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Deepchand Arya Vs. Kiran Soapworks - Court Judgment

LegalCrystal Citation
SubjectIntellectual Property Rights
CourtDelhi High Court
Decided On
Case NumberInterim Application No. 2424 of 1980
Judge
Reported in1981RLR113
ActsCopyright Act, 1957 - Sections 62(2)
AppellantDeepchand Arya
RespondentKiran Soapworks
Advocates: K.L. Aggarwal,; Anoop Singh and; Manmohan Singh, Advs
Cases ReferredMuller and Phipps International v. Anite Cosmeties
Excerpt:
the court ruled that the infringement of trade mark and infringement of copy right being interlinked could be tried together under order 2, rule 3 and rule 6 a of the civil procedure code, 1908 - - (7) after hearing the counsels 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. (10) on the facts found the balance of convenience is clearly in favor of the plaintiff. section 62 of the copyright act clearly gives jurisdiction to this court to entertain the suit. i am also not inclined to agree if the contention that the suit is bad for misguide of causes of action......an application for grant of interim injunction restraining the defendants from using the trade mark'sindrela' and the wrapper entitled 'sindrela', (5) the defendants in their written statement pleaded that the trade mark 'sindrela' is visually and phonetically different from the trade mark 'sinauala' 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, 1879 and that uptil july, 1980 they have sold goods approximately of the value of rs. 18,000.00 and their profit may be almost nothing. (6) the grant of an injunction is a discretionary relief. there are three guiding factors which have to be kept in view in.....
Judgment:

R.N. Aggarwal, J.

(1) In this case both the plaintiff and defendant 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. 314123 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 'SINDRELA', The wrapper used by the defendants have same colour scheme, get up, lay out 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 with 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 purchaser which include unwary class of purchasers such as housewives, washerman, servants, etc. The plaintiff further alleged that the sales of its products run into several lakhs of rupees and that the defendants, with mala fide intention and to exploit the reputation of the plaintiff, nave adopted the impugned trade mark and the wrapper.

(4) 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',

(5) The defendants in their written statement pleaded that the trade mark 'SINDRELA' is visually and phonetically different from the trade mark 'SINAUALA' 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, 1879 and that uptil July, 1980 they have sold goods approximately of the value of Rs. 18,000.00 and their profit may be almost nothing.

(6) 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.

(7) After hearing the counsels 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.

(8) 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 soaps only in June, 1979 and according to the defendants uptil July, 1980 they had sold goods only of the value of about Rs. 18,000.00. 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 the product of the defendants as that of the plaintiff.

(9) The plaintiff are manufacturing and selling washing soaps under the trade mark 'SINAUEA' since 1976 and according to the plaintiff their sales runs into several lakhs of rupees. The plaintiffs have alleged that they advertise their trade mark through different media such as newspapers, calendars, handbills, 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, 1979 and uptil July 1980 their sales were only of the value of about Rs. 18,000.00 which would show that the sales of the defendants'goods is on a very small scale. In this state of affair, in my opinion, it would be in the interest of the defendants to prohibit them at this stage from using the impugned wrapper trade-mark rather than 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 RLR 232, Muller and Phipps International v. Anite Cosmeties 1979 A & TMLR 133, and M/s. Anglo-Dutch Paint, Colour and Varnish Works Pvt. Ltd. v M/s. India Trading House, : AIR1977Delhi41 . 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 nor carry on the 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 if the contention that the suit is bad 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 joined together in one suit. The two reliefs, in my opinion, are inter linked and they can be tried together in one suit. Interim injunction made absolute.


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