1. This appeal is against the Orders of the Principal District Judge, Ramanathapuram at Madurai, passed in I.A. No. 725 of 1986 in O.S. No. 101 of 1986, dismissing the said application filed by the petitioner for the relief of interim injunction restraining the respondents from using a trade mark for the product of matches, which is similar to the registered trade mark of the petitioner.
2. The facts of the case are briefly as follows : The petitioner is a registered proprietor of the trade mark consisting of a rose for his product of safety matches. The registration certificate is marked as Ex. A1. The respondent began marketing a product of safety matches with a cartonn containing rose with the title 'White rose'. No doubt, the respondent's carton is in deep blue and deep green colours whereas the petitioner's carton is in red and yellow colours. The lower Court, while dealing with the interim injunction application, compared both the cartons side by side and then came to the conclusion that the petitioner is not entitled to an interim injunction on the ground that there is difference in the colour and there are other distinguishable differences, and on that ground, the petitioner is not entitled to any relief in the application.
3. At the outset, I must state that the manner in which the learned District Judge proceeded to deal with the application is incorrect. It has been pointed out in reported decisions more than once that in such matters, the Court should not compare the two marks to find out the difference and then come to a conclusion, but place itself in the position of an unwary purchaser and then decide the question whether any unwary purchaser is liable to be misled bearing in mind the imperfect recollection of any unwary purchaser. Since the lower Court has not dealt with the matter in the proper perspective, I have no hesitation in setting aside the Order of the lower Court.
4. Now, taking into consideration both the marks, there are several similarities such as, the 'rose' and 'design of the edges of the main match 'boxes' and the name itself may mislead an unwary purchaser. The petitioner is the registered proprietor of his trademark, and the registration is without reference to the colour. Taking into consideration the entire circumstances, the only conclusion that can be arrived at is that an unwary purchaser is likely to be misled by the adoption of the mark said to be used by the respondents. The petitioner has made out a prima facie case, and, therefore, he is entitled to an order of injunction as prayed for. However, the observations made in this order will not in any way influence the lower Court in coming j to a conclusion in the trial of the suit. I In any event, since the matter relates to trade marks, the trial Court is directed to expedite the trial of the suit, so that much hardship may not be caused to both the parties.
5. In the result, the civil miscellaneous appeal is allowed and there will be an order of injunction restraining the respondents from adopting the trade mark with the 'rose in white colour' in dark blue and dark green, pending disposal of the suit. The suit is directed to be disposed of within six weeks from the date of receipt of the records. No costs.