KRBL LTD Vs. PK OVERSEAS PVT LTD

JUDGEMENT

(1.) By this appeal filed under section 104 read with Order 43 rule 1 of the Code of Civil Procedure, 1908 the appellant seeks to challenge the order dated 27.8.2011 whereby the interim relief under Order 39 rule 1& 2 sought by the appellants in the suit for permanent injunction seeking to restrain infringement of trademark was dismissed.

(2.) The adumbrated facts of the case are that the plaintiff filed a suit under section 134 and 135 r/w section 27(2) of the Trade Marks Act, 1999 on the ground of passing off and under section 51 of the Copyright Act, 1957 for infringement of or likely infringement of copyright in artistic work, for permanent injunction, rendition of accounts and delivery against the defendant/respondents. As per the plaintiff they are the registered proprietor and user of the trademark "AARATI" and the Copyright involved in the said trademark in respect to its product of premium rice and alleged that the use of the trademark "DIYA" and the copyright involved therein by the defendants/respondents is same/similar. The appellant/plaintiff in the very suit had filed an application under order 39 rule 1 & 2 for restraining the defendants/respondents from using the trademark "DIYA" which was dismissed vide order dated 27.8.2011. Feeling aggrieved with the same, the appellant has preferred the present appeal.

(3.) Arguing for the appellant, Mr. S.K. Bansal, learned counsel contends that the learned Trial Court has totally misconstrued the principles for the grant of interim injunction especially in the matters involving infringement of trademark and copyright of the author. Counsel further submits that the learned Trial Court has not appreciated the fact that the respondent has brought out the packaging bag with the same/similar colour combinations as that of the colour combination of packaging bag of the appellant/plaintiff to take advantage of the tremendous goodwill and reputation of the well established brand name of the appellant/plaintiff. Counsel also submits that the appellant has been using the packaging material in particular background of combination of colours since the year 2005 while the respondent brought out a deceptively similar packaging material with almost identical combination of colours much later in the year 2009 to encash on the goodwill of the appellant. Counsel for the appellant further submits that voluminous documents were placed on record by the appellant to show that the appellant had been advertising their product and the packaging material with the said combination of colours, but no such documentary evidence was placed on record by the respondent. Counsel for the appellant also placed reliance on Section 2(m) & 2(zb) of the Trade Mark Act to support his arguments that the definition of trademark and mark envisaged therein includes combination of colours of the packaging.