JUDGMENT

R. DASH, J. - This appeal is in challenge of the order dated 18.5.2013 passed in I. A. No. 250 of 2012 by the learned District Judge, Cuttack, refusing to grant interim injunction restraining the defendant-respondents from using the labels and wrappers mentioned in Schedule 'B' of the interim application to pass off its business and products as those of the plaintiff-appellants.

2. The appellants as plaintiffs in the suit before the learned District Judge have claimed that plaintiff No.1 is a private Limited Company manufacturing 'Bidis' in the trade name 'New Orissa Bidis' and selling the products under the said Trade name since 1945. The plaintiffs got the trade name registered under the Trade and Merchandise Marks Act 1958 which has now expired but the plaintiffs have filed a fresh application before the competent authority to get the Trade Mark registered in their name. They have also got registered the colour combination, get-up, design and the general layout of the labels and wrappers which are used for the purpose of package of the product under the Indian Copyright Act, 1957. It is claimed that due to good quality of the product, it had acquired a distinct reputation and goodwill amongst the 'Bidi' consuming public who used to purchase the product by having a look at the labels and wrappers used for the package of the product. Thus the labels and wrappers of the product have become the exclusive property of the plaintiffs and no one else is legally entitled to use or utilize the same. It is alleged that the respondent-defendant being an unscrupulous and dishonest person, taking advantage of the popularity and goodwill of the appellants' product started manufacturing cheap and Inferior quality of 'Bidi' and has been passing off the same as the appellants' product by using identical and, deceptively similar labels and wrappers with the Trade name "Nutan Orissa 'Bidi" which phonetically resembles to the plaintiffs' trade mark i.e. "New Orissa Bidi". It is alleged that for the last about 8-9 months preceding filing of the suit the sale of plaintiffs' product has been substantially reduced by 50%. On investigation, they came to know that the defendant has been passing off his products as that of the plaintiffs' and due to such illegal and unlawful action on the part of the defendant, the plaintiffs have sustained a huge loss of Rs. 5,00,000/-. Therefore, plaintiffs have filed a suit for damages with prayer for permanent injunction restraining the defendant from passing off his product by using the plaintiffs' labels and wrappers which are deceptively looking like that of the plaintiffs.

2. The defendant in his objection has denied all the allegations made by the plaintiffs. He has asserted that the labels and wrappers used for his product with the Trade name 'Nutan Orissa Bidis' is not similar to the labels and wrappers used by the plaintiffs. The Trade Mark name is also not phonetically similar. So, the case of passing off has not been made out by the plaintiffs. It is further asserted that the plaintiffs having not registered their trade mark for their brand product, they cannot claim any protection against use of any such trade mark as claimed by them.

3. Learned Court below having considered the submissions made on behalf of the parties and the material objects placed before it, observed that the defendant is producing 'Bidis' using labels and wrappers for the package of his product which are almost identical to the labels and wrappers used by the plaintiffs, resulting passing off of his product as the product of the plaintiffs. The learned lower Court further observed that even in the absence of registration of their trade mark, the plaintiffs can approach the Court to prevent passing off someone's product as their product. The learned lower Court has further observed that both the parties are selling 'bidis' using similar looking labels and wrappers but the use of the labels and wrappers by the plaintiffs is much