SSG PHARMA PVT LTD Vs. AMAR NATH

JUDGEMENT

(1.) This appeal is directed against the order dated 3rd March, 2005, delivered by learned Additional District Judge, whereby the application moved by the appellant/plaintiff under Order 39 Rules 1 and 2 in a case under the Trade Marks Act was partly allowed. The operative portion of the impugned order runs as follows: "12. However, from the perusal of the pouches of both the parties which are on record I am of the opinion that defendant has adopted the color scheme with pictures of a boy and a girl as that of the plaintiff's in order to attract to themselves some part of plaintiff's goodwill and trade on their representation and in fact to represent the public that their goods are the goods of the plaintiff's this is a case of passing off. Any one, in my opinion, who has a look at one of the pouches today may easily mistake other if shown on another day as being the same article which he had seen before. If one was not carefully enough to note the peculiar features of the plaintiff's wrapper, he might easily mistake the defendants wrapper for the plaintiff's, if shown to him some time after he had seen the plaintiff's. The defendants use of the colour combination with pictures of a boy and a girl on their wrappers is likely to cause confusion and deception to the purchasers of average intelligence and imperfect recollection. The colour scheme and the photograph of the children would certainly deceive the consumers. 13. In these circumstances and for the above said reasons, I party allow the application and restrain the defendants from manufacturing, marketing or offering for sale, advertising and selling their product SIDHMOLA under the identical red and yellow coloured label/pouch/wrapper with photograph of a boy and a girl which may be identical and/or deceptively similar to the applicant's red and yellow coloured lable/pouch with photograph of children in relation to the Ayurvedic medicines, chewable tablets, churan, etc. It is clarified that there is no stay against the use of trade name SIDHMOLA by the defendant. Application stands disposed of. However, anything expressed herein above shall not tantamount to an expression of opinion on the merits of the case. No order as to costs."

(2.) The facts of the present case are these. the appellant is carrying on its old and established business as manufacturer and merchant of ayurvedic medicinal preparations, churan, chewable tablets etc. under the name and style of SSG Pharma Private Limited. The appellant is the proprietor and owner of trade mark "SATMOLA". The appellant is registered under the Copyright Act since 1983. According to the appellant, on 7th December, 2004, it transpired that the respondent had launched a similar tasty chewable tablet bearing deceptively similar inner and outer pouch packagings having red and yellow colour combination and device of two kids. The get up of the pouch packagings of the respondent is deceptively similar to those of the appellant and the said fact is evident on a bare perusal of the competing inner and outer pouch packagings of the parties. The respondent has also placed the descriptive matters as well as slogans at almost the same placement in the pouch as that of the appellant.

(3.) The respondent contested the present case. Its principal, defence was that his trade mark "SIDHMOLA" is totally different, phonetically as well as visually, than that of the appellant's trade mark "SATMOLA". There is no confusion or deception in the minds of the consumers. His trade mark "SIDHMOLA" was already registered in his name under the Trade Mark Act, 1999. It is further stated that the respondent has been using trade mark "SIDHMOLA" on their packaging by depicting the same in a special and particular artistic manner wherein each alphabet of it had been represented artistically in different colors along with picture of two kids (one boy and one girl) and a joker with some descriptive phrases. It is pointed out that the aforesaid artistic work on the respondent's packaging is the original artistic work totally different than that of the artistic work on the packaging of the appellant.