PEPSICO, INC Vs. TRISTOS FOOD PVT. LTD

JUDGEMENT

(1.) The appellants are aggrieved by the impugned order dated 04.07.2012 of the learned Single Judge declining the relief of ad interim ex parte injunction on an application under O 39 R. 1 and 2 of Code of Civil Procedure, 1908 ('the said Code') for short) filed along with the suit for infringement of trade mark, passing off and other connected relief's. Learned Single Judge by a detailed order has come to the conclusion that no ad interim ex parte order is required to be passed in the present case and has issued notice in the application. Even qua the prayer for appointment of a local commissioner, thus, notice has been issued. Learned senior counsel for the appellants, on instructions, states that though the appellants were praying for an ad interim ex parte order, there was no insistence by the counsel addressing the submissions that if the learned Single Judge was not inclined to grant the stay order and was inclined to issue notice returnable for a short date, reasons for non-grant of ad interim ex parte order should be recorded. It is his submission that effectively the impugned order amounts to an order declining injunction. Learned counsel submits that there are two different aspects which appear to have got intermingled in the impugned order i.e. the infringement of the trademark of the appellants "FRITOS" on account of the use of the trademark "TRITOS" by the respondents.

(2.) There is also a claim of second infringement arising from the registered trademark of the appellants "TOSTITOS".

(3.) The second aspect arises from the allegation of passing off where the get up is identical when the respondents are using the mark "TRITOS" as compared to mark "TOSTITOS" of the appellants. The style of writing and the use of red dot over the alphabet (i) has been pointed out. In this behalf, the use of similar font by the respondents has also been pointed out. This is stated to be apparent from the following: