THAKKAR BALVANTRAY PURSHOTTAMDAS Vs. HASMUKHBHAI UGARCHAND PATEL

JUDGEMENT

(1.) This appeal from order is filed by original plaintiff against the judgment and order passed by the learned City Civil Judge, Ahmedabad, dated 7/01/1993 whereby he has vacated the ad interim relief granted earlier in favour of the appellant-plaintiff and has dismissed the Notice of Motion taken out by the appellant-plaintiff.

(2.) It appears that the appellant-plaintiff instituted Civil Suit No. 5928 of 1992 in the City Civil Court for permanent injunction restraining the respondent-defendant from manufacturing, advertising and marketing his product "DHANANI DAL" under the name "MARUTI" and/or under the name which may be identical or deceptively similar to the name of the product of the appellant-plaintiff, namely, "MARUTI". It is pertinent to note that the respondent-defendent has prior thereto instituted Civil Suit No. 5330 of 1992 in the City Civil Court wherein he has prayed for mandatory injunction directing the present appellant-plaintiff not to make use of the word "R" indicating that his mark is registered while doing business of selling Dhanadal. He also prayed for declaration that the present appellant-plaintiff was not the owner of words "MARUTI" and for permanent injunction restraining the appellantplaintiff from selling his product "Dhanadal" by making use of the word "MARUTI". Said suit was instituted on 21/10/1992.

(3.) It is pertinent to note that both the appellant-plaintiff and the respondent-defendant are manufacturing Dhanadal which is used as "MUKHVAS" in Gujarati it sort of bite after meal. Both are using the word ''Maruti" to describe their product. Both have started selling their product in decorative pouches. The appellant-plaintiff is describing his product as "APPOLO MARUTI MUKHVAS". The pouch in which the appellant-plaintiff is selling his product also contains writing ''BHAVANI GRIH UDYOG". On that very side of the pouch the letter "R" is mentioned in a circle suggesting Maruti mark to be a registered trade mark. On the other side of the pouch the words ''Maruti Super Dhanadal" are mentioned. The colour scheme of the label is dark Blue and Yellow. The letters are written either in White or in Red colour. As against the description of the aforesaid pouch the respondent-defendant is selling his product as "MAJEDAR MARUTI DHANADAL". The aforesaid words are written in Hindi on one side of the pouch while those very words are written in English on the other side of the pouch. The colour scheme employed by the respondent-defendant is Orange-Red and White. The colour scheme employed by the appellant-plaintiff and the respondent-defendant in their respective plastic pouches, and the outward get up of both pouches is so strikingly different that the pouch of one is not likely to be understood as pouch of another. The words "Dhanadal" are the description of the product, or they can be said to be the name of the product. The appellant-plaintiff describes his product as "Maruti Super Dhanadal" while the respondent-defendant describes his product as "Majedar Maruti Dhanadal". The word "Super" employed by the appellantplaintiff is simply a description of his product, and similarly the word "Majedar" employed by the respondent-defendant is also description of his product. On comparison of two respective pouches the trial Court has come to conclusion that the colour scheme employed, and the outward get up of both the pouches are so totally different that they are not likely to cause any deception or confusion in the mind of an average customer even though he is illiterate, and therefore, the trial Court recorded a finding that prima facie the respondent-defendant cannot be said to be guilty of passing off, and hence, the trial Court vacated the ad interim relief granted earlier in favour of appellant-plaintiff.