R.N. Aggarwal, J.
(1) In this case both the plaintiffs and the defendants carry on the trade in manufacture and sale of steel balls. The plaintiffs are trading under the trade mark 'NOVA' and the defendants under the trade merk 'JANI'. The plaintiffs pack and market the steel balls in their artistic carton entitled 'NOVA'. The salient features of the plaintiffs' carton are that 4/5th side panel are red throughout the length and breadth of the carton. On the length side of the penal the expression 'NOVA' Ball Bearing Industries, Delhi-35' is written in white. The breadth side panel indicate the description 'Size 1/4' and '12 Gross' respectively. The upper side panels .have blue and white squares with a red band in the centre bearing the trade mark 'NOVA' Steel balls. There is also a red circle in one of the upper side panels in which the initials of the Plaintiffs' firm Snb appear prominently. The carton of the Plaintiffs it marked Annexure'A' to the plaint. The plaintiffs got the copyright of their artistic carton registered in 1978.
(2) The case of the plaintiffs is that the. defendants are packing and marketing their products in cartons having same colour scheme, get-up, lay out and arrangement as that of the plaintiffs' cartons and that the above is not a matter of chance but a deliberate attempt to deceive the unwary class Of purchasers and to earn profits in illegal manners. The plaintiffs alleged that the steel balls are generally purchased by illiterate cycle mechanics, servants workmen etc. and that the sale of the goods by the defendants in the cartons in question are likely to be passed off as that of the plaintiffs.
(3) The defendants in their written statement have pleaded that the plaintiffs have no exclusive right to the square device get up and that there is nothing artistic about it. It is alleged that manufacturers and dealers in several trades including cycle goods medicinal products, cloth trades etc. are using cartons bearing the square device. The defendants have further alleged that the main feature of the respective cartons is the trade mark of the parties, that is, 'NOVA' and 'JANI' which are dissimilar visually as well as phonetically and there is no chance or occassion in the purchaser mistaking the goods of the defendants as that of the plaintiffs. It is further pleaded that the defendants' carton bear the mark 'JANI' as a trade mark at 5 places which clearly distinguishes the carton of the defendants from that of the plaintiffs.
(4) The grant of an injunction is a discretionary relief. There are three guiding factors which have to be kept in view in refusing or allowing the relief of ad-interim injunction, namely, the proof of a prima facie case, the balance of convenience between the parties, and whether the interim injunction if not granted will cause irreparable injury to the plaintiffs.
(5) After hearing the learned counsel for the parties at length and giving the case my very careful consideration, I am of the view that the above conditions are satisfied in this case and the application must be allowed.
(6) The plaintiffs are manufacturing and selling steel balls in the cartons entitled 'NOVA' since about 1971. The plaintiffs got their artistic carton registered under the Copyright Act in 1978. The defendants came into the trade of manufacturing and selling of steel balls only in the year 1980. In para 6 of the written statement the defendants have pleaded that they have - not sold any goods in the market and they have only supplied samples in the market.
(7) A comparison of the two cartons 'NOVA' and 'JANI' would reveal that two cartons are exactly similar in size, colour scheme and get up, the only difference that the trade mark of the defendants is written at 5 places and that of the plaintiffs at 3 places. The two cartons bear such a close resemblance that they can easily confuse and deceive a customer.
(8) The plaintiffs have placed on record a statement of their sales from the year 1971-72 uptill 1978-79 and the statement shows that there has been steady increase in the sales of the plaintiffs and in 1979 their sales touched Rs. 18,65,790-15. The defendants have yet to put their goods in the market. In my opinion, it will be in the interest of the defendants to prohibit them at this stage from using the impugned carton rather than allowing them to market their products in the impugned cartons and latter pass a restraint order against them See: M/s. Vicco Labs v. M/s/. Bindustan Rimmer 1979 R L R 232, Muller and Thipps International Corparation and another v. Anita Cosmetics and another 1979 Arbitration and Trade Mark Law Reporter p. 133 and M/s.Anglo-Dutch Paint, Colour and Varnish Works Pvt. Ltd. v. Mfs. India Trading House, : AIR1977Delhi41 .
(9) Mr. Anoop Singh contended that the defendants also are the registered owners of the copyright in the impugned carton and that unless the plaintiffs by an appropriate action have the registration of the copyright in favor of the defendants rectified and the present action is not sustainable.
(10) I do not agree in this submission. The plaintiffs are actually using the artistic carton entitled 'NOVA' since 1971. They got their copyright in the said carton registered in 1978. The plaintiffs are clearly the prior user of the impugned carton. The defendants, it appears, got the copy- right in the impugned carton registered in their same by suppressing the fact of its earlier registration in the name of the plaintiffs. It may be noticed here that the counsel for the plaintiffs stated that the plaintiffs have already moved for the rectification of the-register of copyright.
(11) Prima facie, the defendants seem to be guilty both of infringement of the copyright and passing off.
(12) On the facts found, the balance of convenience is clearly in favor of the plaintiffs. The injunction is refused shall certainly result in irreparable injury to the plaintiffs. The defendants, as already observed, have yet to market their products and they can easily adopt another carton with different get-up and colour scheme.
(13) In the result the interim injunction granted on 7th July, 1980 is made absolute. ' The plaintiffs shall have their cotss. Counsel fee is fixed at Rs. 500.00 . The 1. A. is disposed of.