UNIVERSAL INDUASTRIES Vs. UNIVERSAL AGENCY

JUDGEMENT

(1.) The respondents-plaintiffs sell jewellery boxes. It is claimed that they are sold under the name "Universal". They claimed that they are selling the boxes under that name for about 30 years. They have stated that in 1978-79 the sale was to the tune of about Rs. 3,61,781.00 and in the year 1980-81 sale amounted to Rs. 17,00,000.00. The boxes are sold in Delhi as well as in 7 other States. It is averred that the appellant-defendant was working with the respondents for 5 years as an agent for selling the boxes. In 1983 he filed a suit for rendition of accounts from the respondents company. It is alleged that thereafter the appellant had started selling similar boxes with the words "Universal Ind". The respondents filed a suit alleging passing off by the appellant of his goods for injunction and other consequential reliefs.

(2.) It is a common case that neither the appellant nor the respondents are the manufacturer of the boxes. They purchased them from the other manufacturers and sell them under their names. I have seen the boxes sold by both of them bearing different sizes and shades. There is a soft base at the bottom covered by velvet perhaps this would make them jewellery boxes. The boxes are purchased from the manufacturers and sold to the shops selling jewellery. They are not sold to general public. On getting the orders from the jewellery shops their names are printed on the jewellery boxes. The mark "Universal" or "Universal Ind" is embossed at the bottom of the boxes. It is true that the respondents are using the word "Universal" prior in point of time and have earned some reputation and market as the sale shows. It is also a fact that the appellant was working as an employee of the respondents for 5 years and, therefore, not only knew the manufacturers but also the customers of the respondents. There is no doubt that the word "Universal" is a common descriptive word but it is too much to say that it has acquired uniqueness or distinctiveness so as to identify the boxes sold by the respondents. In other words it cannot be said that abiding association should be established between the word and the reputation of the plaintiff in the market. I have examined the boxes of the respondents and I find that on some boxes the word "Universal" does not appear at all. On some boxes it is specifically mentioned the word "Universal". On the third set of boxes word "Universal" it written in italics. It is, therefore, difficult at this stage even to prima facie assume that uniqueness and distinctiveness is established by the respondents. It will need evidence of more probative value. The respondents have not produced any affidavit from their customers that they are being misled or being offended by the appellant' boxes. The customers of these boxes are not lay. public. They are the shop selling jewellery. They are not likely to be confused or deceived by the appellant boxes. In any case the boxes are not of such a special variety nor are they very expensive. Most of the boxes are of the price of less than Rs. 10.00. Number of authorities were cited by both the sides before me. I am inclined to discuss them because my findings are likely to influence the final decision of the suit pending before the Additional District Judge and the matter is only at the stage of interim injunction. The business interest of the respondents would be adequately protected if the appellants are directed to make quarterly return to the trial court of all the purchases and sales made by the appellants till the disposal of the suit. Naturally the appellants would be liable to make over the profits to the respondents if they finally succeed in the suit.

(3.) The learned Additional District Judge has correctly pointed out the factors to be considered in a passing off action. However, the error is committed in applying this principle to the facts of the present case. The impugned order dated September 3, 1983 passed by Shri P.K. Bahri, Additional District Judge is set aside. Nothing said in this order should be treated as final expression on the merits of the case and the learned Additional District Judge should be free to come to his own conclusion after the full trial of the case. Parties are left to bear their own costs.