Back
2006 Supreme(Gau) 38
IN THE HIGH COURT OF GAUHATI
Iqbal Ahmed Ansari, J.
Saha and Nath Biri Factory and Ors. - Appellants
Vs.
Sankar Biri Factory - Respondent
FAO No. 30 of 2005
Decided On: 05.01.2006
For Appellant/Petitioner/Plaintiff: A.K. Goswami, N. Chakraborty, C. Goswami and M.K. Sarma, Advs.
For Respondents/Defendant: N. Dhar, B.K. Sen,P. Dutta M. Rakchit, Advs.
The central legal point established in the judgment is the application of the principle of passing off to protect the reputation and goodwill of a product, emphasizing the likelihood of confusion among consumers and the potential for injury to the established brand.
Headnote:
Trademark - Passing off - 1322924, AIEPS 5089 D x M001 - The court discussed the principles of passing off and the factors to be considered in cases of deceptive similarity. It highlighted the importance of protecting the reputation and goodwill of a product and the likelihood of confusion among consumers. The court emphasized that even innocent adoption of a similar name or style can lead to confusion and cause injury to the established brand. The judgment referred to previous cases to support the decision and concluded that the grant of temporary injunction was justified in the present case.
Fact of the Case:
The Plaintiff, a Bidi manufacturer, sought a temporary injunction against the Defendant for selling their Bidi under a similar name and style, alleging deceptive imitation and potential loss of reputation and goodwill.
Finding of the Court:
The court found that the Plaintiff's product had acquired a reputation and goodwill and that the Defendant's product was likely to cause confusion among consumers, leading to potential irreparable loss to the Plaintiff.
Issues: The issues involved the deceptive similarity between the Plaintiff's and Defendant's products, the likelihood of confusion among consumers, and the grant of temporary injunction based on the principle of passing off.
Ratio Decidendi: The court applied the principle of passing off, emphasizing the protection of reputation and goodwill of a product and the likelihood of confusion among consumers. It considered the factors of deceptive similarity and the potential for injury to the established brand.
Final Decision: The appeal was dismissed, and the temporary injunction granted by the trial court was upheld, with costs imposed on the Defendant.
I.A. Ansari, J.
1. This appeal is directed against the order, dated 25.07.2005, passed by the District Judge, Darrang, in Misc. (J) Case No. 07/ 2005, arising out of the Title Suit No. 08/ 2005, whereby the learned District Judge has granted temporary injunction restraining the Defendant-Appellant from selling their Bidi under the name and style of 'Super Babu Bidi' in poly packets with red and yellow colour label and the same artistic design as those of the Plaintiff-Respondent's Bidi sold under the name and style of 'Special Babu Bidi'.
2. The Plaintiffs case, while seeking the order of temporary injunction, was, in brief, thus: The Plaintiff-Petitioner, as sole proprietor of Sarkar Bidi Factory, situated at Kharupetia Town; District-Darrang, has been manufacturing and selling Bidi and tobacco products in whole of Assam and, especially, in the districts of Darrang, Sonitpur and Kamrup, since the year 1987. The Plaintiff-Petitioner's Bidi is sold and marketed under the name and style of 'Special Babu Bidi' under the trademark No. 1322924 and registration No. AIEPS 5089 D x M001, issued by the Central Excise, Mangaldoi range. The Plaintiff's product, namely, ' Special Babu Bidi' is sold in poly packet with photograph of the proprietor on the front side of the poly packet. The Bidi, so produced, in poly packets, having yellow and red colour combination on the front side of the packet, has become popular amongst the consumers of Bidi. The Defendant-opposite party have started selling their Bidi since the last week of December, 2004, under the name and style of 'Super Babu Bidi', without quoting the trademark number, deceptively adopting similar artistic combination of design and colour in their poly packets as those of the Plaintiff-Petitioner with the obvious intention to create confusion amongst the consumers of Bidi and make thereby wrongful gain. If the Defendant-opposite party are not restrained, by granting of suitable temporary injunction, from selling their Bidi by using the same colour combination and label as those of the Plaintiff-Petitioner, the Plaintiff-Petitioner, will irreparable loss.
3. The Defendants-Appellants filed their written objection resisting the prayer for temporary injunction, the case of the Defendants being, briefly stated, that the Plaintiff-Petitioner has no registered trademark and the Plaintiff-Petitioner has not been selling his Bidi after getting the Central Excise Registration Certificate issued by the Commissioner, Central Excise. The 'Super Babu Bidi', manufactured by the Defendant-opposite party, are not sold in poly packets with similar design, colour combination, label or photograph as those of the Plaintiff-Petitioner's poly packets and that the colour combination and style imprinted on the poly packets are of the choice of the Defendants-opposite party, there is no similarly between the two poly packets nor are the names of the products phonetically same and that the poly packets of both the parties are so strikingly dissimilar and different that no one of average intelligence would be deceived or would fail to distinguish the Plaintiffs Bidi from the Bidi manufactured and produced by the Defendants-opposite party.
4. I have heard Mr. A.K. Goswami, learned Senior counsel, appearing on behalf of the Defendant-Appellants, and Mr. N. Dhar, learned Counsel, appearing on behalf of the Plaintiff-Respondent.
5. The challenge to the order of temporary injunction is posed, broadly speaking, on three grounds. It is pointed out by Mr. Goswami that the Plaintiff had merely applied for registration of their trademark, but without the registration having been granted, the Plaintiff averred that their Bidi was being sold under a registered trademark. This averment, contends Mr. Goswami, was completely false and injunction, being equitable relief, ought not to have been granted, when the Plaintiff had made false and misleading averments in its petition for injunction and had not, thus, come to the
