CAMLIN PRIVATE LIMITED Vs. NATIONAL PENCIL INDUSTRIES

JUDGEMENT

(1.) The plaintiff has preferred this suit for permanent injunction restraining the defendants from manufacturing, selling offering for sale or dealing, in the pencils bearing the distinctive floral design, colour combination, lay out and arrangement of artistic features of the plaintiff's pencil FLORA and from reproducing the floral design, colour combination, lay out and arrangement of artistic features of the cartons pertaining to the their FLORA pencils and from doing any other thing as is likely to infringe the plaintiff's copyright in respect of its FLORE pencil cartons and also restraining the defendants from maufacturing, selling or dealing in pencils under the trade mark FLORE or any other mark as is identical to and/or deceptively similar with the trade mark FLORA of the plaintiff.

(2.) The case of the plaintiff as set up in the plaint, is that the plaintiff is one of the lagest manufacturers of art and stationery materials and is exclusively marketing the goods of its manufacture for the last 40 years and one of the famous products of the plaintiff is its Camlin FLORA pencils which are highly distinctive and are manufactured and sold in distinctive and artistic cartons since the year 1977. The distinctive features of plaintiff's FLORA pencils are stated to be a colour combination of white, pank and green. The rear portion of the pencil has got two strips of white and green next to each other respectively. The floral design comprises of array of pink flowers with green leaf each on white background The trade mark Camlin FLORA of the plaintiff appears on the rear portion of the pencil. Each flower has got a characteristic look about it and the arrangement of the leaf with the flower is unique. The distinctive and essential feature of the plaintiff's FLORA pencil carton is also an array of pink flowers each with a green leaf arranged in rows appearing on the thin strips of white colour background on the two sides of the front panel of the said pencil carton. On account of extensive use Camlin FLORA pencil and the carton have acquired a vast reputation as a high quality product originating exclusively from the plaintiff. The plaintiff claims to be the owner of the copyright in the floral design that appears on Camlin FLORA and its cartons as it constitutes an original artistic work. The use, including the resproduction and publication of scuh floral pattern and arrangement on pencils and cartons by any other trader amounts to-infringement of the plaintiff's copyright in the said artistic work. The plaintiff also claims to have got copyright in the artistic logo script of the trade mark FLORA as the same is an original artistic work.

(3.) The defendants who arc alleged to be carrying on the business of manufacturing and selling of pencils have without the permission and consent and licence of the plaintiff recently adopted pencils cartons and pertaining thereto that are identical to and/or deceptively similar with the plaintiff's FLORA pencils and cartons. The defendents have also adopted a deceptively similar mark FLORE to the trade mark FLORA of the plaintiff in relation to three said pencils. The defendant's pencils comprise of colour combination of green, pink and white. The rear portion of the pencil consists of to strips of white and green colours next to each other respectively as on plaintiff's pencils. From thereon till the lead of the pencil there are floral designs as on plaintiff's pencil. The defendants have copied the plaintiff's pencil in toto and it is bound to cease confusion and and which demonstrates the malafides on the part of the defendants. The mala fides of the defendants is abundantly clear from the deliberate adoption of the mark FLORE as the four letters namely FLOR are common between the two trade marks and even the letter 'E' of the defendants' mark FLORE is deceptively similar in logo script to the letter 'A'. The pencil of the plaintiff is known by the mark FLORA and the floral on them in colour combination of pink, green and white. The adoption and use by the defendant No. I of its FLORE pencil being a colourable reproduction of the plaintiff's FLORA pencil amounts to infringement of the plaintiff's copyright in the said pencil. The adoption and use of the word FLORE in respect of the pencils being deceptively similar to the plaintiff's trade mark ELORA, phonetically as well as visually amounts to infringement of plaintiff's registered trade mark. The plaintiff has got an exclusive right under the law to the use of Camlin FLORA pencils, the trade mark FLORA and the cartons pertaining thereto and the floral parttern of the pencils. The plaintiff came to know in the month of April, 1935 about the unlawful adoption and use by the defendants of the trade mark FLORE in relation to the pencils and despite various notices the defendants have not stopped the use. The plaintiff has suffered losses of the illegal trade activities of the defendants.