KELLOGG COMPANY Vs. PRAVIN KUMAR BHADABHAI

JUDGEMENT

(1.) This is an appeal by the plaintiff, Kellogg Company against the order of the learned Single Judge in IA 2094/94 in Suit 432/94 dated 31.10.95. By that order, the learned Single Judge dismissed the application of the appellant for grant of temporary injunction under Order 39 Rule I Civil Procedure Code against the respondent. The dispute pertains to trade-mark, emphasis being on trade-dress. Though reference is made in the grounds of appeal to the carton being a piece of artistic work within Section 2 (c) of the Copyright Act, arguments were mainly focussed on 'trade dress'.

(2.) The appellant Kelloggs Company sells Corn Flakes with cartons which describe the cartons as Kellogg's CORN FLAKES' (the original and the best). The respondent is selling corn flakes using a carton more or less similar in size In with the title "AIMS ARISTO CORN FLAKES" written just at the place where appellant's display the words 'Kellogg's CORN FLAKES'. This is done at the the hand top of the carton. The appellants grievance in the suit as well as in the IA was that the carton was likely to confuse the buyers of corn-flakes and there was every likelihood of consumers purchasing the respondent's goods in the belief that they were of the appellant. The learned Single Judge after referring to the case-law pertaining to 'trade dress', of the appellant dismissed the IA observing:

(3.) On that basis, the learned Judge stated that the appellant had not proved prima facie case nor balance of convenience and hence no injunction could be granted.