M. Hidayatulla, C.J.
1. This appeal is by one Beniprasad Agarwal who trades in the name and style of 'Bajoria Soap Works', at Sindi Bazar, Kharsia, in the Raigarh district. The appeal is directed against the order granting a temporary injunction in a suit filed by the respondent, Lever Brothers (India), Limited, Bombay, in an action for infringement of the registered trade mark of the respondent Company. There is also an application made for correcting the name of the respondent-Company into 'Hindustan Lever, Limited, Bombay', which is not opposed.
The respondent-Company have also cross-objected and asked for the grant of a temporary injunction against certain other alleged infringements of the registered trade mark. This order shall dispose of all these matters.
2. As regards the application for the correction of the name of the respondent-Company, no objection was raised, and I allow that application.
3. The facts of the case are as follows. The plaintiff in the -suit. Lever Brothers (India), Ltd., are the manufacturers of detergents, and one of their commodities is the well-known Sunlight soap. 'This soap, according to the affidavit filed in the case seeking temporary injunction, has been on the market for nearly sixty years. The label, which is exhibited in the case, is closely associated with this product and has been in existence for almost the same period.
The reports of patent cases as also the reports in India disclose numerous attempts at counterfeiting these -labels and also show that attempts have been made from time to time to make colourable imitations of this label. This is partly due to the widespread reputation of the soap which has been in existence for such a long period. The present case is one of the imitations attempted, and the plaintiff's case is that the defendant, now the appellant, has devised a label which infringes the registered label of the respondent-Company and is likely to catch the unwary purchaser into buying the product of the defendant instead of that of the plaintiff.
4. In a matter like this, where we are only at the stage of a temporary injunction, it is not necessary for me to lay down the law too elaborately as to what is included in 'passing off' or in infringement of trade marks and registered labels. It is also not necessary for me to deal at length with the chance of people being deceived by the label of the defendant What I say in this order is not calculated to lay down a final pronouncement upon the aspect covered by the order, but is merely to consider whether the grant of a temporary injunction in the Court below was proper or not.
Any observation made by me, therefore, whether in favour of one side or the other, is not to be taken as a decision on merits and is not to be construed as such in the trial of the suit.
5. Having guarded myself -- adequately I hope - I now consider the question of the temporary injunction. The defendant has put on the market a soap which is called the 'Swanwhile' scap. At first the plaintiff had produced a label in which there was a greater degreei of resemblance, but the defendant has exhibited a label in which there are some changes. It does not matter which of these two labels is considered; but the question which I have to decide is whether there is such a colourable imitation that an unwary purchaser is likely to be deceived by the resemblance into believing that he is buying the goods of the Lever Brothers instead of those of the Bajoria Soap Works.
It may be pointed out here that in registering their trade mark the Lever Brothers did not register it in any particular colour. They had their label registered in black and white and in view of the provisions of the Indian Trade Marks Act, 1940. as also of the previous Trade Marks Act, their registration covers all colours and combination of colours.
The short point, therefore, is whether the attempt to put out products of the Bajoria Soap Works in the impugncd labels causes prima facie an infringement of the plaintiff's labels, and also whether, in view of the fact that the goods, if sold, are likely to cause some loss to the plaintiff-Company, they should be prohibited from selling during the pendency of the suit.
6. Their Lordships of the Privy Council in many cases have laid down the tests which have to be applied in such matters. In Malayan Tobacco Distributors Ltd. v. United Kingdom Tobacco Co., Ltd., AIR 1934 P. C. 167 (A) and Thomas Bear & Sons v. Prayag Narain, AIR 1940 P. C. 86 (B) we get a discussion of how the matter is to be approached. Their Lordships have laid down that comparison side by side of the two labels is not an appropriate method of discovering whether an unwary purchaser would be deceived or not.
The reason given by their Lordships is that the purchaser never compares the two labels together side by side, and therefore the comparison in Court is not correct. It has also been laid down by their Lordships that mere similarity or dissimilarity is not to be noticed, but an overall view of the impugned label must be taken by the Court so as to find out whether it is so designed in its get-up, in its lettering and in its colours as to deceive an unwary purchaser.
For the purposes of this case which is before me, namely, the grant of temporary injunction, I have taken the precaution to keep within the four corners of their Lordships* precepts, and I have looked at the labels from that point of view only. In doing so I have come to the conclusion that prima facie the label which has been put on the market is one which is likely to deceive an unwary purchaser into accepting goods of the defendant-firm instead of those of the plaintiff Company.
I do not say that there is an attempted passing off, because that would be a matter for decision in the case if the plea were raised. What I have to find out is whether there is an infringement of the trade mark of the plaintiff-Company sufficient to warrant me to hold that some temporary action has to be taken to safeguard in irreparable injury to the plaintiff-Company. The learned Judge in the Court below has considered the matter also from the same angle, and I find no misdirection in his order,
I have reached precisely the same conclusions on viewing the impugned label vis-a-vis the label of the plaintiff-Company; and I think that there is a likelihood of confusion in the mind of a purchaser, particularly an unlettered and ignorant villager, who wants to purchase a particular soap, being indifferent as to what the lettering on the label is. He is likely to think that the Swanwhite soap is the same as the Sunlight soap, and he is not likely to find that it is not of the same type.
I think that in this case there is a likelihood of injury to the plaintiff-Company by reason of the sale of this imitation article, and therefore it is necessary to prevent the mischief.
7. Of course, there are various ways of doing justice between the plaintiff and defendant in an action for infringement of a registered trade mark. Sometimes the Courts take security for likely damages; sometimes the Courts put the plaintiff to strict proof of his account, both the production and of sale; sometimes the Courts allow the defendant to carry on his work, because ultimately it may be found that there is no colourable imitation.
But in most cases action is taken to prevent manufacture where there is a reasonable possibility of the suit succeeding. I think--and I should not be taken to lay down categorically the issue because the matter will have to be considered in the Court below and, as I have said, I hope the Court will not be guided by what I have said but reach its independent conclusion--that there is a distinct possibility that the suit is likely to succeed, at any rate in respect of some of the reliefs.
8. This position is one which must be taken into account, because on the one hand we have afirm of standing and on the other there is a new firm entering into the field as a manufacturer of soaps. Of course, I could call for security; but there is no basis on which security can be demanded, and it is a matter of great importance to see that the rights of the plaintiff are as well safeguarded as those of the defendant.
In the present matter, the sales have not been proved; nor has any attempt been made to show what is the amount realized from the sale of the Swanwhile soap by the defendant. An attempt should have been made to put before the Court this matter in a clear and open way, so that some interim relief could have been given to the defendant while protecting the rights of the plaintiff.
The defendant not having chosen to come to Court with a clear-cut proposal, it is impossible for me to give relief midway between the prohibition of the use 'of the impugned labels and the dismissal of the application for interim injunction. I think this is a case which calls for stoppage of the use of the impugned labels -- I here say labels advisedly because since there was no registration of any particular colour, all colours are equally prohibited.
I do not set down in detail the resemblances lest they might influence the Court below. I only say that, having regard to the well-established principles laid down in such cases, I have come to the irresistible conclusion that order made in the Court below must be upheld.
9. Shri A. P. Sen, who appeared for the appellant raised an objection that the cross-objection is not tenable because it is a cross-objection filed against an appellate order. The grant or refusal of a temporary injunction is expressly appealable under the Code of Civil Procedure. Under section 104 an, appeal lies against an order granting or refusing a temporary injunction.
Section 108 makes Chapter VII apply to all appeals, irrespective of whether they arise from decrees or orders. Order XLIII, rule 2, clearly lays down that the rules of Order XLI shall apply, so far as may be,, to appeals from orders. It appears from this that the intention is to allow all matters covered by Order XLI so far as they can be made applicable to appellate orders and appeals therefrom as well. It is quite clear therefore that a cross-objection in an appeal against an appellate order can be made.
Shri A. P. Sen contends that in a cross-objection the cross-objector can only support the order made in the lower Court but cannot ask for any further relief. This is an erroneous assumption, because in cross-objection a decree can be passed. The cross-objection takes the plaec of an appeal after it is filed and a decree from an order can be made, just as in an appeal. This is clear from a reading of Order XLI, rule 22, itself. I, therefore, overrule the contention that the cross-objection in this case is not tenable.
10. This brings me to the conclusion of this order. I have purposely kept it brief. I have held that there is a colourable imitation of the plaintiffs label and in such wise as to deceive an unwary purchaser. I have also hold that the registration is irrespective of any particular colours. Therefore, if the resemblance is sufficient to cause a deception, it does not matter in what colours the labels are.
I hold that prima facie there is enough material from a visual inspection of the labels to lead one to the conclusion that deception is likely--no matter what the colour of the labels is. I, therefore, reject the contention of the appellant and dismiss the appeal. I allow the cross-objection and grant a temporary injunction in respect of the label which is in red and yellow in respect of which temporary injunction was not granted in the Court below.
I once again warn the trial Court that this expression of opinion by me is entirely for the purpose of considering the grant of a temporary injunction and must not be construed or quoted to support any conclusion reached by the trial Court. In deciding the case, which should be expedited so as to make the loss of the defendant, if successful, as little as possible, the trial Court will reach an independent conclusion on the merits of the controversy, without in any way being guided by what I have said.
11. The result is that the appeal fails and is.dismissed. The cross-objection succeeds and isallowed. The costs of the appeal as well as the cross-objection shall be borne by the defendant in the suit,namely, Beniprasad Bijaykumar Agarwal. Counsel's.fee Rs. 50/-.