Arun Bhansali, J.

1. This appeal is directed against the order dated 19.01.2016 passed by the District Judge, Pratapgarh, whereby the application filed by appellant under Order 39, Rule 1 and 2 CPC seeking injunction has been rejected.

2. The appellant-plaintiff filed a suit for permanent injunction along with an application for temporary injunction alleging infringement/passing of label trademark and infringement of copyright of 'Nikah' label in respect of perfumeries against the respondent.

3. It was claimed in the plaint that a label trademark with prominence of word 'Nikah' and depicting 'Rani' was adopted by the appellant in respect of the goods and he applied for trademark registration on 24.04.2003 and was granted registration under No.1184951 in Class-3 in respect of attar and perfumes. It was claimed that the appellant is also registered owner of label trademark with prominence of word 'Nikah', depicting 'Rani' (Queen) and 'Mor' (Peacock) bearing No.1770552 in Class-3 in respect of goods. It was claimed that the mark was continuously, openly and extensively used by the appellant since 01.06.2002. Further submissions were made that the trademark was adopted/originated by the appellant with his own creation, labour and capital, which includes light green colour in the background, which label is also used for box of perfumes for outer packaging. It was also claimed that the appellant is owner and proprietor of the artistic features involved in the trademarks and holds copyright registration No. A-87830/2009 and 87831/2009. Further claims were made that the appellant's goods and business under the trademark/label acquired tremendous goodwill and reputation in the markets and has attained sizable turnover.

4. Thereafter, it was alleged that the respondent was infringing and passing off the label trademark 'Nikah' in respect of attar and perfumes by imitating deceptively similar label with prominence of word 'Nagma'; the respondent was selling its goods with a copied label trademark to that of the appellant's trademark/label. The distinctive light green combination of colour along with the style of display of 'Rani' (Queen) and 'Mor' (Peacock) along with the word 'Nagma' was being used with a dishonest, malafide and fraudulent intention. It was alleged that the overall resemblance between the appellant-plaintiff's trademark/label and that of the respondent's trademark/label is so close that the same is apparently a result of deliberate imitation. The unwary customers are bound to get confused and deceived, resulting in loss of goodwill and reputation of the appellant-plaintiff. It was prayed that the respondent be injuncted by way of temporary injunction from using the similarly deceptive trademark/label.

5. A response was filed by the respondent to the plaint as well as the application seeking temporary injunction, inter alia, claiming that the label trademark 'Nagma' was being used for many years, the firm was registered since the year 1964 and is doing business since then, the label trademark is not deceptively and confusingly similar to the label trademark and there is no decrease in sale of the appellant's products and in absence of actual damage, evidence by affidavits of third party, no case is made out.

6. The trial court after hearing the parties came to the conclusion that from the perusal of the two trademarks, there was no deceptive similarity, colour scheme was different. The respondent was using the trademark 'Rani' (Queen) and 'Mor' (Peacock), from before the same was got registered by the appellant and, therefore, there was no violation of provisions of the Trade Marks Act. No material has been produced to indicate any confusion and the names of the product were also different and, therefore, did not find any prima facie case in favour of the appellant. While considering the aspect of balance of convenience and irreparable injury, it was found that besides the fact that phonetic similarity has not been p