POPE THE KING MATCH FACTORY A REGISTERED FIRM HAVING ITS FACTORY AT KAZHUGUMALAI AND PRINCIPAL PLACE OF BUSINESS AT KOVILPATTI Vs. THANGAMMAL MATCH WORKS ANUPPANKULAM

JUDGEMENT

(1.) This appeal is against the orders of the Principal District Judge, Ramanathapuram at Madurai, passed in I.A.No.725 of 1986 in O.S.No.101 of 1986, dismissing the said application filed by the petitioner for the relief of interim injunction restraining the respondents from using a trade mark for the product of matches, which is similar to the registered trade mark of the petitioner.

(2.) The facts of the case are briefly as follows: The petitioner is a registered proprietor of the trade mark consisting of a rose for his product of safety matches. The registration certificate is marked as Ex.A1. The respondent began marketing a product of safety matches with a cartonn containing. rose with the title White rose. No doubt, the respondent�s carton is in deep blue and deep green colours whereas the petitioner�s carton is in red and yellow colours. The lower Court, while dealing with the interim injunction application, compared both the cartons side by side and then came to the conclusion that the petitioner is not entitled to an interim injunction on the ground that there is difference in the colour and there are other distinguishable differences, and on that ground, the petitioner is not entitled to any relief in the application.

(3.) At the outset, I must state that the manner in which the learned District Judge proceeded to deal with the application is incorrect. It has been pointed out in reported decisions more than once that in such matters, the Court should not compare the two marks to find out the difference and then come to a conclusion, but place itself in the position of an unwary purchaser and then decide the question whether any unwary purchaser is liable to be misled bearing in mind the imperfect recollection of any unwary purchaser. Since the lower Court has not dealt with the matter in the proper perspective, I have no hesitation in setting aside the order of the lower Court.