Ltd. A Company Duly Incorporated Under vs Brihan Karan Sugar Syndicate Pvt. Ltd

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Shri S.P. Shah Advocate for Appellant.

Shri H.W. Kane Advocate with Shri Dinesh Y. Mali Advocate h/f. Shri. V.P. Raje Advocate for Respondent.

...

CORAM: A.I.S. CHEEMA, J.

DATE OF RESERVING JUDGMENT :5TH FEBRUARY,2014.

DATE OF PRONOUNCING JUDGMENT:26TH FEBRUARY, 2014.

JUDGMENT :

1. This Appeal from Order is filed by the

original Defendant of Regular Civil Suit No.1 of

2012 pending before the Court of District Judge,

Amalner. The Respondent-original Plaintiff has

filed the Suit for permanent injunction, damages,

accounts and other reliefs, for infringement of

copy right under the Copyright Act, 1957 and for

passing off under the Trade Marks Act, 1999

("Copyright Act" and "Trade Marks Act" in brief).

The District Judge has granted temporary

injunction in favour of Plaintiff, restraining the

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Defendant from using, printing or publishing the

impugned label, Annexure C attached to the Plaint,

during the pendency of the Suit. Thus, this

Appeal. I will refer to the Appellant as Defendant

and Respondent as Plaintiff, the way in which they

are arrayed before the trial Court.

2. In brief, the dispute is that the parties

are manufacturers of country liquor. Plaintiff

manufactures country liquor from sugar cane

molasses. Defendant manufactures the same from the

food grains. Plaintiff has been marketing its

product under the brand name "Tango Punch", while

Defendant is marketing its product under the brand

name "Nimbula Punch". Plaintiff claims that its

label of "Tango Punch" is copyrighted and the

Defendant is trying to pass off its product as if

the same is of the Plaintiff.

3. I have heard learned counsel for both

sides. Before considering the arguments on facts

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of the matter, brief reference needs to be made to

the points of law involved and which have been

argued by the learned counsel for both sides.

4. Learned counsel for Appellant-Defendant

referred to the case of M/s. S.M. Dyechem Ltd.

vs. M/s. Cadbury (India) Ltd., A.I.R. 2000 Supreme

Court 2114(1), where (in Para 35), it was

observed as under:-

"35. It appears to us that this Court did not have occasion to

decide, as far as we are able to see, an issue where there were also

differences in essential features nor to consider the extent to which the differences are to be given importance over similarities. Such a

question has arisen in the present case and that is why we have referred to the principles of English Law relating to differences in essential features which principles in our opinion, are

equally applicable in our country."

. According to the learned counsel for

Defendant, if in the present matter the label of

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the Plaintiff is compared with the label of the

Defendant, there are many differences and looking

to the differences, there was no case made out by

the Plaintiff for injunction.

5. Learned counsel for Respondent-Plaintiff

however, referred to the case of Cadila Health

Care Ltd. vs. Cadila Pharmaceuticals Ltd. A.I.R.

2001 Supreme Court 1952(1), where Larger Bench of

the Hon'ble Supreme Court over-ruled above view

expressed in the case of M/s. S.M. Dyechem Ltd.

(supra). In the matter of Cadila Health Care,

the proceedings arose from the Suit for injunction

filed by Appellant against the Respondent in

District Court at Vadodara. The Suit related to

medicine being sold under the brand name

"Falcitab" by the Respondent, which according to

the Appellant was a brand name similar to the drug

being sold by the Appellant under the brand name

"Falcigo". The Appellant (before the Hon'ble

Supreme Court) had, after introduction of the drug

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in 1966, applied to the Trade Marks Registry,

Ahmedabad for registration of the same. The Drugs

Controller General had granted permission to the

Appellant to market the drug under the trade mark

"Falcigo". The Appellant therein had started the

manufacture and sale of drug of "Falcigo" since

1996. In April, 1997 Drugs Controller General

permitted the Respondent company to manufacture

drug containing "Mefloquine Hydrochloride" and

permitted the Respondent to import the drug.

Respondent marketed the drug under the trade mark

of "Falcitab". Thus, the Suit came to be filed.

Judgment in the matter of "M/s. S.M. Dyechem Ltd."

came to be considered. The Hon'ble Supreme Court

observed in Para 18 as under:-

"18. We are unable to agree with the aforesaid observation in

Dyechem's case (supra) as far as this Court is concerned, the decisions in the last four decades have clearly laid down that what has to be seen in the case of a passing off action is the similarity between the competing marks and to determine

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whether there is likelihood of

deception or causing confusion. This is evident from the decisions of this Court in the cases of National

Sewing Thread Co. Ltd.'s case (AIR 1953 SC 357) (supra), Com Products Refining Company's case (AIR 1960 SC

142) (supra), Amritdhara Pharmacy's

case (AIR 1963 SC 449) (supra), Durga Dutt Sharma's case (AIR 1965 SC 980) (supra), Hoffmann-La Roche and Co. Ltd.'s case (AIR 1970 SC 2062) (supra). Having come to the

conclusions, in our opinion, incorrectly, that the difference in

essential features is relevant, this Court in Dyechem's case (supra) sought to examine the difference in

the two marks "Piknic" and "Picnic".

It applied three tests, they being

1) is there any special aspect of common feature which has been

copied? 2) mode in which the parts are put together differently i.e.

whether dissimilarity of the part or parts is enough to make the whole thing dissimilar and 3) whether when there are common elements, should one not pay more regard to the parts

which are not common, while at the same time not disregarding the common parts? In examining the marks, keeping the aforesaid three tests in mind, it came to the

conclusion, seeing the manner in which the two words were written and the peculiarity of the script and concluded that "the above three dissimilarities have to be given more importance than the phonetic similarity or the similarity in the

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use of the word PICNIC for PIKNIK".

. In Para 35 the observations were :-

"35. Broadly stated in an action for

passing off on the basis of unregistered trade mark generally for deciding the question of deceptive similarity the following factors to be considered:

a) The nature of the marks i.e.

whether the marks are word marks or label marks or composite marks, i.e. both words and label works.

b) The degree of resembleness between the marks, phonetically similar and hence similar in idea.

c) The nature of the goods in

respect of which they are used as trade marks.

d) The similarity in the nature, character and performance of the

goods of the rival traders.

e) The class of purchasers who are likely to buy the goods bearing the marks they require, on their

education and intelligence and a degree of care they are likely to exercise in purchasing and/or using the goods.

f) The mode of purchasing the goods or placing orders for the goods and

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g) Any other surrounding circumstances which may be relevant in the extent of dissimilarity

between the competing marks.

Weightage to be given to each of the aforesaid factors depends upon facts

of each case and the same weightage cannot be given to each factor in every case."

. Thus, Hon'ble Supreme Court inter-alia

found that the similarity in nature, character and

performance of the goods is a relevant factor.

6. Learned counsel for Respondent-Plaintiff

referred to the case of Pidilite Industries Ltd.

vs. S.M. Associates and others, 2004(28) PTC 193

(Bom). It was a matter where the Plaintiff brought

Suit to restrain Defendant from infringing its

copyright in its artistic work and its registered

trade mark "M-Seal" and for passing off. In that

matter, this Court had examined the two works. The

product of Plaintiff was being marketed under the

label "M-Seal" and Defendant started marketing

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similar product under the mark "SM-Seal". In

para 41 it was observed that, if the two marks are

seen as a whole, it is clear that there is a

likelihood of confusion or deception in view of

the similarity between the two. The essential

features of the two marks are very similar. It was

found that Defendant's use of the impugned mark

was causing confusion and deception as to the

origin of the goods. The mark of the Defendant had

incorporated the essential and substantial

features of the Plaintiff's work. Consequently, it

was found that the case of the Plaintiff that

front face of Defendant's carton infringe the

copyright of Plaintiff was well founded.

7. Learned counsel for the Respondent-

Plaintiff referred to the unreported Judgment in

the matter of Deccan Bottling & Distilling

Industries Private Limited vs. Brihan Maharashtra

Sugar Syndicate Limited - Appeal from Order No.76

of 2008, dated 19th September, 2008. That was the

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matter where dispute arose between the parties

regarding use of labels of "Sakhu Santra" and

"Paro Santra", both, country liquor products. In

that matter, this Court had referred to various

Rulings relevant to matter of present nature and

it was concluded in Para 10 as under:-

"10. The principle emerging broadly

from the number of Judgments cited supra is that marks must be compared as a whole to ascertain as to

whether in totality the mark objected to is likely to cause deception or confusion in the minds of persons accustomed to the

existing trade marks. The Court would consider impression of a

person of an average intelligence and imperfect recollection. A very close microscopic examination of two marks for ascertaining alleged deceptive similarity may not be

adopted. There need not be actual deception or confusion and that only likelihood is sufficient. Keeping two trade marks side by side for comparison and for close examination

would also not be a sound test. The Court will have to consider probable effect on minds of ordinary people. It is not necessary that deception shall be intended to cause such confusion."

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8. In another litigation relating to use of

such labels on country liquor bottle, in

unreported Judgment dated 13th August, 2007, in the

matter of M/s. 7 Stars Distilleries vs. Brihan

Maharashtra Sugar Syndicate Ltd., Appeal from

Order No.38 of 2007, after considering the case

law concerned, it was observed in Para 12 as

under:

"12................................. The product in question i.e. country liquor being consumed mostly by lower strata of society. The effect

of the label on such consumers would, therefore, have to be

considered. The trial Court on the basis of comparison of the labels reached the conclusion that the general scheme of the colour of both

the labels is the same. The words "Deshi Daru" and "Premium" are appearing to be identical. The words on the label being in the background of the picture of orange. The similarity in both the labels

according to the trial Court was sufficient to confuse an illiterate or labour class consumer of country liquor. The trial Court applied the tests known to law; and reached a conclusion that if the said tests are applied then the impression

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could be created in the mind of a

person that the original label of the Plaintiff and the impugned label of the defendant are deceptively

similar. In my view, the finding of the trial Court that a prima facie case has been made out for the grant of temporary injunction on the basis

of infringement of trade mark and passing off action cannot be faulted with. The trial Court also has come to a conclusion that though the word 'Rambo' appears in the label of the

respondent Plaintiff and the word 'Tango' appears in the impugned

label, there is phonetic similarity in them. Though alphabetically the word 'Rambo' is different from word

'Tango' but while pronouncing the words 'Rambo' and 'Tango' phonetically they would sound same. The important aspect to be

considered that the country liquor is mainly purchased and consumed by

class of people who are not in position to carefully look into and identify small distinguishing points in the products. This aspect has been rightly considered by the trial

Court while considering the issue of deceptive similarity. In my view, minor points of difference here and there would not absolve the defendant."

9. Learned counsel for the Plaintiff

referred to the Plaint pleadings. It is mentioned

in Para 2 that Mr. Kanyalal Kimatram Kalani is

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the director and authorized signatory of the

Plaintiff company. It is mentioned in Para 5 of

the Plaint that erstwhile registered owner of the

copyright/label "TANGO PUNCH" was a company called

as M/s. Brihan Maharashtra Sugar Syndicate Ltd. In

2001 Shri Kanyalal Kimatram Kalani created and

designed for and on behalf of the M/s. Brihan

Maharashtra Sugar Syndicate Ltd. for valuable

consideration, an original artistic trade mark

label inter-alia containing the words "TANGO

PUNCH" along with the device of a lemon. Plaint

Para 6 mentions that the said company vide date of

assignment, assigned the artistic copy work of the

said label to Plaintiff. Plaint Para 7 refers to

Plaintiff changing the name of license holder upon

the trade mark label "TANGO PUNCH" which is being

used by the Plaintiff. Plaint Para 8 mentions that

the owner of trade mark label "TANGO PUNCH" had

secured registration of the copyright in the said

artistic trade mark label under No.A-63544/2003,

dated 19th February, 2003.

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10. Learned counsel for Plaintiff then

referred to the Written Statement filed by the

Defendant, where Defendant with reference to the

contents of Para 5 and 6 of the Plaint mentioned

that it has no concern with the same and hence

Defendant was offering no comments. Even with

regard to Plaint Para 7, Defendant referred to

approval to Plaintiff from Commissioner of State

Excise and changing the name of license holder and

added that the same has no concern with the

Defendant and hence no comments. Learned counsel

pointed out that the Written Statement did not

offer any reply to contents of Plaint Para 8

dealing with registration of TANGO PUNCH under the

Copyright Act. Plaint Para 9 dealing with

Plaintiff popularizing the label between 2008 to

2012 and spending huge amount for the same and

Plaint Para 10 claiming that Plaintiff has

exclusive right to publish, reproduce and use the

artistic label are not denied in Written

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Statement. Learned counsel referred to the Written

Statement to say that the averments of above

Plaint Paragraphs were not referred to even

formally deny the same. Thus, according to the

learned counsel, these facts must be treated as

undisputed.

11. Learned counsel for Defendant submitted

that even if the Defendant did not specifically

deny that the label had been registered under the

copyrights, still the Plaintiff was bound to prove

that he has a copyright in his favour. I find that

there is no substance in the submission when the

pleadings are not denied. Even otherwise, the

Plaintiff has kept on record copy of certificate

issued by Registrar of Copyrights dated 6th March,

2013, stating that there is copyright regarding

the concerned label and that name of Plaintiff has

been entered in the register of copyrights with

regard to the concerned label. When there is no

specific denial in the pleadings on these counts,

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the argument of learned counsel for Plaintiff

needs to be accepted. It has to be held that

copyright of the label Annexure B of the Plaint is

with the Plaintiff and that Plaintiff has spent

substantial amounts to make the label popular.

12. Learned counsel for Defendant submitted

that there were many dissimilarities between label

Annexure B of the Plaintiff and label Annexure C

of the Defendant. According to him, it cannot be

said that the labels are deceptively similar. It

has been argued that Plaintiff is selling country

liquor under the label of "Tango Punch" whereas

the Defendant is selling the same under the label

of "Nimbula Punch". Although both of the products

are country liquors, but Tango Punch of Plaintiff

is prepared from sugar cane molasses while Nimbula

Punch of Defendant is made from food grains. The

names are dissimilar and persons purchasing such

products cannot get deceived. The learned counsel

stated that if the labels are juxtaposed in front

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of each other, the differences are apparent. It

was argued that even the trial Court in Para 17 of

the impugned order noticed that there were

phonetic and other differences but still wrongly

concluded that there was likelihood of deception

of persons purchasing the goods.

13. Per contra, learned counsel for Plaintiff

referring to the Rulings discussed above, argued

that it is not the differences, but similarities

which are to be seen. According to him, the two

labels cannot be juxtaposed in front of each other

to see as to what are the differences. According

to him, buyers specially of product like country

liquor, are persons from the lower strata of

society, many of whom are illiterate and such

consumers have imperfect memory and if without

keeping the labels side by side, there is

likelihood of the purchaser getting confused, it

must be held that the labels are deceptively

similar. Learned counsel referred to similarities

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drawn by the Plaintiff in Para 14 of the Plaint,

between the two labels, which are as under:-

SR. SIMILARITIES BETWEEN NO.

Plaintiff's label at Defendant's label at Annexure "B" Annexure "C"

1 It is an oval shape It is an oval shape label. label.

2 It has green colour It has green colour background signifying background signifying

lemon. lemon.

3 Within the device of Within the device of lemon, the words "Deshi lemon, the words "Deshi

Daru" in Devnagri script Daru" in Devnagri and in black colour were script and in black appearing at the top of colour were appearing the label. at the top of the label.

4 And below the said words And below the said appeared the words "TANGO words appeared the

PUNCH" also in Devnagri words "NIMBULA PUNCH"

script but in violate also in Devnagri script colour. but in red colour. 5 Below it appeared the Below it appeared the

words " mleGhP;k e|kdkZr fyackpk d`f=e words "mPp izrhP;k /kkU;kP;k e|kdkZr Lokn fyacpw k d`f=e Lokn ?kkywu r;kj dsysyh"

?kkywu r;kj dsysyh S 6 And below that " fdjdksG fodzhph And below that " fdjdksG deky fdaer fodzhph deky fdaer

#-28-80 ¼ loZ dj o 'kqYd lfgr] fodzhdj oxGwu ½ #-27-90 ¼ loZ dj vkf.k 'kqYd lfgr½ QDr egkjk"Vªke/;s fodzhlkBh-

7 The name and address of Below that name and the Plaintiff appeared at address of the the bottom of the label. Defendant appeared and at the bottom of the label appeared the words QDr egkjk"Vª jkT;kr fodzhdfjrk

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8 The cap of the bottle is The cap of the bottle

in violate and white is in violate and white colour combination colour combination

14. Thus, according to the learned counsel,

keeping the ratio as drawn from the various

Judgments, the Defendant has been rightly

restrained by the learned trial Court.

15. Learned counsel for Plaintiff submitted

that the label of Plaintiff is registered under

the copyright and Section 14 of the Copyright Act

states as to what is the meaning of copyright. The

portions relevant, referred to by the learned

counsel for Plaintiff may be reproduced:-

"14. Meaning of Copyright.- (1) For the purposes of this Act, "copyright" means the exclusive

right, subject to the provisions of this Act, to do or authorise the doing of any of the following acts in respect of a work or any substantial part thereof, namely:-

(a)..............

(b)............

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(c) in the case of an artistic

work, -

(i) to reproduce the work in any material from including depiction in

their dimensions of a two dimensional work or in two dimensions of a three dimensional work;

..................................."

16. Thus, according to the learned counsel

the copyright would include acts in respect of

work or any "substantial part thereof" and with

reference to the artistic work reproduction of the

work in any material form would be relevant.

According to the learned counsel, when the

Plaintiff has the copyright of the label,

copyright would be infringed as stated in Section

51 of the Copyright Act and the Plaintiff would be

entitle for injunction in terms of Section 55 of

the Copyright Act. It is the submission of learned

counsel for Plaintiff that the Defendant is trying

to pass off his product as if the same is of the

Plaintiff, by using deceptively similar label of

which the Plaintiff has the copyright. Learned

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counsel placed reliance on Section 27(2) of the

Trade Marks Act, 1999. The Section reads as

under:-

"27. No action for infringement of unregistered trade mark-

(1).................................

(2) Nothing in this Act shall be

deemed to affect rights of action against any person for passing off

goods or services as the goods of another person or as services provided by another person, of the

remedies in respect thereof."

. Relying on the sub-section 2 of Section

27 of the Trade Marks Act, learned counsel

submitted that even if the trademark was

unregistered, even in that case common law rights

of trade mark owners to take action against any

person for passing off goods as the goods of

another person is saved and such action is

maintainable. Section 2(h) of the Trade Marks Act

mentions that a mark shall be deemed to be

deceptively similar to another mark if it so

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nearly resembles that other mark as to be likely

to deceive or cause confusion.

17. It has been argued by the learned

counsel for Defendant that Plaintiff did not

approach the Court with clean hands, as while

filing the Suit, the Plaintiff did not refer to

the order of Excise Commissioner dated 12th July,

2010, where the Excise Commissioner, inspite of

objection raised by the Plaintiff, had cleared the

use of the disputed label in favour of the

Defendant. The learned counsel relied on the case

of Harcharanjit Singh Thind (Capt.) vs. Deeksha

Thind and others, 2008(3) Mh.L.J. Page 587, to

submit that the Plaintiff suppressed material

facts and so discretionary relief should not have

been granted in favour of the Plaintiff.

18. To counter the above submissions, learned

counsel for Plaintiff submitted that the

jurisdiction of the Excise Commissioner for

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considering permission to use such labels is in a

limited sphere. According to the counsel, when the

Excise Commissioner approves such label, Excise

Commissioner does not enter into the questions of

copyrights or trade marks. Learned counsel

referred to document marked Exhibit 1 filed with

affidavit in reply of Respondent, dated 16th

September, 2013 and pointed out that in another

similar case where label was approved by the

Excise Commissioner, the same was approved subject

to standard terms and conditions in which

Condition No.2 specified that the person to whom

the label is approved, would be responsible

regarding violation of copyright etc. According to

the learned counsel, similar terms and conditions

must have been conveyed to the Defendant also but

Defendant had not produced that document and is

relying only on the order concerned. According to

the learned counsel, whatever decision the Excise

Commissioner may take, it does not affect and so

is irrelevant to the right of Plaintiff to

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challenge violation of its copyright which is an

independent civil right and merely because the

order of Excise Commissioner was not referred, it

does not mean that the Plaintiff is not with clean

hands.

19. Learned counsel for Plaintiff submitted

that although the label got approved by the

Defendant from Excise Commissioner on 12th July,

2010, as mentioned in the Plaint Para 11, the

Plaintiff learnt in November, 2011 that Defendant

has introduced the country liquor, under the

closely similar trade mark label and was

infringing the Plaintiff's copyright and thus the

Plaintiff brought the Suit in January, 2012.

According to the learned counsel, Defendant has

not shown as to since when Defendant started using

the label and thus according to learned counsel it

was not necessary for the Plaintiff to challenge

the approval given by the Excise Commissioner and

when its copyright got infringed, Plaintiff filed

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the Suit.

20. I do not find that non-reference to the

order of the Excise Commissioner is something

which should dis-entitle the Plaintiff from its

copyright being violated. Merely because the

concerned fact was not referred, does not make the

Suit mala fide.

21. Learned counsel for the Plaintiff relied

on the case of Wander Ltd. And another vs. Antox

India P. Ltd., reported in 1990(Supp.) Supreme

Court Cases, 727. That was the matter under the

Trade and Merchandise Marks Act, 1958, where

temporary injunction order had been passed. The

Division Bench of High Court had, in appeal,

reversed the order passed by the learned Single

Judge who was trying the Suit. In this context,

the Hon'ble Supreme Court in Para 14 observed as

under:-

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"14.................................

In such Appeals, the appellate Court will not interfere with the exercise of discretion of the Court of first

instance and substitute its own discretion except where the discretion has been shown to have been exercised arbitrarily, or

capriciously or perversely or where the Court had ignored the settled principles of law regulating grant or refusal of interlocutory injunctions. An appeal against

exercise of discretion is said to be an appeal on principle. Appellate

Court will not reassess the material and seek to reach a conclusion different from the one reached by

the Court below if the one reached by that Court was reasonably possible on the material. The appellate Court normally would not

be justified in interfering with the exercise of discretion under appeal

solely on the ground that if it had considered the matter at the trial stage it would have come to a contrary conclusion. If the discretion has been exercised by the

trial Court reasonably and in a judicial manner the fact that the appellate Court would have taken a different view may not be justify interference with the trial Court's

exercise of discretion."

22. Learned counsel submitted that applying

above principles, the present impugned order will

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have to be considered and if the same cannot be

held to be arbitrary or capricious or perverse,

this Court should not interfere in the concerned

impugned order to substitute its discretion over

what has been found by the trial Court.

23. Keeping the above observations of the

Hon'ble Supreme Court in view, if the impugned

order is perused, it can be seen that the trial

Court in the temporary injunction order found that

Plaintiff has got the copyright of the label. The

trial Court considered the rival arguments and in

Para 17 of the order, compared the labels and

found that both the labels are oval shape and that

in the label of Plaintiff there is half cut lemon

covering entire label as the background wall,

while the label of Defendant has half cut lemon in

upper half portion of the label and on lower side,

glass is shown and at the bottom again half cut

lemon shown. It was observed that even if the

trade names differed, Defendant had used oval

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shape label showing half cut lemon in upper

portion so also at the bottom and again half cut

lemon, which is similar in both the labels and

therefore there was likelihood of deception of

persons purchasing the goods. The trial Court even

though found that there was dissimilarity in the

words "Tango Punch" and "Nimbula Punch", but

observed that still it could not be said that the

labels are not deceptively similar. Trial Court

relied on the observations of this Court in the

matter of Tata Tea Limited vs. Suruchi Tea

Company and another, 2003 Vol. 105(3) Bom. L.R.

Page 241 and extracted observations to the effect

that the effort of the Court has to be not to

compare the two marks with a view to notice the

difference between them, but to consider the over

all impact. On the basis of such observations in

the said Judgment, trial Court held that both the

marks are deceptively similar and are likely to

deceive or cause confusion. The trial Court

clearly held that Annexure C mark of Defendant

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was similar to the mark of Plaintiff, which was

registered. Trial Court also held that only

because the Commissioner of Excise had permitted

the Defendant to use the label would not mean that

it empowers the Defendant to use mark against the

provisions of Copyright Act. For such reasons, the

trial Court found that there was prima facie case

in favour of the Plaintiff.

24. I have gone through the record and rival

arguments as well as the impugned order. I do not

find that there is any reason for me to substitute

my views over what has been found by the trial

Court, as the findings are appearing to be

justified from the record and could not be said to

be perverse, arbitrary or capricious. Even

otherwise, on merits of the matter, from material

available, prima facie, I find that Defendant's

label is deceptively similar and goods of

Defendant can pass of as those of Plaintiff

looking to nature of goods, that is country

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liquor; resembleness between the marks; class of

purchasers and mode of purchasing such goods at

shops or in hotels and bars.

25. Trial Court also considered the question

of balance of convenience and observed that the

Defendant is selling country liquor under

deceptively similar mark and how much liquor

Defendant would sell during pendency of the Suit,

cannot be estimated and so loss of Plaintiff

cannot be calculated. For such reasons, the trial

Court found that balance of convenience lies in

favour of Plaintiff as how much loss Plaintiff

will suffer is unpredictable. Thus, the trial

Court found that the balance of convenience was in

favour of the Plaintiff and Plaintiff was likely

to suffer irreparable injury if the injunction is

not granted. I do not find any reason to interfere

in the impugned order.

26. Learned counsel for Plaintiff had fairly

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submitted before the arguments started that

instead of deciding the case at interlocutory

stage, it would be appropriate if the Suit itself

is expedited. This was resisted by the learned

counsel for Defendant, claiming that he would not

mind Suit being expedited, provided the temporary

injunction order passed in favour of the Plaintiff

is vacated. Learned counsel for the Plaintiff

relied on the case of Bajaj Auto Limited vs. TVS

Motor Company Limited, (2009) 9 Supreme Court

Cases 797, where it was observed that cases

relating to copyright, trade marks and patents

remain pending for years and litigation is mainly

fought on temporary injunctions. In that matter

although the Hon'ble Supreme Court heard arguments

of both sides but was of the opinion that instead

of deciding the case at interlocutory stage, the

Suit itself should be disposed of finally.

. Keeping the above observations of the

Hon'ble Supreme Court in view, it would be

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appropriate to direct that the Suit should be

expedited, specially when Written Statement is

already filed and issues could be framed.

27. Observations made regarding facts in this

Judgment are on the basis of prima facie case as

appearing from record.

28.

There is no substance in the Appeal From

Order. The Appeal From Order is dismissed with

costs. The Suit is expedited. The Trial Court to

make efforts to dispose of the Suit at the

earliest, preferably within SIX MONTHS.

[A.I.S. CHEEMA, J.]

asb/FEB14

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