Application for leave to be refused for choosing wrong forum by plaintiff.

The Order of the Court was as follows :

1. The Appellant's application for an interim injunction restraining the Defendant/Respondent from committing any infringement of its Copyright in the artistic work filed as Document Nos. 1 and 2 alongwith the plaint till the disposal of the suit; its application for an injunction restraining the Defendant from infringement its trade mark Nos. 301187 and 250152 in Clause 30 filed as Document Nos. 3 and 4 till the disposal of the suit; its application for an injunction restraining the Defendant from passing off its goods as that of the plaintiff/Appellant using the impugned label; and its application under Clause 14 of the Letters Patent for with leave to combine the causes of action for infringement of trade mark and passing off for along the suit for infringement of copyright have been dismissed by a common order by a learned single Judge of this Court. The appellant herein has invoked Clause 15 of the Letters Patent and preferred these appeals.

2. Since the learned single Judge has found that the Plaintiff/Appellant's application under Clause 14 of the Letters Patent for leave to combine the causes of action for infringement of trade mark and for passing off alongwith the suit for infringement of Copyright should not be ordered, he has for that reason also held that this Court has no jurisdiction to entertain the suit with reference to infringement of trade mark and passing off. In the application for injunction restraining the Defendant from committing any infringement of the Copyright learned Judge has said that prima facie no infringement of copyright has been made out.

3. The Plaintiff has claimed that its business established in the year 1912 as manufacturers, marketers and exporters of tea and other consumer goods on a large scale with an annual sales turnover of about Rs.400 crores gained very valuable reputation and goodwill especially in the tea trade, one of the popular brands of tea selling with the banner "Super Dust Tea" since 1968 in various sizes and packets. The marketing of the tea with banner "Super Dust Tea" was/being done under four registered trade marks and two other trade marks for which applications have been filed for registration. The essential features of the series of trade marks are the unique colour combination of green background, the words "Super Dust Tea" in white and the floral get up in different shades of red and pink in all the packings with slight variation in the get up designed to suit the sizes of the packet carrying different quantities of tea. In January, 1987 the Plaintiff introduced a yellow circle in which the words "Super Dust Tea" are printed in red and green. Since three months prior to the filing of the suit, the plaintiff noticed in markets in the region of Nagpur and Visakapatnam tea packets marketed by the Defendant in cartons having the substantial features of the Plaintiff's cartons. The Defendant's carton, according to the Plaintiff, is deceptively similarly to the Plaintiff's carton and reproduces substantially all the essential features of the Plaintiff's artistic work. The Plaintiff's "Super Dust" in red and "Tea" in green, (learned single Judge has also noticed), as alleged by the Plaintiff, are reproduced by the Defendant's "Super Star" in red and "Tea" in green and just as the Plaintiff's banner is surrounded by a yellow star of similar dimension. Below the banner, the Plaintiff's flowers in different shades of red with green leaves are copied by the Defendant. The Plaintiff's yellow piping on the left hand top with the word "New" in red is reproduced by the Defendant with the similar piping containing in red letter "Fresh Assam Tea". The Plaintiff's colour scheme of green background and employing yellow, pink and green for its artistic work have been copied. Above all, the concept of flowers and leaves associated with tea, has been captured by the Defendant. The Defendant has adopted the impugned label with the sol