grounds raised in this case. The learned Judge ought to have seen that the requirement of S.S.P in Rajasthan is 14.50 Kgs per Hectare, whereas, it requires 29.21 Kgs per Hectare in Madhya Pradesh. So, it can be presumed that consumers are aware of the strength of their respective soils, and therefore, before purchasing such huge quantities, any reasonable person would at least glance at the Mark and make his efforts to know the details of manufacturer or producer from whom he is purchasing it.
7. To strengthen his arguments, learned counsel for appellant has relied upon the case of Wheels India v. S. Nirmal Singh, whereby, it is held that the continuance of an ad interim injunction granted in favour of the plaintiff ex parte and without disclosure of full facts is not warranted and the ends of justice will be met if pending disposal of the suit, the interim orders are
