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2003 Supreme(Bom) 1455
IN THE HIGH COURT OF BOMBAY
S.J. Vazifdar, H.L. Gokhale, JJ.
Dil Co. International - Appellant
Vs.
Meso Private Ltd. And Another - Respondent
Appeal (Lodging) No. 1013 of 2002 in Notice of Motion No. 2010 of 2002 in Suit No. 2396 of 2002
Decided On : 05-02-2003
Advocate Appeared:
For the Appellant : J.A. Antony, Adv.
For the Respondent: Salil Shah, instructed by Gajaria and Co., Adv.
The overall similarity of labels and the existence of a registered trademark can justify the grant of injunction in cases of trademark infringement.
Headnote:
Injunction - Trademark Infringement - Similarity of Labels
Fact of the Case:
The Respondents filed a Suit alleging trademark and copyright infringement by the Appellants for using a label with a caricature similar to theirs. The Single Judge granted injunction for the label but not for the seal.
Finding of the Court:
The Court found that there was a marked similarity between the labels, as emphasized by the broad and essential features, and upheld the injunction. The Court also dismissed the Appellants' argument regarding common depiction for selling perfumes meant for ladies.
Issues: Trademark and copyright infringement, similarity of labels, availability of objection under Trade and Merchandise Act
Ratio Decidendi: The Court emphasized the need to consider the overall similarity of labels and upheld the injunction based on the registered trademark of the Respondents. The Court also noted that the objection raised by the Appellants was not available in the present case.
Final Decision: The appeal was dismissed, affirming the injunction granted for the label and rejecting the objection raised by the Appellants.
JUDGMENT :
H.L. Gokhale, J.
1. Heard Ms. Antony for the Appellants. Mr. Shah appears for the Respondents.
2. The Respondents have filed a Suit contending that the Appellants are infringing their registered trade mark as also their copyright. They took out a Notice of Motion to restrain the Appellants from using a label with a caricature of a lady sitting near a window looking out at a man with a ca dissimilarity mel and a crescent shaped moon and also a seal. As far as the label is concerned, the learned Single Judge, who heard the Motion, accepted the submission of the Respondents that there was a marked similarity between the label used by the Appellants and the one used by the Respondents. He, therefore, granted injunction in so far as the label is concerned, which is annexed at Exhibit B to the Plaint. Asfaras the seal was concerned, the learned Judge formed the opinion after comparing two seals that there was a dis-similarity and, therefore, he did not grant interim relief sought.
3. Being aggrieved by that order, the present Appeal has been filed.
4. Ms. Antony, learned Counsel appearing for the Appellants, firstly submitted that there was no similarity even between the two labels and then submitted that this kind of depiction was common when it came to selling perfumes meant for ladies. As far as the first submission made by Ms. Antony is concerned, namely, that the labels are not similar, we have been shown the tins containing the labels and Mr. Shah, learned Counsel appearing for the Respondents, has rightly emphasized that while examining the question of similarity, broad and essential features have to be looked into. It is the overall similarity which one has to see as laid down by the Apex Court in the case of Parle Products (P) Ltd. Vs. J.P. and Co., Mysore, (1972) 1 SCC 618 and this judgment of the Apex Court is followed by a Division Bench of this Court in the case of Hiralal Parbhudas Vs. Ganesh Trading Company and Others, AIR 1984 Bom 218. We are, therefore, in agreement with the learned Single Judge as far as the first submission of the Appellants is concerned, namely, that there was, in fact, a similarity and, therefore, the injunction was necessary.
5. As far as the second submission of the Appellants is concerned, Mr. Shah points out that this point was not raised before the learned Single Judge. An objection on this footing would be available perhaps u/s 17(b) of the Trade and Merchandise Act, 1958. But, in the present case, the Respondents are having the particular label as their registered trade mark. This being so, in the facts of the present case, this submission would not be available to the Appellants. Appeal is, therefore, dismissed.
