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2004 Supreme(Kar) 486
IN THE HIGH COURT OF KARNATAKA
Hon'ble Justice V.G. Sabhahit, J.
Soore Detergents, by Proprietor - Appellant
Vs.
D. Mohanraj and another - Respondent
Miscellaneous First Appeal No. 4435/2004 etc.
Decided on : 30-07-2004
Advocate Appeared:
Mr. Udaya Holla, Mahesh R. Uppin
Mr. K.G. Raghavan
Headnote:
PASSING OFF - DETERGENT GOODS - [Order 39 Rules 1 and 2 CPC] - [Amritdhara Pharmacy Vs. Satyadeo Gupta, AIR 1963 SC 449; Cadila Health Care Ltd., V. Cadila Pharmaceuticals Ltd., AIR 2001 SCW 1411; Mangalore R.K. Beedies V. Mohammed Haneef 1993(3) Klj 37(Db)] - The court found that the defendant's use of the label mark 'SOUNDARI' was a deliberate attempt to pass off their goods as those of the plaintiff, causing confusion and potential damage to the plaintiff's business. The court held that the plaintiff had made out a prima facie case of passing off by the defendant and that the balance of convenience was in favor of the plaintiff, granting an order of temporary injunction to restrain the defendants from passing off their detergent cakes bearing the trade mark 'SOUNDARI' or any deceptive mark in Karnataka during the pendency of the suit.
Fact of the Case:
The plaintiff filed a suit seeking permanent injunction restraining the defendants from passing off their detergent goods bearing the label mark 'SOUNDARI' as or being connected with the business of the plaintiff by using a deceptively similar mark. The plaintiff also sought injunctions to restrain the defendants from infringing the copyright of the plaintiff's label 'SUNDARI' and from violating a settlement agreement. The trial court vacated the ad-interim injunction granted to the plaintiff, leading to the plaintiff's appeal.
Finding of the Court:
The court found that the defendants' use of the label mark 'SOUNDARI' was a deliberate attempt to pass off their goods as those of the plaintiff, causing confusion and potential damage to the plaintiff's business. The court held that the plaintiff had made out a prima facie case of passing off by the defendant and that the balance of convenience was in favor of the plaintiff, granting an order of temporary injunction to restrain the defendants from passing off their detergent cakes bearing the trade mark 'SOUNDARI' or any deceptive mark in Karnataka during the pendency of the suit.
Issues: The issues before the court included whether the order of the trial court dismissing the plaintiff's application for temporary injunction called for interference, and what order should be passed in the appeals.
Ratio Decidendi: The court held that the defendants' use of the label mark 'SOUNDARI' was a deliberate attempt to pass off their goods as those of the plaintiff, causing confusion and potential damage to the plaintiff's business. The court found that the plaintiff had made out a prima facie case of passing off by the defendant and that the balance of convenience was in favor of the plaintiff, granting an order of temporary injunction to restrain the defendants from passing off their detergent cakes bearing the trade mark 'SOUNDARI' or any deceptive mark in Karnataka during the pendency of the suit.
Final Decision: The court allowed the plaintiff's appeal, setting aside the trial court's order and granting an order of temporary injunction to restrain the defendants from passing off their detergent cakes bearing the trade mark 'SOUNDARI' or any deceptive mark in Karnataka during the pendency of the suit. The court directed the trial court to dispose of the suit within nine months from the date of receipt of the order.
V.G. Sabhahit, J.--These three appeals by the plaintiff in O.S.No.1259/2004 on the file of the VIII Addl. City Civil Judge, Bangalore, are directed against the order dated 27.5.2004 wherein I.As.I to III filed by the plaintiff under Order 39 Rules 1 and 2 CPC., wherein ad-interim order of Injunction granted has been vacated.
2. The facts of the case in brief leading up to these appeals with reference to the rank of the parties before the Trial Court are as follows:
The plaintiff filed a suit O.S.1259/2004 against the defendants seeking for permanent injunction restraining the defendants by themselves, their partners, manufacturers, servants, licensees, agents, printers, carriers and distributors or any one claiming under them from in any manner:
a) committing 'passing off' their detergents goods bearing the label mark "SOUNDARI" as and for or being connected with the business of plaintiff by using deceptive similar mark in any modified form or by using the colour scheme or get up.
b) committing 'infringement of copyright' in the artistic work of plaintiff's label "SUNDARI" by distributing printing or cause to be printed the impugned label of the defendants "SOUNDARI".
c) from marketing and selling detergent goods under any deceptively similar name to that of "SUNDARI" in the State of Karnataka either directly or indirectly by violating the terms and conditions of the settlement Deed dated 8.3.2003 entered between the plaintiff's husband and first defendant;
d) directing the defendants to surrender to the plaintiff all the unused labels, wrappers and other printed matters containing or consisting of the offending mark together with blocks used for the purpose of printing the same for destruction and costs.
3. In the said suit, the plaintiff filed I.As.I to III under Order 39 Rules I and 2 CPC., seeking for an order of temporary injunction against the defendants in terms of the final relief sought far as per clauses (a)(b) and (c) referred to above. An order of exparte temporary injunction was granted on 25.2.2004. After the appearance the defendants filed objections to the applications with the counter affidavit of the defendants and the Trial Court by its order dated 27.5.2004 vacated the ad-interim injunction granted on 25.2.2004 and being aggrieved by the said Common order on I.As.I to III the plaintiff is before this Court in this appeal.
4. I have heard the learned Senior Counsel appearing for the plaintiff-appellant and the learned Senior Counsel appearing for the defendants-respondents and scrutinised the material on record.
5. It is clear from the material on record that the plaintiff filed I.As.I to III for the above said reliefs of temporary Injunction under Order 39 Rules I and 2 .CPC, along with the affidavit of the Power of Attorney Holder of the plaintiff averring that the plaintiff is a proprietorship firm carrying on the business of manufacture and sale of detergent soaps and detergent powder under the label mark "SUNDARI". Originally the label mark "SUNDARI". was being used by the plaintiff's husband viz., D. Suyaraj along with his brother D. Mohanraj, who is first defendant herein under the name and style of Lakshmi Industries" at No. 138, Sundak kamuthur Road, Coimbatore-641 026. Subsequently there were several changes in the constitution of the firm 'Lakshmi Industries'. Finally, a settlement was effected on 8.3.1993 between the plaintiffs husband D. Suyaraj and the first defendant D. Mohanraj with regard to the continuous and simultaneous use of the label mark "SUNDARI" by both of them. Accordingly the plaintiff's husband D. Suyaraj is entitled to use the label mark "SUNDARI" in 17 Districts of the State of Tamilnadu including the entire State of Karnataka. The first defendant is entitled to use the label mark "SUNDARI" in the State of Tamilnadu including the entire State of Andhra Pradesh. Thereby the first defendant is not entitled to market the detergent cakes and powder under the label mark "SUNDARI" in
