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High Court Of Delhi
AMIR CHAND OM PRAKASH - Appellant
Versus
MONGA PERFUMERY AND FLOOR MILLS - Respondent
Decided On : 05/01/1996
Held:
if the defendant has fraudlently with the knowledge has been violating the plaintiffs rights then in that case, even if there is a delay on the part of the plaintiff in taking action against the defendant, the relief of injunction cannot be denied. Where there is an honest, user by the defendant then inordinate delay or the laches may defeat the claim of damages or rendition of accounts but the relief of injunction should, not be refused. Thus on the principle of that it is the interest of the general public, which is third party in such cases, which has to be protected in case of delay of laches, as distinct from the case of acquiescence, the main prejudice may be caused to the defendant is that by reasons of the plaintiffs inaction, by not taking step at an earlier point of time, the defendant has been able to establish his business by using the infringed mark. Thus the delay or laches may in a given case disentitle the plaintiff to the relief of damages or rendition of accounts but as far as the relief of injunction is concerned the same, despite the delay or laches could be granted to the plaitiff if other requirements in this regard are satisfied.
Deception & Confusion — Similarity in design — Identical getup and colour scheme — The customers consisted of illiterate persons from rural area — Likelihood of confusion and deception not ruled out.
The plaintiff has been able to show prima facie that he is proprietor of the registered trade mark MAHAVIR under the Trade & Merchandise Marks Act and the also the registration of the label under the Copyright Act and the adoption of the mark with the impugned label and the mark of the defendant prima facie appears to be the colourable imitation and it is deceptively similar in all material particulars and the colour scheme is also so similar as to cause confusion in the minds of the purchasers since the purchasers would be ladies which may also include illiterate laides in urban as well as rural areas and also the domestic servants which would constitute special class of customers in relation to DHOOPBATTI and AGARBATTI and having regard to the colour combination, get up, and the words/writing on the cartons, label used by the defendant prima facie appears to be distinctly similar to that of the plaintiffs mark and label and likely to cause confusion in the course of trade particularly with regard to the class of purchasers as aforestated. It need hardly be said that besides protecting the proprietor of the registered trade mark and the registered owners of the Copyright, third party purchasers also need to be protected whose interest should be of permanent consideration when the goods of the registered proprietor of the trade mark are sought to be pass off by the person dealing in the same or allied products.
On balance of convenience
The irreparaable injunry would be caused to plaintiff if injunction is refused whereas no injury would be caused to the defendant since the plaintiff is the proprietor of the registered trade mark and the sufferer would be the third party/purchasers also. The balance of connivance also requires that the defendant be restrained by a suitable injunction since the refusal to grant injunction would render the suit infructous even when the plaintiff is registered proprietor of the mark and the defendant prima facie appears to have been passing off his goods as that of the plaintiff by infringing the trade mark of the plaintiff and copying the mark and the label as aforestated.
( 1 ) IN the suit alleging infringement of registered trade mark MAHAVIR CHHAP with device of Hanuman or Bajrang Ball and plaintiffs coyright in respect of Dhoopbatti and Aggarbati under the impugned label/carton JAI BAJRANG BALI DELUX DHOOP by I A 340/90 the plaintiff prays for relief under Order 39 Rules 1 and 2 CPC in respect of plaintiffs trade mark and copyright pending the hearing and disposal of the suit. By I A No. 1522/92 also the plaintiff has prayed for the same relief.
( 2 ) THE case of the plaintiff shortly stated is that the plaintiff is a registered proprietor of the trade mark MAHAVIR CHHAP with device of Hanumanji under registration No. 14958 dated 26. 4. 1943 in class-3 inrespect of DHOOP BATI; that in the year 1941 the plaintiff adopted the trade mark MAHAVIR CHHAP so as to indicate its connection in the course of trade with the goods of its manufacture and sale as a proprietor thereof; that the plaintiff adopted a distinctive label of the trade mark MAHAVIR CHHAP with device of Hanumanji for the purpose of marking its products in the market since the year 1982. The distinctive lable of the plaintiff entitled MAHAVIR DELUX DHOOP with device of Hanumanji, is registered under No. A-45929/84 under the provisions of Copyright Act, 1957; that the registration of the plaintiff under the Trade and Merchandise Marks Act as well as Copyright Act arc valid, subsisting and effective all over India; that defendant is engaged in the business of manufacturing and marketing of Dhoop Batti and Agarbatti; that the defendant has adopted an identical to and/or deceptively similar label of jai BAJRANG BALI with device of Hanuman/bajrang Bali and HANUMAN CHHAP DHOOP NO. 1 with device of Hanuman in respect of Dhoop and Agarbatti for its manufacture and sale; that the defendant has also adopted an identical to and/or deceptively similar label of JAI BAJRANG BALI with device of Hanuman/bajrang Bali as of plaintiffs registered copyright No. A- 45929/84 in all respects with deceptively similar matters and also in the same manner and fashion. The trade mark JAI BAJRANG BALI and ASLI HANUMAN CHHAP is equivalent to plaintiffs trade mark MAHAVIR CHHAP with device of Hauman/bajrang Bali and therefore, the idea suggested by the defendant s mark the conyed by the plaintiffs registered trade mark and copyright is the same; that the adoption of the trade mark JAI BAJRANG BALI and ASLI HANUMAN CHHAP and the device thereof on the part of the defendant is malafide, dishonest, tained and solely with a view to trade upon the reputation of the plaintiffs well known and registered trade mark and copyright MAHAVIR and device of Hanuman/bajrang Bali thereof. That the adoption by the defendant of the above mentioned trade marks and its labels to cause confusion and deception and to pass off their goods and business as and for the goods of the plaintiff and to create an impression as its goods Dhoop Batti and Aggarbatti under the trade mark JAI BAJRANG BALI and ASLI HANUMAN CHHAP with device of Hanuman/bajrang Bali have also originated from the plaintiff or are connected with the plaintiff in one or the other manner. That the defendant has full knowledge about the registration, reputation and status of the trade mark MAHAVIR with device of Hanuman/bajrang Bali thereof belonging to the plaintiff. That the goods manufactured by the plaintiff and the goods manufactured by the defendant are the goods of the same description and are sold and offered for sale by the same firm, shops and counters. The class of customers and the trade channel for. the goods of the plaintiff as well as the defendant are the same. That the use of the trade mark of ASLI HANUMAN CHHAP and JAI BAJRANG BALI with device of Hanuman/bajrang Bali on the part of the defendant for the goods Dhoop Batti and Aggarbatti is bound to cause confusion and deception in the minds of unwarry class of purchasers. In substance the say of the plaintiff is that the defendant has infr
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