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Deep Chand Arya Industries Vs. Kiran Soap Works and ors. - Court Judgment

LegalCrystal Citation
SubjectIntellectual Property Rights
CourtDelhi High Court
Decided On
Case NumberSuit No. 565 of 1980
Judge
Reported inILR1980Delhi1605
ActsCopyright Act, 1957 - Sections 62(2)
AppellantDeep Chand Arya Industries
RespondentKiran Soap Works and ors.
Advocates: K.L. Aggarwal,; Anoop Singh and; Manmohan Singh, Advs
Excerpt:
.....the plaintiff and defendants who are in the business of manufacture and sale of soap adopted the trade mark 'sinaula' and sindrela' in 1976 and 1979 respectively. on the ground that the trade mark adopted by the defendants was deceptively similar to that of the plaintiff and that it amounted to an infringement, the plaintiff filed the present suit and injunction application for restraining the defendant from using the trade mark 'sindrela'. allowing the application,; 1. the grant of an injunction is a discretionary relief and the factors which lead to the grant of an injunction are, the proof of a prima facie case, balance of convenience and whether the interim injunction if not granted will cause irreparable injury to the plaintiff. in the present case, the above conditions exist and..........arya industries is in the trade since the year 1959. in april, 1976 the plaintiff adopted the trade mark 'sinaula' in respect of their products. the trade mark 'sinaula' of the plaintiff is registered under no. 314128 dated 19th april, 1976. the plaintiff is packing and marketing its products in the wrapper entitled 'sinaula'. the wrapper used by the plaintiff is registered under the copyright act, 1957. according to the plaintiff, the colour scheme, get-up, lay-out and arrangement of the plaintiff's wrapper is an artistic work and the same is protected under the provisions of the copyright act. (2) the defendant m/s. kiran soap works came in the business of the manufacture and sale of washing soap in june 1979 and they are trading under the trade mark 'sindrela' and are packing and.....
Judgment:

R.N. Aggarwal, J.

(1) In this case both the plaintiff and dependant No. 1 are in the business of manufacture and sale of washing soaps. The plaintiff M/s. Deep Chand Arya Industries is in the trade since the year 1959. In April, 1976 the plaintiff adopted the trade mark 'SINAULA' in respect of their products. The trade mark 'SINAULA' of the plaintiff is registered under No. 314128 dated 19th April, 1976. The plaintiff is packing and marketing its products in the wrapper entitled 'SINAULA'. The wrapper used by the plaintiff is registered under the Copyright Act, 1957. According to the plaintiff, the colour scheme, get-up, lay-out and arrangement of the plaintiff's wrapper is an artistic work and the same is protected under the provisions of the Copyright Act.

(2) The defendant M/s. Kiran Soap Works came in the business of the manufacture and sale of washing soap in June 1979 and they are trading under the trade mark 'SINDRELA' and are packing and marketing their product in the wrapper entitled 'SINDRELLA'. The p. wrapper used by the defendants have same colour-scheme, get-up, layout and arrangement as of the wrapper of the plaintiff.

(3) The case of the plaintiff is that the trade mark 'SINDRELA' adopted by the defendant is deceptively similar to the mark of the plaintiff and it amounted to an infringement of the trade mark of the plaintiff and that further the defendants wash a dishonest intention are packing and marketing their washing soaps in the wrapper 'SINDRELA' which is an exact copy of the wrapper of the plaintiff and that the sale of the product of the defendants in the wrapper entitled 'SINDRELA' is bound to confuse and deceive the purchasers which include unwary class of purchasers such as housewives, washerman servants etc. The plaintiff further alleged that the sales of its product run into several lakhs of rupees and that the defendants, with mala fide intention and to exploit the reputation of the plaintiff, have adopted the impugned trade mark and the wrapper.

The plaintiff has along with the suit filed an application for grant of interim injunction restraining the defendants from using the trade mark 'SINDRELA' and the wrapper entitled 'SINDRELA'.

(4) The defendants in their Written statement pleaded that the trade mark 'SINDRELA' is visually and phonetically different from the trade mark 'SINAULA' of the plaintiff and that there is also no similarity between the two wrappers and no person with a reasonable sense and proper eye-sight could be deceived. The defendants pleaded that they are using the mark 'SINDRELA' since June, 1979 and that up till July, 1980 they have sold goods approximately of the value of Rs. 18,000 and their profit may be almost nothing.

(5) The grant of an injunction is a discretionary relief. There are three guiding factors which have to be kept in view in dealing with the relief of ad-interim injunction and those factors are : (i) the proof of a prima-facie case, (ii) the balance of convenience between the parties and (iii) whether the interim injunction if not granted will cause irreparable injury to the plaintiff.

(6) After hearing the counsel for the parties, 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.

(7) The plaintiff is manufacturing and selling washing soaps in the wrapper entitled 'SINAULA' since 1976. The plaintiff got its wrapper registered under the Copyright Act. The defendants came into the trade of manufacturing and selling washing soap's only in June, 1979 and according to the defendants up till July, 1980 they had sold goods only of the value of about Rs. 18,000. A comparison of the two wrappers 'SINAULA' and 'SINDRELA' would reveal that the two wrappers are similar in size, colour-scheme and get-up; the trade marks 'SINAULA' and 'SINDRELA' also are visually and phonetically confusing and deceiving. The two wrappers with the trade marks 'SINAULA' and 'SINDRELA' bear such a close resemblance to each other that any one can be misled into buying the product of the defendants as that of the plaintiff.

(8) The plaintiff manufacturing and selling washing soaps under the trade mark 'STNAULA' since 1976 and according to the plaintiff their sales run into several lakhs of rupees. The plaintiff have alleged that they advertise their trade mark through different media such as newspapers, calendars, hand-bills, hoardings, sales promotion gift scheme etc. and have spent considerable amount on its publicity and popularity. The defendants are marketing their washing soaps under the mark 'SINDRELA' since June, 1970 and up till July. 1980 their sales were only of the value of absent Rs. 18.000 which would show that the sales of the defendants' goods is in the the interest of the defendants to prohibit them at this stage from using the impugned wrapper and the trade-mark rather allowing them to market their products in the impugned wrapper and later pass a restraint order against them. See : M/s. Vicco Labs V. M/s. Hindustan Rimmer 1979 R L R232(1). Muller and Phipps International Corporation and another V. Anita Cosmetics and another 1979 Arbitration and Trade Mark: Law Reporter p.-33(2), and M/s. Anglo-Dutch Paint, Colour and Varnish Works Pvt. Ltd. V. M/s. India Trading House, : AIR1977Delhi41 .

(9) Prima facie, the defendants seem to be guilty both of infringement of the trade mark and the copyright.

(10) On the facts found the balance of convenience is clearly in favor of the plaintiff. The injunction if refused shall certainly result in irreparable injury to the plaintiff. The defendants, as already observed, have hardly entered the market and they can easily adopt a different trade mark and a wrapper.

(11) Mr. Anoop Singh contended that this Court has no jurisdiction to entertain the suit as neither the defendants reside or carry on Hie business within the jurisdiction of this court nor are their goods sold in Delhi. Mr. Anoop Singh further contended that the plaintiff had got the wrapper registered under the Copyright Act on 19th July, 1980 and the suit was instituted on 26th July, 1980 and the above was done only to create jurisdiction in this Court under Section 62(2) of the Copyright Act.

(12) I do not agree in the contention of Mr. Anoop Singh. The plaintiffs admittedly reside and carry on their business in Delhi. Section 62 of the Copyright Act clearly gives jurisdiction to this court to entertain the suit. I am also not inclined to agree in the contention that the suit is had for misguide of causes of action. The contention is that the two causes of action, i.e., the infringement of the trade mark and the infringement of the copyright cannot be joint together is one suit. The two reliefs, in my opinion, are inter linked and they can be tried together in one suit.

(13) In the result the interim injunction granted on July 28, 1980 is made absolute. The plaintiff shall have the costs. The counsel fee is fixed at Rs. 500. The I.A. is disposed of.


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