R. N. Aggarwal, J.

( 1 ) IN this case both the plaintiffs and the defendants carry on the trade in manufacture and sale of steel balls. The plaintiffs are trading under the trade mark nova and the defendants under the trade merk jani . The plaintiffs pack and market the steel balls in their artistic carton entitled nova . The salient features of the plaintiffs carton are that 4/5th side panel are red throughout the length and breadth of the carton. On the length side of the penal the expression nova Ball Bearing Industries, Delhi-35" is written in white. The breadth side panel indicate the description size 1/4 and "12 Gross" respectively. The upper side panels. have blue and white squares with a red band in the centre bearing the trade mark nova Steel balls. There is also a red circle in one of the upper side panels in which the initials of the Plaintiffs firm SNB appear prominently. The carton of the Plaintiffs it marked Annexure a to the plaint. The plaintiffs got the copyright of their artistic carton registered in 1978.

( 2 ) THE case of the plaintiffs is that the. defendants are packing and marketing their products in cartons having same colour scheme, get-up, lay out and arrangement as that of the plaintiffs cartons and that the above is not a matter of chance but a deliberate attempt to deceive the unwary class Of purchasers and to earn profits in illegal manners. The plaintiffs alleged that the steel balls are generally purchased by illiterate cycle mechanics, servants workmen etc. and that the sale of the goods by the defendants in the cartons in question are likely to be passed off as that of the plaintiffs.

( 3 ) THE defendants in their written statement have pleaded that the plaintiffs have no exclusive right to the square device get up and that there is nothing artistic about it. It is alleged that manufacturers and dealers in several trades including cycle goods medicinal products, cloth trades etc. are using cartons bearing the square device. The defendants have further alleged that the main feature of the respective cartons is the trade mark of the parties, that is, nova and jani which are dissimilar visually as well as phonetically and there is no chance or occassion in the purchaser mistaking the goods of the defendants as that of the plaintiffs. It is further pleaded that the defendants carton bear the mark jani as a trade mark at 5 places which clearly distinguishes the carton of the defendants from that of the plaintiffs.

( 4 ) THE grant of an injunction is a discretionary relief. There are three guiding factors which have to be kept in view in refusing or allowing the relief of ad-interim injunction, namely, the proof of a prima facie case, the balance of convenience between the parties, and whether the interim injunction if not granted will cause irreparable injury to the plaintiffs.

( 5 ) AFTER hearing the learned counsel for the parties at length and giving the case my very careful consideration, I am of the view that the above conditions are satisfied in this case and the application must be allowed.

( 6 ) THE plaintiffs are manufacturing and selling steel balls in the cartons entitled nova since about 1971. The plaintiffs got their artistic carton registered under the Copyright Act in 1978. The defendants came into the trade of manufacturing and selling of steel balls only in the year 1980. In para 6 of the written statement the defendants have pleaded that they have - not sold any goods in the market and they have only supplied samples in the market.

( 7 ) A comparison of the two cartons nova and jani would reveal that two cartons are exactly similar in size, colour scheme and get up, the only difference that the trade mark of the defendants is written at 5 places and that of the plaintiffs at 3 places. The two cartons bear such a close resemblance that they can easily confuse and deceive a customer.

( 8 ) THE plaintiffs have placed on record a statement of their sales fro

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