Marico Limited vs G.P.L. Oil Company & Anr

The Court : The present suit being C.S. No.69 of 2011 filed by

Marico Limited, is for injunction against infringement of Trademark,

passing off and infringement of copyright. The defendants entered

appearance at the interlocutory stage but did not file any written

statement to contest the suit. Record reveals that on 24th November,

2016 Hon'ble Justice Shivakant Prasad passed an order directing the matter to appear under the heading 'undefended suit'. After 24th

November, 2016 matter appeared in the list on 5th December, 2016,

20th December, 2016, 17th January, 2017, 13th February, 2017, 3rd

April, 2017, 11th May, 2017 and 20th June, 2017. But no attempt was

made by any Advocate to represent the defendants.

The fact of the case in a nutshell is as follows :-

a) That the plaintiff is well-known manufacturer and trader of

coconut oil, hair oil, perfumed hair oil and/or allied

products. Its products are being sold in market under

various reputed trade names like NIHAR, SAFFOLA,

MEDIKAR, PARACHUTE as more fully and particularly

described in paragraph 5 of the plaint.

b) Plaintiff has sought to make out a case that on or about 17th

February, 2006, M/s. Hindustan Lever Limited, the

predecessor-in-interest of the plaintiff, pursuant to the

execution of a Deed of Assignment (Ext. A and B),

transferred, assigned and conveyed all its right, title and

interest and property whatsoever in the Trademark 'NIHAR',

for valuable consideration to the plaintiff.

c) The said Deed of Assignment would reveal that prior to

Hindustan Lever Limited, the mark 'NIHAR' belonged to the

TATA Group (formerly known as TOMCO) at least since

1994. Since 1994, Hindustan Lever Limited had been

manufacturing and marketing coconut oil, inter alia, under

the brand name 'NIHAR'. The plaintiff became the owner of the Trademark 'NIHAR' with its goodwill in India by virtue of

the aforesaid assignment dated 17th February, 2006.

d) Prior to such assignment, Hindustan Lever Limited, the

predecessor-in-interest of the plaintiff, obtained the

registration of the Trademark 'NIHAR' (both word and label)

in class 42 in order to protect its interest over the said

Trademark 'NIHAR' under the provisions of the Trademarks

Act, 1999. The plaintiff had also obtained the registration of

the label 'NIHAR' in class 29 under the provisions of the

Trademarks Act, 1999 (Ext. C) collectively being the

registration certificates.

e) It has been claimed by the plaintiff that by virtue of the said

Deeds of Assignments plaintiff became the proprietor and

owner of the Trademark 'NIHAR' and the copyright in the

artistic work in connection therewith. However, plaintiff filed

applications for change of name in respect of registered

Trademark 'NIHAR' under class 42 bearing Registration

No.1241348 dated 5th October, 2007 and 636900 dated 24th

June, 2009 respectively in Form TM - 24 before the

Trademark registry (Ext. C) collectively being the Form TM -

24.

f) According to the plaintiff, it has advertised extensively in the

Television channels about its products and the same has

become a household name in India. The plaintiff has commissioned several leading advertising agencies to release

the plaintiff's product commercially and advertised in the

Television as well as print media.

g) The said brand of coconut oil is of the highest quality and

the colour scheme and get up being the substantial features

of the packets, cartons, labels, bottles and jars, have

become distinctive and have been exclusively associated

with the products of the plaintiff and no one else.

h) Pursuant to distinctiveness of the label which has been

exclusively designed and adopted by the plaintiff, it has a

right to protect the trade dress as against unauthorized use.

i) Pursuant to distinctiveness of the bottles and labels which

are exclusively designed and adopted by the plaintiff, it has

right to protect the mark and trade dress against

unauthorized users. The label used by the plaintiff has been

shown at Annexure 'B' to the plaint.

j) According to the plaintiff, due to extensive use,

advertisement and sales in the market, the product of the

plaintiff under the Trademark 'NIHAR', has acquired

goodwill and reputation in the market and the Trademark

'NIHAR' has become a 'well-known Trademark'.

k) In or about second week of March, 2011, plaintiff came to

learn for the first time that the defendant no.1 was making

and selling coconut oil in bottles of various shapes and sizes, inter alia, in 40 ml, 45 ml and 100 ml bottles having

its own get up and colour scheme which is "deceptively

similar" to the trade dress of the plaintiff in respect of

'NIHAR' coconut oil and/or a colourable imitation therewith.

On enquiry, the plaintiff came to learn that defendant no.1

is a firm and the defendant no.2 is the person-in-charge of

the affairs of the said firm and/or is an alter-ego of the said

firm.

l) Defendant no.2 described himself to be a manufacturer of

coconut oil and was claiming that defendant no.1 was his

concern. From the information available to the plaintiff, all

business decisions in respect of defendant no.1 firm, were

taken by the defendant no.2. Defendant nos.1 and 2 were

processing, packaging, marketing and selling coconut oil

under the mark 'NIHAR'. Plaintiff came to learn that the

defendants were making and selling coconut oil with the

mark 'NIKHAR' in various parts of Bihar, Jharkhand and

West Bengal, both within and outside the ordinary original

civil jurisdiction of this Court. In some of the bottles bearing

the mark 'NIKHAR', the product is alleged to be processed by

the defendant no.1 and in some bottles the product is

alleged to have been packed by the defendant no.1.

m) From the enquiry made by the plaintiff it was found that the

products were also manufactured by defendant no.1 within

the aforesaid jurisdiction. It is also the claim of the plaintiff that the name and address of the manufacturer and other

requisite various details of the product are not being

displayed by the defendant in the bottles in violation of

various statutory regulations.

n) The bottles in which coconut oil is being sold by the

defendant, bearing word 'NIKHAR', are identical in shape,

size and colour with the bottle in which the products of the

plaintiff are also sold bearing the mark 'NIHAR'.

o) The bottles of the defendant bearing the word 'NIKHAR' are

of transparent bottles with slight curvature in the middle

and have a green cap (except the 50 ml bottle of the

defendant having a flip top cap instead of screw cap). The

word 'NIKHAR' is also printed in deep green with a golden

border and the said word is written in a particular font

which is similar to the way 'NIHAR' is written and in an

elliptical background.

p) In the label of the defendants, below the word 'NIKHAR' the

word 'Naturals' is printed in deep green and in italics and

below the said word 'Naturals', there is a golden line

segment with two leaves in deep green across such line. As

the case of the plaintiff's label, the defendants' impugned

label also has got a prominent stroke of green colour from

left hand side top towards the bottom right side. There are

Jasmine flowers printed in white scattered in the said label of the defendants. A picture of a woman appears in the said

label and the word 'JASMINE' is printed in white against a

coloured background.

q) The predominant colour of the label of the defendants is two

shades of green, one light and the other dark. On the

reverse of the bottle various particulars of the product are

printed in green with the word 'NIKHAR' appearing at the

top.

r) The impugned label of the defendants would appear from

Annexure 'G' to the plaint.

In such circumstances the plaintiff filed the suit praying

necessary reliefs.

Plaintiff also filed an interlocutory application being G.A. No.999

of 2011 before this Hon'ble Court which passed an interim order on

4th April, 2011 to the following effect :-

"d) injunction restraining the respondents and each one of

them whether by themselves or of their servants, agents and

assigns or otherwise howsoever from infringing or caused to

infringe or enabling others to infringe the Trademark

'NIHAR' of the petitioner for any other mark which is of

substantial reputation or colourable imitation therewith;

e) injunction restraining the respondents and each one of

them whether by themselves or by their servants, agents or

assigns or otherwise howsoever from selling or offering for sale or marketing 'NIKHAR' coconut oil in any manner

whatsoever or in any way using the impugned label

contained in Annexure 'J' herein or any colourable imitation

therewith;"

At the interlocutory stage this Hon'ble Court also appointed a

Receiver in terms of Prayer 'A' of the petition with authority to enter

into the business premises of the defendants, take custody of the

infringed goods and make an inventory. The said order dated 4th

April, 2011 appears at page 153 and 154 of the Judges Brief of

Documents. While passing the aforesaid order dated 4th April, 2011,

this Hon'ble Court observed that the plaintiff is the registered

proprietor of the mark 'NIHAR' in respect of hair oil. The design of the

plaintiff's plastic bottles and the get up appears to have been

substantially copied by the first defendant, 'NIKHAR' brand of light

perfumed oil. Although, the defendants appeared at the interlocutory

stage, but such observation appeared not to have been challenged in

appeal. By a subsequent order dated 12th July, 2011, the said order

dated 4th April, 2011 (ex parte) was confirmed holding, inter alia, "the

defendants have also agreed that the defendants will not use the

labels that have been impugned in the present proceedings. The

defendants have filed an affidavit disclosing a new label that the

defendants proposed to use and the defendants seek approval of the

Court in such regard. The plaintiff asserts that since the suit relates

to the impugned labels of the defendants and their resemblance to

the plaintiff's label, the Court should refrain from going beyond the scope of the suits to specifically approve of label and the defendants

said that they will now use."

In support of the plaint case Ms. Ekta Sarin, legal Manager of

the plaintiff company, has deposed on behalf of the plaintiff on 21st

July, 2017. In order to prove the plaint case the witness has

produced the following documents those have been marked as

Exhibits :

Ext. A - this is a Deed of Assignment for Trademark by and

between Hindustan Lever Limited (Assignor) and Marico Limited, the

plaintiff (Assignee).

Ext. B - Deed of Assignment for copyrights for India by and

between Hindustan Lever Limited (Assignor No.1) and Unilever India

Exports Limited (Assignor No.2) and Marico Limited (Assignee - the

plaintiff).

Ext. C - collectively - Trademark registration and renewal

certificate (three certificates in all) with photocopy of Form TM - 24

and Deed of Assignment for Trademark.

Ext. D - collectively being Notarized certificate under Section

65B of the Indian Evidence Act, 1872 together with print out invoice.

Ext. E - collectively Notarized certificate under Section 65B of

the Indian Evidence Act, 1872 together with photocopies of

advertisements.

Ext. F - collectively certificates of Chartered Accountants.

The witness has confirmed in the box that Trademark 'NIHAR'

is a registered one. She has also proved the Trademark registration and renewal certificates on DOC (Ext. C collectively). In answer to

question no.103, the witness has identified the photograph of the

product as 'NIHAR Naturals' being the photograph at Annexure 'B' to

the plaint which is the trade dress of the plaintiff. In answer to

question no.104, the witness has also deposed that the said

photograph being Annexure 'B' to the plaint, is of 2011. She has

further deposed that she has used that particular label in 'NIHAR

NATURALS' product. The witness in the box confirmed in answer to

question no.118 that identical mark 'NIKHAR' appears in the label of

the defendants in place of 'NIHAR'. In question no.119, she deposed -

"The defendants' label also has a green cap. Nikhar is written in

a similar manner on the top portion of the label like Nihar. The flowers

are on this as well. The colour combination is green and white. The

picture of the lady lies in a similar position on the bottle."

The unchallenged testimony of the plaintiff based on the

exhibits of this case clearly establishes the case made out in the

plaint. It establishes that the defendants have infringed the registered

Trademark of the plaintiff 'NIHAR' thereby deceiving unwary

customers of knowledge, intelligence and imperfect recollection; the

products of the defendants are deceptively similar to that of the

plaintiff and are similar to the trade dress of the plaintiff; the

defendants are using the mark 'NIKHAR' in continuation with the

trade dress including the design, layout, colour scheme and get up

which are deceptively similar to the trade dress of the plaintiff bearing

the mark 'NIHAR'. The mala fide object of the defendants is to deceive and confuse the consumers and to pass off the product of the

defendants as those of the plaintiff.

The mark 'NIHAR' is registered in class 29 in favour of the

plaintiff. Said mark is also registered in favour of Hindustan Lever

Limited under class 42. Application for change of name in TM - 24

form appears to be pending and thus, there is no doubt that the

present action of the plaintiff with regard to infringement is

maintainable.

Sections 27, 28, 29 and 31 of the Trademarks Act, 1999 are

relevant for the present purpose and the same are set out below :

"27. No action for infringement of unregistered trade mark.--(1) No person shall be entitled to institute any proceeding to prevent, or to recover damages for, the infringement of an unregistered trade mark.

(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, or the remedies in respect thereof.

28. Rights conferred by registration.--(1) Subject to the other provisions of this Act, the registration of a trade mark shall, if valid, give to the registered proprietor of the trade mark the exclusive right to the use of the trade mark in relation to the goods or services in respect of which the trade mark is registered and to obtain relief in respect of infringement of the trade mark in the manner provided by this Act.

(2) The exclusive right to the use of a trade mark given under sub-section (1) shall be subject to any conditions and limitations to which the registration is subject.

(3) Where two or more persons are registered proprietors of trade marks, which are identical with or nearly resemble each other, the exclusive right to the use of any of those trade marks shall not (except so far as their respective rights are subject to any conditions or limitations entered on the register) be deemed to have been acquired by any one of those persons as against any other of those persons merely by registration of the trade marks but each of those persons has otherwise the same rights as against other persons (not being registered users using by way of permitted use) as he would have if he were the sole registered proprietor.

29. Infringement of registered trade marks.--(1) A registered trade mark is infringed by a person who, not being a registered proprietor or a person using by way of permitted use, uses in the course of trade, a mark which is identical with, or deceptively similar to, the trade mark in relation to goods or services in respect of which the trade mark is registered and in such manner as to render the use of the mark likely to be taken as being used as a trade mark.

(2) A registered trade mark is infringed by a person who, not being a registered proprietor or a person using by way of permitted use, uses in the course of trade, a mark which because of--

(a) its identity with the registered trade mark and the similarity of the goods or services covered by such registered trade mark; or

(b) its similarity to the registered trade mark and the identity or similarity of the goods or services covered by such registered trade mark; or

(c) its identity with the registered trade mark and the identity of the goods or services covered by such registered trade mark, is likely to cause confusion on the part of the public, or which is likely to have an association with the registered trade mark.

(3) In any case falling under clause (c) of sub-section (2), the court shall presume that it is likely to cause confusion on the part of the public.

(4) A registered trade mark is infringed by a person who, not being a registered proprietor or a person using by way of permitted use, uses in the course of trade, a mark which--

(a) is identical with or similar to the registered trade mark; and

(b) is used in relation to goods or services which are not similar to those for which the trade mark is registered; and

(c) the registered trade mark has a reputation in India and the use of the mark without due cause takes unfair advantage of or is detrimental to, the distinctive character or repute of the registered trade mark.

(5) A registered trade mark is infringed by a person if he uses such registered trade mark, as his trade name or part of his trade name, or name of his business concern or part of the name, of his business concern dealing in goods or services in respect of which the trade mark is registered.

(6) For the purposes of this section, a person uses a registered mark, if, in particular, he--

(a) affixes it to goods or the packaging thereof;

(b) offers or exposes goods for sale, puts them on the market, or stocks them for those purposes under the registered trade mark, or offers or supplies services under the registered trade mark;

(c) imports or exports goods under the mark; or (d) uses the registered trade mark on business papers or in advertising.

(7) A registered trade mark is infringed by a person who applies such registered trade mark to a material intended to be used for labeling or packaging goods, as a business paper, or for advertising goods or services, provided such person, when he applied the mark, knew or had reason to believe that the application of the mark was not duly authorised by the proprietor or a licensee.

(8) A registered trade mark is infringed by any advertising of that trade mark if such advertising--

(a) takes unfair advantage of and is contrary to honest practices in industrial or commercial matters; or

(b) is detrimental to its distinctive character; or

(c) is against the reputation of the trade mark.

(9) Where the distinctive elements of a registered trade mark consist of or include words, the trade mark may be infringed by the spoken use of those words as well as by their visual representation and reference in this section to the use of a mark shall be construed accordingly.

31. Registration to be prima facie evidence of validity.--(1) In all legal proceedings relating to a trade mark registered under this Act (including applications under section 57), the original registration of the trade mark and of all subsequent assignments and transmissions of the trade mark shall be prima facie evidence of the validity thereof.

(2) In all legal proceedings as aforesaid a registered trade mark shall not be held to be invalid on the ground that it was not a registrable trade mark under section 9 except upon evidence of distinctiveness and that such evidence was not submitted to the Registrar before registration, if it is proved that the trade mark had been so used by the registered proprietor or his predecessor in title as to have become distinctive at the date of registration."

In the present case, apart from the above it is evident that the

mark 'NIKHAR' is deceivably similar to that of the plaintiff's well-

known mark 'NIHAR'. The plaintiff has been able to prove that the

mark 'NIHAR' is of well-known mark. The defendant is trying to pass

off its products as that of the plaintiffs and has been established by

acceptable evidence. Sub-Section (2) of Section 27 supports the

action of the plaintiff.

Evidence further establishes that -

i) Trade dress including the get up, layout, colour scheme

and colour combination of the defendants' products is

identical, deceivably similar and/or colourable imitation

of the plaintiff's label;

ii) Plaintiff is a prior user of the Trademark 'NIHAR' and is

entitled to exclusive use of the same to the exclusion of

others;

iii) Defendants have wrongfully and illegally adopted the

Trademark 'NIKHAR' particularly added an alphabet to

create confusion and deception in the course of trade and

thereby the consumers, dealers in the market may have a

confusion or likelihood of confusion;

iv) By adopting the impugned Trademark the defendants

have passed off its goods in the market as that of

plaintiff's goods and/or product and the customers of

average intelligence would be confused in the ordinary

course of trade.

In support of his case learned Senior Counsel appearing for the

plaintiff, relied upon the following decisions in the case of Durga Dutt

Sharma - Vs. - Navaratna Pharmaceutical Laboratories, reported

in AIR 1965 SC 980. Mr. Bose has relied on paragraph 28 of the said

judgment and the same is set out below :

"28. The other ground of objection that the findings are inconsistent really proceeds on an error in appreciating the basic differences between the causes of action and right to relief in suits for passing off and for infringement of a registered trade mark and in equating the essentials of a passing off action with those in respect of an action complaining of an infringement of a registered trade mark. We have already pointed out that the suit by the respondent complained both of an invasion of a statutory right under S. 21 in respect of a registered trade mark and also of a passing off by the use of the same mark. The finding in favour of the appellant to which the learned Counsel drew our attention was based upon dissimilarity of the packing in which the goods of the two parties were vended, the difference in the physical appearance of the two packets by reason of the variation in their colour and other features and their general get- up together with the circumstance that the name and address of the manufacture of the appellant was prominently displayed on his packets and these features were all set out for negativing the respondent's claim that the appellant had passed off his goods as those of the respondent. These matters which are of the essence of the cause of action for relief on the ground of passing off play but a limited role in an action for infringement of a registered trade mark by the registered proprietor who has a statutory right to that mark and who has a statutory remedy in the event of the use by another of that mark or a colourable imitation thereof. While an action for passing off is a Common Law remedy being in substance an action for deceit, that is, a passing off by a person of his own goods as those of another, that is not the gist of an action for infringement. The action for infringement is a statutory remedy conferred on the registered proprietor of a registered trade mark for the vindication of the exclusive right to the use of the trade mark in relation to those goods (Vide S. 21 of the Act). The use by the defendant of the trade mark of the plaintiff is not essential in an action for passing off, but is the sine qua non in the case of an action for infringement. No doubt, where the evidence in respect of passing off consists merely of the colourable use of a registered. trade mark, the essential features of both the actions might coincide in the sense that what would be a colourable imitation of a trade mark in a passing off action would also be such in an action for infringement of the same trade mark. But there the correspondence between the two ceases. In an action for infringement, the plaintiff must, no doubt, make out that the use of the defendant's mark is likely to deceive, but where the similarity between the plaintiff's and the defendants mark is so close either visually, phonetically or otherwise and the court reaches the .conclusion that there is an imitation, no further evidence is required to establish that the plaintiff's rights are violated. Expressed in another way, if the essential features of the trade mark of the plaintiff have been adopted by the defendant, the fact that the get- up, packing and other writing or marks on the goods or on the packets in which he offers his goods for sale show marked differences, or indicate clearly a trade origin different from that of the registered proprietor of the mark would be immaterial; whereas in the case of passing off, the defendant may escape liability if he can show that the added matter is sufficient to distinguish his goods from those of the plaintiff."

In the said judgment, the Hon'ble Apex Court has clearly

pointed out the distinctive features in an action for infringement. It

has been held that in an action for infringement, the plaintiff must,

no doubt, make out that the use of the defendant's mark is likely to

deceive, but where the Similarity between the plaintiff's and the

defendant's mark is so close either visually, phonetically or otherwise

and the Court reaches the conclusion that there is an imitation, no

further evidence is required to establish that the plaintiff's rights are

violated.

The ratio decided in the said case squarely covers the fact

situations of the present case and, therefore, the same is applicable here and undoubtedly it can be held that the defendants have

deceived the plaintiff by adopting the Trademark of the plaintiff.

Mr. Bose relied upon another decision in the case of Cadila

Health Care Ltd. - Vs. - Cadila Pharmaceuticals Ltd., reported in

(2001) 5 SCC 73. Mr. Bose has relied on paragraph 35 of the said

decision which is set out below :

"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

g) Any other surrounding circumstances which may be relevant in the extent of dissimilarity between the competing marks."

The Hon'ble Apex Court in this case has described various

factors required to be considered in an action for passing off for

deciding the question of deceptive similarity, namely,

a) Nature of mark;

b) Degree of resemblance between the marks phonetically

similar and similar in idea;

c) Nature of goods;

d) Similarity in nature, character and performance of the goods

of the rival traders;

e) Class of purchasers;

f) Mode of purchasing of goods and

g) Any other surrounding circumstances.

The distinctive features pointed out by the Hon'ble Apex Court

in the said decision is similar to the features established by the

plaintiff through its evidence, is identical and, therefore, beyond any

doubt it can be held that there has been infringement of passing off

and the plaintiff is entitled to the remedy in its action for passing off

on the basis of the claim made in the plaint.

The next decision Mr. Bose has relied on is in the case of

Marico Limited - Vs. - J.K. Enterprises & Ors., reported in 2010

(44) PTC 443 (Cal). Mr. Bose has relied on paragraph 12 of the said

decision which is set out below :

"12. Since the first defendant has not questioned the plaintiff's rights as the owner of the registered mark "Nihar", it has to be assessed as to whether in the use of the mark "Nihal" in conjunction with other words by the first defendant, there is infringement of the registered mark. There is no dispute that the two marks are used in respect of coconut oil, though the first defendant claims that its coconut oil is only of edible grade. At the highest, the products may not be identical in nature but in both being coconut oil, whether of the edible kind or the hair oil variety, they are certainly similar in nature. Infringement or passing- off is decided on the basis of both the visual and the phonetic appreciation of the rival marks. If the first defendant's word mark on its pouch is "Nihal Uttam", as it claims, it does not appear to be so in the manner of the writing thereof. "Nihal" is written in similar style as "Nihar" and "Uttam" is written in different colour and smaller size below "Nihal" on the first defendant's pouch. Even if, technically, the first defendant's word mark is "Nihal Uttam" it is the "Nihal" aspect which is emphasised on in the manner in which the word mark is represented on its pouch. "Nihal" is deceptively similar to the plaintiff's mark "Nihar" within the meaning of Section 2(h) of the Trade Marks Act, 1999 and the manner of presentation of the mark by the first defendant would, prima facie, entitles the plaintiff to an order of injunction against the first defendant both on account of infringement and passing-off. In the first defendant's plastic containers, the word "Fresh" appears to be more a description of the product than a part of its mark. Again, it is "Nihal" which stands out as the prominent feature of the mark. The visual depiction of the defendant's mark is such that the product will be recognised as "Nihal" and not as "Fresh Nihal" and despite the first defendant's insistence that its mark is "Fresh Nihal," "Nihal" is so prominently featured and "Fresh" is so indistinct in its plastic containers that it is likely to deceive or cause confusion within the meaning of the expression "deceptively similar" in Section 2(h) of the Act. Prima facie, there is very little to tell between the plaintiff's discontinued pouch and the first defendant's pouch; there is hardly any dissimilarity between the rival plastic containers. The test is not by placing the two products side by side and counting the minor differences; the test is as to whether the offending package is such that it reminds a casual viewer of the original package or gives an impression that it may be associated with the original package. The matter has to be assessed from the point of view of the prospective customer who, more often than not, will not have the benefit of having the two packages side by side or even the time or interest to compare the two; but who will go by pure impression and his indistinct memory."

The principles laid down in the said decision are clearly

applicable in the present case. The real test is as to whether the

offending package is such that it reminds a casual viewer of the

original package or gives an impression that it may be associated

with the original package. The matter has to be assessed from the

point of view of the prospective customer who, more often than not,

will not have the benefit of having the two packages side by side or

even the time or interest to compare the two; but who will go by pure

impression and indistinct memory.

Although, the said decision has been passed in the interlocutory

stage of the matter but the principle enunciated in the decision is

applicable in the present case and, therefore, I do not find any reason

not to apply such well established principle in the present case.

In view of the ratio decided by the Hon'ble Apex Court and what

has been established by the plaintiff through his evidence, this Court

is of the view that the defendants are liable for passing off coconut oil

bearing the Trademark 'NIHAR' and/or trade dress 'NIHAR' of the

plaintiff by substantial reproduction or colourable imitation thereof

and they are also liable for infringing the Trademark 'NIHAR' by

substantial reproduction or colourable imitation thereof.

That being so the plaintiffs are entitled to perpetual injunction

as sought for in the plaint. The plaintiffs are entitled to the decree as

prayed for. Therefore, the suit is decreed in terms of Prayer 'a', 'b', 'c',

'd', 'e', 'f', 'g', 'h' and 'i'.

Department is directed to draw up and complete the decree as

expeditiously as possible.

Urgent Photostat certified copy of this judgment, if applied for,

be delivered to the learned counsel for the parties, upon compliance

of all usual formalities.

(Sahidullah Munshi, J.)