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1961 Supreme(MP) 21
High Court Of Madhya Pradesh
P. K. Tare, J.
MOHANLAL HARPRASAD - Appellant
Versus
FIRM LAL MOHAMMAD - Respondents
Misc. (First) Appeal 146 Of 1960
Decided On : 02/27/1961
P.R.Padhye, P.S.KHIRVADKAR, S.AWASTHI
The grant of a temporary injunction in a trade-mark infringement case is not justified if there is no likelihood of confusion between the two labels and if the injunction would cause irreparable injury to the defendant without preventing any irreparable injury to the plaintiff.
Headnote:
TRADE MARK - INFRINGEMENT - TEMPORARY INJUNCTION - CONDITIONS - VALIDITY - SIMILARITY OF LABELS - LIKELIHOOD OF CONFUSION - BALANCE OF CONVENIENCE.
Fact of the Case:
The plaintiff, a registered firm, filed a suit against the defendant, also a registered firm, alleging infringement of its registered trade-mark by putting similar labels in the market. The plaintiff's trade-mark consisted of an oblong square with a green background, a picture of a cow in the middle, and the name of the plaintiff-firm at the top and bottom. The defendant's labels also had a green background, a picture of a cow, and the name of the defendant-firm at the top and bottom. The plaintiff obtained a temporary injunction from the District Judge on the condition that the plaintiff should undertake to pay to the defendant, for each of the two labels, one-twelfth of the total net profits earned by it in its bidi business during the continuance of the injunction.
Finding of the Court:
The court found that the only similarity between the two labels was in the selection of colors and the picture of a cow. The court also found that the defendant's business was mainly confined to three districts of Madhya Pradesh, while the plaintiff's business was spread over four states. The court further found that the defendant had been using the labels in question for over 24 years, while the plaintiff's trade-mark was registered only in 1944.
Issues: 1. Whether the defendant's labels infringed the plaintiff's registered trade-mark? 2. Whether the grant of a temporary injunction on certain terms was justified?
Ratio Decidendi: The court held that the defendant's labels did not infringe the plaintiff's registered trade-mark. The court applied the tests laid down by the Privy Council and the Supreme Court in cases of trade-mark infringement and found that there was no likelihood of confusion between the two labels. The court also held that the grant of a temporary injunction was not justified as it would cause irreparable injury to the defendant and would not prevent any irreparable injury to the plaintiff.
Final Decision: The court dismissed the plaintiff's appeal and allowed the defendant's appeal. The temporary injunction granted by the District Judge was vacated.
( 1 ) THIS order shall also govern the disposal of Misc. (First) Appeal No. 146 of i960 (Firm Lal Mohammad, a registered firm through partners v. Mohanlal Harprasad a registered firm through partners ).
( 2 ) THE present appeal is by the plaintiff against the order, dated, 9-8-1960, passed by Shri S. M. Pagnis, District Judge, Hoshangabad in Civil Suit No. 7-A of 1959, granting, a temporary injunction to the plaintiff under Order 39 Rule 2 of the Civil Procedure Code on certain terms. The plaintiff in the present appeal questions the imposition of the terms. The term imposed was that the plaintiff should undertake and bind itself in writing that in case it fails in the suit, it will pay to the defendant for each of the two labels E and G, one-twelfth of the total net profits learned by it in its bidi business during the continuance of this injunction and for this purpose, the plaintiff was. directed to keep regular, complete and correct accounts of its business.
( 3 ) THE connected appeal, namely, Misc. (First) Appeal No. 146 of 1960 is filed by the defendant against the same order of the District Judge. The defendant impugns, the order relating to grant of a temporary injunction,
( 4 ) THE plaintiff-appellant has a registered trade-mark, which is marked as Exh. A and Exh. B in the documents filed by the plaintiff. The wrapping covers are kept in a separate envelope. The plaintiff's trade-mark consists of oblong square with the background of green colour. At the top is. printed the name of the plaintiff-firm, namely, Mohanlal Harprasad and Company, Sihora Road. At the bottom the same thing is printed in Hindi. In the middle there is a circle within which is printed the picture of a cow in saffron colour with a green background showing the earth, and white and blue background showing the sky. On the four corners of the circle are printed the words in English and Hindi Bidl No. 7. On the left of the circle are printed words 'g. Jabalpur', while on the right are printed Urdu words. Wrapper of the Bidis is a plain white Jhilli paper and on it is stuck up an oblong piece of paper with white, blue and red colour showing the name of the founder, namely, lalchand Agrawal and the name of the firm, namely, Mohanlal Harprasad, Sihora road, District Jabalpur.
( 5 ) THE plaintiff filed the present suit, alleging that the defendant-firm had infringed its registered trade-mark by putting in the market similar labels. Therefore, the plaintiff's suit was mainly based on the allegation of infringement of a registered trade-mark. The plaintiff's case, at appears, was not based on any passing off action, nor is lit the plaintiff-appellant's case that the defendant-firm tried to pass off its goods as the goods of the plaintiff-appellant,
( 6 ) IT would, therefore, be necessary to examine the particulars of the labels E and g of the defendant-respondent-firm, regarding which the learned District Judge has granted a temporary injunction on certain terms. ( 7 ) THE label E of the defendant-respondent consists of a red border similar to the label of the appellant. It has a green background. On the top, are printed the words Lal Mohammad Jan Mohamad Harda. ' The same words are printed at the bottom in Hindi. Instead of a circle there is an enclosure of a heart-shape, wherein is shown a cow with green background for the earth and dark blue background for the sky. The cow in the appellant's label (Exh. A and Exh. B) is shown a little sidewards and her head towards the right side of the person seeing the same. In the defendant's labels Exh. E and Exh. G, the cow faces towards the left of the person seeing the label. Upon a perusal of the two labels side by side, the only similarity between the two appears to be that they consist of yellow, red, green and blue background and there is a cow shown in both the labels. Besides these facts, the two labels do not appear to bear any similarity. Upon a visual impression they appear to be quite dissimi
