The use of a deceptively similar trade mark infringes the registered proprietor's rights and is actionable.

( 1 ) THIS appeal is directed against the order dt. 2-7-1997 of District Judge, Raipur passed in Civil Suit No. 9b/1996 on an application for injunction under Order 39, Rules 1 and 2, C. P. C. prohibiting the appellants from manufacturing, marketing, using, transporting and selling their Whisky under the brand name of "cox DIPLOMAT PREMIUM WHISKY. "

( 2 ) THE respondents/plaintiff manufactures and sells Whisky under the registered trade mark "diplomat" as its brand. Its label and logo are also registered with the Registrar under the Trade and Merchandise Marks Act, 1958, since 1962. The defendants have started distilling Whisky and labelling it under the name and style of "cox DIPLOMAT WHISKY" their trade name and label are not registered with the registrar. The defendants/appellants claim to have moved the Registrar for registration of the same under the Trade and Merchandise Act. According to the plaintiffs the label and logo of the defendant's Whisky bottle is deceptively similar to that of plaintiffs' Whisky bottle.

( 3 ) THE trial Court observed that use of logo and print of similar size and of word "diplomat" on label by the defendants with printed figure of human being inside, make the label of the defendant's product deceptively similar to that of the plaintiffs and these factors are enough to grant the relief of temporary injunction in favour of the plaintiffs as a prima facie case is made out.

( 4 ) THE defendants (present appellants) pleaded that they were using label of "cox DIPLOMAT WHISKY" for a long period, that is as far back as that 1995. They applied to Excise Commissioner for approval of manufacture and sale of Whisky under this label. This was permitted by the Commissioner of Excise. The suit of the plaintiffs is allegedly delayed and barred by latches. It was also pleaded that the word 'diplomat' is a generic word in English Dictionary and is used in many products and also by the manufacturers of Whisky, particularly the first user of this word in relation to Whisky was by Mohan Meakinslimited who manufactured Whisky under the brand name of "mohan MEAKINS DIPLOMAT WHISKY". At best the plaintiffs/respondents may be a pirater of that name. The right of use which, if at all such rights existed, belonged MOHAN MEAKINS. The plaintiffs being themselves a pirater of this name cannot seek injunction against the defendants/appellant for prohibiting them from use of this name as part of brand name of their product.

( 5 ) THE contention of the defendants, however, did not find favour with the learned trial Judge and he passed the impugned prohibiting order.

( 6 ) LEARNED counsel for the appellants/defendants had advanced the same arguments before this Court also. It is worth noticing that it was far back as 6th October, 1962 that trade mark number 211697 was registered in the name of Mcdowell and Co. Limited, Madras-1, in respect of wine, spirit, liquor and whisky as "diplomat" by the Registrar of trade marks. It has been renewed from time to time. A copy of the certificate of registration is on record as Annexure E.

( 7 ) THE plaintiffs had pleaded the following comparative study of their infringed label and defendant's pirating label of Whisky : Label of plaintiffs' product Label of defendant's product (a) An yellowish coloured background (a) Yellowish coloured label with red border line (b) A red border line on the label (b) A logo with the impression CD in red colour. (c) The words Mcdewell's printed in red colour ( c) The word COX in red colour. (d) The mark DIPLOMAT is written on the top in black colour (d) The word DIPLOMAT is written in black and below the word DIPLOMAT, a photo of an Englishman in oval shaped framed with golden border (e) Below the trademark DIPLOMAT, a photo of an Englishman on oval-shape frame with golden coloured outline. (e) The words Premium Whisky is written in red colour. (f) The word 'whisky' is written in red.

( 8 ) A comparison of two labels on the two products clearl