JOTHI CHEMICALS AND DETERGENTS Vs. JYOTHY LABORATORIES A 14 M AND M CO OP HOUSING SOCIETY SHREEKRISHNA NAGAR BORIVALLI EAST BOMBAY

JUDGEMENT

(1.) THE applicant in O.A.No.244 of 1995 in her affidavit contends briefly as follows: THE applicant is manufacturer of liquid whitening agent/Fabric Bright-ener or Instant Action Liquid carrying on business on a large scale for a period of several years throughout India, more predominantly in Kerala. She had adopted the word "Jothi" in respect of the product manufactured and marketed by her. THE product "Jothi Fabric Whitener" is sold in a blue plastic, oval shaped container which is flat on two surfaces with an elongated and tubular neck and a white screw-on plastic cap. THE label is berthed on the face of the bottle in a perfect oval shape on the front face of the container. THE front face is outlined in white enclosing the logo of the applicant's concern on the top and below that the applicant's trade mark and trade name Jothi is printed in large letters. THE words "For Fabric Whitener. aided by K.K. & V.I.B. Max.Retail Price 4.50 (inclusive of all taxes), Jothi Chemicals and Detergents. Orumanayoor, Pin 680 512, Mfg.Dt." are all printed in distinct Arctic White print against the blue coloured container, in the above described oval outline and below the word "Jothi Industries"", the words "A Khadi product" is printed outside the base of the oval described supra. On the reverse of the container, the oval is embossed along with its content i.e., 75 ml. and the instructions for use. THE name of the applicant is also embossed at the base of the said oval along with the address of the applicant. THE product is manufactured in a small scale as a cottage unit. THE applicant's product has established itself as a quality product and the applicant's product has been identified as a high quality product. Large Scale Production started as early as 1988. THE applicant is therefore is the earliest user of the name Jothi Fabric Whitener. THE name has been independently conceived and artistically designed with the colour scheme and the applicant is the sole and absolute owner of the same.

(2.) THE respondents have been manufacturing and marketing their product named Ujala in a similar blue flattened container with an oval on two sides of the container and on the front face of the container. THE letters are printed in light blue with the placement of words similar to that of the applicant's products. THE reverse of the bottle also in a fashion similar to that of the applicant's product. THE respondent's product let into the market is identical and deceptively similar to that of the applicant so as to pass off their product as that of the applicant. THE name Ujala is written in the place of the plaintiff's trade name Jothi and the screen printing on the front face of the container is in light blue as against bright white of the plaintiff's product. THE words and letters printed in the container of the respondent are cliptical in shape as against the clear oval of the plaintiffs. THE words "A Khadi Product" are absent. THE respondents are trying to encash the reputation and goodwill earned by the applicant. In the legal notice, the respondent has stated that purchasers demand their product as Jothi Whitening Agent and it would clearly demonstrate beyond any doubt that the respondent is passing off their goods as that of the applicant, by causing confusion among the customers and the general public. THE respondent is misrepresenting their goods as that of the applicant's product "Jothi Fabric Whitener" with (he intention to cause confusion and deceive the unwary purchasers and general public and has copied the colour scheme, get up, lay out etc.. and are passing off their goods. THE loss and damage to the business of the plaintiffs amounts to more than Rs.7 lakhs. Hence the application to restrain the respondent from passing off the respondent's product "Ujala" as that of the plaintiff's product "Jothi Fabric Whitener".

(3.) THE respondent has filed Application No.21 1 8 of 1995 for vacating the ad-intcrim injunction contending briefly as follows: THE plaintiff's version that since 1980, they arc using the trade mark "Jothi" in a blue plastic ova! shaped container is not correct. THE plaintiff has to register the Firm under the relevant provisions of the Kerala General Sales Tax Act. THE plaintiff registered itself under the Sales Tax Registration with effect from 22.6.1991.THEy registered it as a tiny small scale industry. THE product of the plaintiff therefore could not have effected any sales prior to the registration on 22.6.1991.THE allegation that the plaintiff's product has established itself as a quality product and has been identified as a quality product is baseless and unwarranted. THE allegation that the applicant had attained on express right as earliest user in respect of the name "Jyothi Fabric Whitener" under the Trade and Merchandise Marks Act and Copyright Act is false. THE plaintiff has started using the blue bottle only recently. Formerly, the plaintiff was using green bottle with different descriptive matter printed in yellow colour thereon. Since last few months alone, the plaintiff has changed her green bottle with yellow printing to blue bottle with white printing. Since 1982-83, the defendant has been regularly and extensively manufacturing and selling liquid optical whit- ener in the defendant's blue coloured bottle, having an unique and distinctive shape, configuration and pattern as also having an artistic trade mark label imprinted thereon. THE defendant has effected large arid ready sales of his optical whitener since 1982-83. THE defendant has carried out extensive advertisement and publicity campaign of his goods sold in the said bottle and had expended lakhs of rupees on sales promotion and publicity and advertisement of his goods. THE product of the defendant has acquired immense and wide reputation and popularity among the members of the trade and public throughout India, particularly in the State of Kerala, Tamil Nadu, Karnataka and West Bengal. THE product of the defendant is known throughout Kerala and Tamil Nadu since 1982-83. THE plaintiff was using a descriptive matter on her green bottle and it has been changed and she is now using the descriptive matter in her blue bottle. THE descriptive matter in the new bottle is identical to the descriptive matter appeared on the defendant's blue bottle. THE plaintiff has changed the descriptive wording on her green bottle to the wording in the blue bottle and it is not coincidence. THE plaintiff's husband Mr.Mohanan is a general merchant and amongst other articles, he has been selling the defendant's product since 1989. the said Mohanan has been assisting his wife, the plain-tiffin the conduct of the business of the plaintiff. He was aware of the product of the defendant, and the reputation it was enjoying. It has prompted the plaintiff to imitate the defendant's product. In the notice, the defendant has stated that the defendant has been manufacturing and selling the products continuously J from 1982-83. THE suit and the application are belated. THE defendant is the first adopter and user of the trade mark label and the bottle. THE plaintiff is not the owner of a registered trade mark Jothi Fabric Whitener with a distinctive container under the Trade and Merchandise Marks Act or Copyright Act or Design Act. She has only recently marked under "Jothi Fabric Whitener" in a container which is an imitation of the defendant's "Ujala" distinctive container. THE defendant's product is sold under the Trade Mark "Ujala". It is referred to by the Trade and public as "Jothi Product" as the word "Jothi" formed a prominent feature of the defendant's trading style. THE name "Jothi" is the daughter's name of the defendant. THE plaintiff has made an imitation of the defendant's Ujalacontainer, in colour scheme, get up label and widening in shape. THE plaintiff who has caused confusion and deception amongst the rival public by imitating the container of the defendant, has made false statement. THE balance of convenience is in favour of the defendant. THE plaintiff has to prove she reputation and goodwill claimed by them. THEre is no prima facie case in favour of the plaintiff. "THE application is therefore liable to be dismissed.