CAMLIN PRIVATE LIMITED Vs. NATIONAL PENCIL INDUSTRIES

JUDGEMENT

(1.) We have heard learned counsel on the question of interim stay. Learned counsel for the respondent urges that no interim stay should be granted especially as the same has been disallowed by the learned Single Judge, and even the Suit was held to bs not maintainable under Order 7, Rule 11 of the Code of Civil Procedure. We have given anxious consideration to the various submissions made and are also conscious of the fact that this interim order will enure only during the pendency of the appeal.

(2.) However, we are largely induced to pass the order which we propose to pass, on a comparison of tne products which are the subject-matter of the litigation between the parties. We have before us cartons in which CAMLIN FLORA pencils and NATIONAL FLORA pencils are marketed. We have also the contents of these packages which consist of pencils, which to the naked eye appear almost exactly similar both in appearance and design. The significant fact concerning the two cartons, is that the word FLORA and ELORA is printed in a special type of large black print. Ornamentally, the design and apparently the two word FLORA and ELORA look almost exactly alike. This is so, because if a line is drawn under the F of Flora, it becomes Elora. There is a great deal of confusion between these two words because of the similar appearance and spelling, and also because of the similar appearance and the manner of printing, and the manner in which the two cartons have been manufactured. Similary, the small words 'CAMLIN' and 'NATIONAL' appear in white print on each carton. These two being white prints against a deep green background look distinctly similar. By the look of the whole carton with its floral background and general get-up an ordinary customer is liable to be confused as to which of these two cartons he is buying. He is likely to buy FLORA when he wants ELORA and buy ELORA when he wants to buy FLORA. It is, therefore, very desirable that these two cartons should look dis-similar. Without reference to what may be decided in the Suit, it is highly desirable that the customer should at least know which of the two brands he is buying. We would, therefore direct, and there is a measure of agreement about this that insted of the carton of NATIONAL ELORA being green in colour, it should bs blue in colour. Furthermore, the word ELORA should be spelt ELLORA and should be printed in a non-ornamental print so as not to look like the Flora of Camlin's product. With this change, the possibility of deception or mistake will be greatly reduced. This is our interim order as far as the carton is concerned. Now we turn to the internal products in the cartons, which are pencils. Here again we find that the pencils are very similar in appearance. There is a floral background consisting of little red flowers with green leaves. These are minute in size. There are five petals in National Elora flowers and four petals in the Camlin Flora flowers otherwise these flowers look very similar. The colour is also similar and there is green band at the end of the pencil. In short the two pencils look alike. It was stated before us that if a child is to buy a pencil out of these two, he is bound to be confused between the two pencils. It is submitted that normally such pencils are sold in small shops to children. It is, therefore, suggested that we should pass an order restraining the manner in which the florals are to be printed by National Elora and it is suggested that Flora and Elora pencils should look different. This brings us to the question whether we can say that there is a monopoly or right to prevent a similar-looking pencil being sold by the respondent in its present form. As far as we know a monopoly may exist in a trade mark, and it may sometime exist in design, or it may exist in a carton, but whether it exists in the actual product like a pencil is a different matter. For instance if two manufacturers of cakes may make similar cakes, can they be asked to make cakes of different colours or shapes It is a different matter if some distinctive packing or name is copied. This question seems to be one unique difficulty, and we would refrain from expressing a view at the interim stage. However, we think we cannot prevent the use of the flowers on the pencils. All that we can do is to provide a minimum amount of identification between the two products. This could be by a difference of colour between the two. Hence the minimum order we can pass at this stage, is to restrain the green band on Elora pencils. We direct the respondent to use a blue circular band instead of green at the end of the pencil, and thus the appellant will use a green band on the pencil and a green carton and the respondent would use a blue band and a blue carton. With these directions the C.M disposed of.

(4.) As far as the appeal is concerned, it should be listed within a year or earlier, because it has a certain amount of importance as far as trade mark cases are concerned.