B. N. KTRPAL, J. (Oral)

( 1 ) THIS order will dispose of I. A. No. 177/88, being an application under Order 39, Rules 1 and 2 CPC filed by the plaintiff; I. A. No. 416/88 being an application under Order 39, Rule 4 Civil Procedure Code filed by defendant No. 1; and I. A. No. 1298/88, being an application under Section 151 Civil Procedure Code filed by the plaintiff.

( 2 ) THE plaintiff had filed a suit alleging that its registered trade mark "saffola" has been infringed by the defendant. According to the averments in the plaint, the plaintiff is the owner of the registered trade mark "saffola" in respect of edible oil. This registration was applied for on 17th October 1961. This registration was granted. The plaintiff also applied on 28th August 1964 and obtained another registration for the word "saffola" in respect of Kardi Oil. A third registration which was obtained was of the label consisting of two horizontal labels similar to the earlier label, but with the addition of a device of heart. According to the plaintiff it is selling edible oil in Delhi and other places in India in a tin which has yellow background with grooves in the upper and lower parts of the tin. The allegation of the plaintiff is that in or about April 1987 it learnt that the defendant had adopted a trade mark

( 3 ) SHAPOLA" in respect of edible oil manufactured by it. It is also alleged that this oil is also being marketed in a similar tin having yellow background with horizontal grooves in the upper and lower parts of. the tin. According to the plaintiff, the two words "saffola" and "shapola" are phoneticaily similar as the prefix and the suffix of the two words are common and the letters "f" and "p" carry a similar sound.

( 4 ) A notice dated 25th April 1987 was sent by the Trade Mark Attorney of the plaintiff alleging that the trade mark of the plaintiff had been infringed. By a letter dated 25th May 1987 the aforesaid notice was replied to and it was denied that the defendant had infringed the plaintiff s trade mark. The plaintiff did not enter into any further correspondence with the plaintiff, but filed the present suit alleging infringement of its trade mark by the defendant and has prayed for a perpetual injunction restraining the defendant from using a similar trade mark, and in particular the defendant should be restrained from using the mark "shapola".

( 5 ) ALONG with the suit, the plaintiff filed I. A. No. 177/88, being an application under Order 39, Rules 1 and 2 CPC. By the order dated 8th January 1988 an ex parte injunction as prayed for was granted. Thereupon, the defendant filed an application under Order 39, Rule 4 CPC, being I. A. No. 416/ 88. According to the allegations of the defendant the plaintiff is marketing safflower Oil, whereas the defendant is marketing sunflower oil. It is further the case of the defendant that the suffix "ola" is common to the edible oils, being a Greek word for oil and furthermore, the prefixes "saff" and "shap" are not phoneticaily or visually similar. It is further the case of the defendant that the Indian Standards Institute has recommended that the tin containers for the edible oils in respect of 5 kilograms should have two horizontal grooves in the upper and the lower parts of the container as this strengthens the tin and prevents it from collapsing. It. is further the case of the defendant that the plaintiff did not have a design registration in respect of such containers. The defendant further states that it has incurred a lot of advertisement expenditure during the period of March to December 1987 and further sold sunflower oil under the trade mark "shapola" to the tune of Rs. 70,000 per month. Giving justification for the prefix "shap", it is the case of the defendant that this is derived from the word "shape" so as to suggest to the consumers that the oil is free from fat and other impurities. Furthermore, according to the defendant an ordinary illiterate consumer is unlikely to purchase such a

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