No difference between the labels attached to the garments or onj cards attached to the garments.

SHIVARAJ V. PATIL, J.

This appeal is filed by the plaintiff in C.S. No. 785 of 1996 aggrieved by the order dated 25-3-1997 passed by the learned single Judge in O.A. No. 639 of 1996 in the said suit. In this order, we will refer to the parties as they are described in the suit, for convenience

2. The plaintiff has filed the said suit C.S. No. 785 of 1996 seeking mainly a decree for perpetual injunction restraining the defendants, their proprietor/partners, their servants, agents, distributors, stockists, representatives or any of them from in any manner passing off or enabling others to pass off the defendant's jeans, shirts and other articles of clothing as and for the plaintiff's jeans, shirts and other articles of clothing by use of the trade mark CAT and CATERPILLAR or any mark similar thereto in any other manner whatsoever

3. In the said suit, O.A. No. 639 of 1996 was filed for grant of an ad interim/ temporary order of injunction restraining the defendants in terms of the main relief sought in the plaint. Application No. 4430 of 1996 was filed by the plaintiff praying to appoint an Advocate Commissioner to visit the premises of the respondents at No. 9, 1st Floor, A.R.K. Colony, Eldams Road, Teynampet, Madras-18, and at No. 31, K. Veni Complex, Second Floor, Commercial street, Bangalore-1, and the premises of their sons, sons-in-law, daughters, daughters-in-law, wife, stockists, transporters and dealers, seize, jeans, shirts, articles of clothing cartons, labels, prints, blocks, dyes, bags, plates, moulds, stickers and other material bearing plaintiff's trade mark CAT and CATERPILLAR as well as books of accounts, etc

4. The learned single Judge, after hearing both the parties, held that the plaintiff did not make out any prima facie case for grant of injunction, dismissed both the applications O.A. 639 of 1996 and 4430 of 1996. The plaintiff, as already stated above, has filed this appeal against the order, rejecting O.A. No. 639 of 1996 by the learned single Judge which application was made for grant of ad-interim temporary injunction

5. Briefly stated, the facts which are considered relevant and necessary for the purpose of disposal of this appeal are the following

The plaintiff is the proprietor of the trade mark "CATERPILLAR" and 'CAT'. The registration of the said mark is valid and subsisting. Caterpillar Tractor Company was incorporated in the United States of America. The trade mark has become well known around the world primarily for the manufacture of heavy machinery for the construction, mining road building and agricultures industries. The plaintiff also manufactures and sells a wide range of garments including sweaters, jackets, shirts etc. They also manufacture and sell sun-glasses, sporting goods, etc. along with boots

6. The plaintiffs although are selling their earth moving equipments, construction and road building equipments in India, they are not selling the articles of clothing. However, their articles of clothing are well-known in India since the same is being advertised in magazines such as "MR" which has circulation all over the world. The plaintiff's clothing articles are sold in several countries all over the world. Their trade marks enjoy a great reputation and goodwill in India in respect of garments, caps and articles of sporting. The trade mark is exclusively identified by the trade and public with the plaintiff

7. The defendants are engaged in manufacturing and selling articles of clothing including jeans under the trade mark "CAT" and "CATERPILLAR" which amounts to copying the plaintiff's trade mark. Thus, the use of the identical trade mark by the defendants was bound to cause confusion and deception among the trade and public. Under such circumstance, the suit is filed for the relief as stated above

8. The defendant No. 2 has filed a common counter affidavit opposing the applications stating that the plaintiff is not marketing the garment products in India, and the advertisement produc