METRO PLAYING CARD CO Vs. WAZIR CHAND KAPOOR

JUDGEMENT

(1.) This appeal is directed against the order of a learned Single Judge of this Court sitting on the original side whereby an interim injunction was issued against the appellant on a motion by the respondent.

(2.) The respondent/plaintiff manufactures and sells playing cards. On 8th February, 1966, the respondent/plaintiff registered under No. 233581 in Class 16 a trade mark consisting of the device of a tractor and the word "tractor" for his playing cards. The appellant defendant also trades in playing cards and it is alleged by the respondent that early in 1971 he came to know that the appellant had adopted the trade mark "Ferguson" in relation to its playing cards and was marketing the same under that name also using the device of a tractor on the back of the playing cards. The respondent, therefore, brought an action against the appellant seeking permanent injunction restraining the appellant from infringing the reistered trade mark of the respondent and passing off its goods as those of the respondent. A prayer was also made for rendition of accounts, damages etc. Along with the suit the respondent filed an application (I. A. 963 of 1971) under Order 89, Rules 1 and 2 read with Section 151 of the Code of Civil Procedure claiming that during the pendency of the suit an interim injunction may be issued restraining the appellant-defendant, its agents and representatives from manufacturing, selling, offering for sale or otherwise dealing in playing cards bearing the trade mark "Ferguson" and tractor and/or any mark resembling thereto, calculated to cause confusion and amounting to infringement and/ or passing off as and for the genuine trade mark of the respondent/plaintiff.

(3.) The appellant resisted both the suit and the interlocutory application. It pleaded that its application for registration of the "Ferguson" trade mark has been accepted for registration in the Trade Mark Registry at Bombay in Class 16 and has been advertised in the Trade Mark Journal No. 531 dated 16th July, 1971 to which the plaintiff-respondent has filed his opposition on September 11, 1971; that it has been in the trade of manufacturing, and selling cards using the mark "Ferguson" since February, 1966; that the trade mark "Ferguson" does not in any way infringe the registered trade mark of the respondent-plaintiff; that playing cards are sold in sealed cartons and although the playing cards manufactured by the appellant have the device of tractor on the back of the playing cards merely as an ornamental device with the word "Ferguson" printed thereon in a comer yet the carton does not have the device of the tractor and has only the trade mark "Ferguson" on it and so, there is neither any infringement nor would an unwary purchaser be led to purchase the appellant's playing cards in the belief that the same were manufactured and marketed by the respondent.