M A RAHIM Vs. ARVIND LABORATORIES

JUDGEMENT

(1.) THE instant appeal under Clause 15 of the Letters Patent of this court has arisen in a proceeding in Applications No. 1255 and 1256 of 1985 in C.S. No. 130 of 1985, a suit based on a claim, a registered trade mark, which, according to the plaintiff-respondent, was being violated by the defendant-appellant. A learned single Judge of this court, on being satisfied that there has been such infringement by the defendant-appellant herein, has granted temporary injunction and allowed I.A. No. 1255 of 1985 and also ordered in Application No. 1256 of 1985 the defendant-appellant to furnish information, as sought for by the plaintiff-respondent

(2.) PLAINTIFF-respondent has been manufacturing, according to it, 24 different types of products and marketing the same under its trade mark 'Eyetex'. One P. K. Vasudevan, in fact, had got the said trade mark registered as early as in 1946. The plaintiff got assignment of the said mark and thus came to trade in the mercantile of 24 different types with the trade mark "Eyetex". According to the plaintiff-respondent the mark was/is not confined to the words "Eyetex", but it had/has pervasive extent on the entire circular plastic capsule, black in colour, on the face of which "Eyetex" is embossed and the wrapper upon the capsule, on which directions for the use are recorded. The mark also has a distinctive colour combination and "Eyetex" thus, as a product of the plaintiff-respondent, has prevailed in the market. Some time in the middle of 1980, according to the plaintiff-respondent, it learnt that the appellant had obtained registration of a trade mark "Eyetex" under No. 3515/75 in class 3 for cosmetic toilet preparations, (filed on 19.7. 1979 the mark, for which registration was obtained, consisted of the stylized name of "Eyeris" and the drawing of an eye). Although this mark had been advertised in the Trade Mark Journal, the plaintiff-respondent did not notice it and thus the defendant-appellant got the registration of the mark, which is almost an exact copy of the plaintiff-respondent's mark of "Eyetex" phonetically, visually and structurally. The defendant-appellant's case, in response to the application before the court below, was that he was/is the proprietor of the mark 'Eyeris' which is a registered trade mark, he has committed no violation of any law in marketing his products with the trade mark 'Eyeris'. In short thus in the case before the learned single Judge as well as before us, there is no controversy as to the registration of the trade mark of the plaintiff-respondent, and the shape, size, colour combination, etc., of the mark upon the products of the plaintiff-respondent. The defendant-appellant had/has got the registration of the trade mark and thus he has asserted before the learned single Judge and has asserted before us as well that he had/has every right to trade with the mark 'Eyeris'

(3.) WE are faced in the instant case, thus, with the plaintiff-respondent's 'Eyetex and the defendant-appellant's 'Eyeris' : both are for selling cosmetic preparations of the plaintiff-respondent and the defendant-appellant. According to the plaintiff-respondent their 'Eyetex' is a mark not confined to the words only, but is for the entire drawing on the cover or wrapper with which their products are sold. Defendant-appellant's "Eyeris", according to the plaintiff respondent is confined to the letters constituting the word and not beyond that. The case of the plaintiff-respondent has been accordingly, that the defendant-appellant has violated their trade mark phonetically by using 'Eyeris' to resemble the sound in pronouncing 'Eyetex' and has done so to deceive the consumers, who are all common folk. The phonetic expressions of the words 'Eyetex' and 'Eyeris' according to the respondent, are in any event likely to confuse any person as to the identity of the goods produced by the defendant-appellant with that of the plaintiff-respondent. In any case, there is a clear visual and structural violation (Structural violation is something brought, according to the learned counsel for the plaintiff-respondent, in the structure of the drawing and the combination of the colours) of the plaintiff respondent's trade-mark 'Eyetex' by adoption of a similar design by the defendant-appellant on the cover and the wrapper under which the goods are sold by them