Omrf Pipes And Products vs Itarsi Pipe Sales

1 IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR BEFORE HON'BLE SHRI JUSTICE SHEEL NAGU & HON'BLE SHRI JUSTICE HIRDESH ON THE 17 th OF OCTOBER, 2023 MISC. APPEAL No. 4598 of 2023

BETWEEN:- 1. OMRF PIPES AND PRODUCTS THROUGH ITS PROPRIETOR SHRI MOHAMMAD SHAHID S/O LATE SHRI IBRAHIM AGED 45 YEARS OMRF PIPE AND PRODUCTS 1/8 PATEL NAGAR BEHIND MANOHAR DAIRY HAMIDIA ROAD BHOPAL (MADHYA PRADESH)

2. MOHAMMAD SHAHID S/O LATE SHRI IBRAHIM, AGED ABOUT 45 YEARS, OCCUPATION: PROPRIETOR R/O OMRF PIPE AND PRODUCTS 1/8 PATEL NAGAR BEHIND MANOHAR DAIRY HAMIDIA ROAD BHOPAL (MADHYA PRADESH)

.....APPELLANTS (BY SHRI BRIAN D'SILVA - SENIOR ADVOCATE WITH SHRI S.S. OBEROI - ADVOCATE)

AND 1. ITARSI PIPE SALES THROUGH MR. BILAL OFFICE DIVERSION ROAD AWAM NAGAR NEAR RELIANCE TOWER ITARSI (MADHYA PRADESH)

2. CHANDNI BORING AND MACHINERY THROUGH MOHAMMAD AYYUB DIVERSION ROAD AWAM NAGAR NEAR RELIANCE TOWER ITARSI (MADHYA PRADESH)

3. RAINY ENTERPRISES PVT. LTD. IN D OR E 41-42 PODDAR PLAZA NEW SIYAGANJ INDORE (MADHYA PRADESH)

.....RESPONDENTS (RESPONDENTS NO.1 & 2 BY SHRI JAYANT PRAKASH PATEL - ADVOCATE ) Signature Not Verified Signed by: SATEESH KUMAR SEN Signing time: 10/20/2023 4:16:41 PM 2 This appeal coming on for admission this day, Justice Sheel Nagu passed the following: ORDER

This appeal preferred under Order 43 Rule 1(r) of CPC r/w 13(1) of Commercial Courts Act, 2015 assails legality, validity and propriety of interlocutory order dated 12.05.2023 passed in Comms No.-01/2023 by XXIV District Judge, Commercial Court, Jabalpur, declining temporary injunction sought by plaintiffs/appellants herein under Order 39 Rule 1 & 2 CPC.

2. Undisputed facts of the case, evident from the submission of learned counsel for rival parties are, that the rival parties were involved in the business

of manufacture and supply inter alia of irrigation pipes. The product belonging to appellants is known as "RIVERLINE" whereas, that of the respondents is "METROSTAR" which are their respective trademarks. It was the appellants' case before the Commercial Court that in regard to "RIVERLINE", Intellectual Propriety Rights Certificate has been issued in favour of appellants vide Annexure A/2 detailing class and description of work as "artistic work, the work is artistic, the work is unique."

2.1 The grievance of appellants is that color combination in which the product "RIVERLINE" is made and sold in the market is black and red. Whereas the respondents' product has same color combination and shape which respondents are passing off as the product of plaintiffs/appellants, thereby causing loss to appellants. Accordingly, a suit for permanent injunction was filed by appellants raising the cause of infringement of registered copyright/trademark of appellants. Alongwith the said suit, application seeking temporary injunction under Order 39 Rule 1 & 2 CPC was moved praying for following relief:-

Signature Not Verified Signed by: SATEESH KUMAR SEN Signing time: 10/20/2023 4:16:41 PM 3 "It is therefore prayed that this Hon'ble Court may be pleased to grant an order of interim injunction restraining the defendants from using the color combination of red and black on its products as that of the Plaintiff and to cease manufacturing, selling and supplying of such products pending adjudication of the instant suit for the facts and circumstances mentioned above and in the interest of justice."

3. The principal objection of respondents while opposing the application for temporary injunction was that there is no trademark/copyright in favour of appellants/plaintiffs qua any color combination and also that respondents do not have any sale counter at Jabalpur where appellants/plaintiffs operate.

4. The Commercial Court by impugned order rejected the prayer for temporary injunction on the following two grounds:-

(i) Absence of any trademark/copyright in favour of appellants/plaintiff as regards color combination.

(ii) Absence of any evidence that respondents/defendants operate at Jabalpur.

5. Learned counsel for rival parties are heard at length.

6. Learned counsel for appellants relies upon decisions of Apex Court in Midas Hygiene Industries (P) Ltd. and another Vs. Sudhir Bhatia and others, (2004) 3 SCC 90, Municipal Corporation, Amritsar Vs. Senior

Superintendent of Post Offices, Amritsar Division and another, (2004) 3 SCC 92 and various decision of High Courts in Glaxo India Ltd. & Anr. Vs. Drug Laboratories, 2002 SCC OnLine Del 166, Colgate Palmolive Company & another Vs. Anchor Health and Beauty Care Pvt. Ltd., 2003 SCC OnLine Del 1005, Societe Des Produits Nestle, S.A. & Anr. Vs. Montu Sadhu & Ors., 2014 SCC OnLine Del 1580, Deere & Company & Signature Not Verified Signed by: SATEESH KUMAR SEN Signing time: 10/20/2023 4:16:41 PM 4 Anr. Vs. Mr. Malkit Singh & Ors., 2018 SCC OnLine Del 8527, Kirithavar Vazhuvurimai Iyakkam represented by its President, Prof. Dr. Deva Sahayam Vs. Indhiya Jananayaka Katchi, 2020 SCC OnLine Mad 600, Ashique Exports (P) Ltd. Vs. Safaana Cosmetics & Perfumes, decided on 01.04.2021 in C.S. No.444/2003, Hindustan Bidi Manufacturing A Partnership Firm Vs. Mr. Sunderlal Chhabilal and another, decided on 29.08.2022 in M.A. No.1529/2022 and Omfr Pipes and Products through its proprietor Shri Mohammad Shahid and another Vs. Itarsi Pipe Sales through Mr. Bilal Office and others, 2023 SCC OnLine MP 476.

7. After having gone through the judicial pronouncements relied upon by learned counsel for appellant what comes out loud and clear is that at the interim stage in cases concerning infringement of copyright/trademark/passing off/unfair competition etc., the Court is not required to assess the cause of passing off through a magnifying glass of an expert. The Court ought to step into the shoes of a man of ordinary prudence or rather a potential purchaser of ordinary prudence and thereafter see, as to whether, such ordinary potential buyer can be misled into purchasing the product of defendants by believing the same to be that of plaintiffs.

7.1 The documentary evidence produced alongwith the plaint reveal that color combination of red/pink and black of the product in question is similar to that of defendants and thus has potentiality to mislead a common potential purchaser, who essentially belongs to agricultural background, into purchasing the product of defendants by believing the same to be product of plaintiffs.

8. Applying the aforesaid test, this Court is of the considered view that discretion of grant of temporary injunction ought to have been exercised in

Signature Not Verified Signed by: SATEESH KUMAR SEN Signing time: 10/20/2023 4:16:41 PM 5 favour of appellants by learned Commercial Judge and therefore, to that extent, learned Commercial Judge has failed to exercise the jurisdiction vested in it.

9. Consequently, this Court finds substance in this appeal impelling this Court to interfere in its limited supervisory jurisdiction under Article 227 of Constitution.

10. Accordingly, this appeal is allowed by temporarily injuncting the defendants/respondents herein from manufacturing, selling and supplying the product in question of color combination of red/pink and black, pending adjudication of the suit.

11. Accordingly, this appeal stands allowed sans cost.

(SHEEL NAGU) (HIRDESH) JUDGE JUDGE Sateesh

Signature Not Verified Signed by: SATEESH KUMAR SEN Signing time: 10/20/2023 4:16:41 PM