(1.) HINDUSTAN Lever Ltd. , has filed this suit against Nirma Private Ltd. , seeking permanent injunction restraining the defendant from using in relation to soaps or detergent powder the impugned carton, a photograph of which is annexed as Exhibit 'o' to the plaint, or any other deceptively similar carton. Both the plaintiff and the defendant manufacture various products inter alia, the detergent powder known in the trade as 'surf' and 'nirma' respectively. The plaintiff claims to be registered proprietor of various trade marks referred to in the plaint since decades. The plaintiff also claims to be owner of copyrights in various labels - artistic works used by the plaintiff on their cartons in relation to its product 'surf'. The plaintiff contends that since about March 1991, the defendant is indulging in colourable imitation of the plaintiff's trade mark and artistic labels and is passing off their product as if associated with the plaintiff. The plaintiff has framed its cause of action in the suit on the footing of alleged infringement of registered trade marks of which the plaintiff is proprietor, passing off as well as alleged infringement of plaintiff's copyrights in original artistic works referred in the plaint.
(2.) THE plaintiff is the registered proprietor inter alia of the following trade marks and artistic works :-
(3.) THE plaintiff contends that the essential feature of their trade mark consists not merely of the word 'surf' or 'starlight' but also consists of the device of a star flash or star burst with rays emanating therefrom, its colour scheme, and get up viewed as a whole. The defendant denies the allegation. The defendant has highlighted some of the dissimilarities in the two labels apart from denying the claim of the plaintiff. The above referred device of a star flash or star burst with rays emanating therefrom used by the plaintiff on its cartons for the product 'surf is hereinafter referred to as 'the star device' for the sake of brevity. The plaintiff has caused the said device registered with the Registrar of Copyrights as an artistic work under the Copyright Act, 1957. Since about February 1990, Shri Mohan Khare, as artist, has prepared the label with the star device after incorporating therein the picture of a lady and a young boy. Since February 1990, the plaintiff has been using the said artistic label (copy whereof is Exhibit 'd' to the plaint) on its cartons pertaining to the said product. The said now device is substantially similar to the star device coupled with the picture of a lady and a young boy. The application of the plaintiff for registration of this particular label i. e. Exhibit 'd' to the plaint is pending with Registry. No other manufacturer of the same or similar product has been using the above referred star device with similar colour scheme and get up or otherwise save and except the defendant. The defendant has also commenced user of the impugned device vide Exhibit 'o' to the plaint only since March 1991. Both the plaintiff and the defendant prominently use their word mark 'surf and 'nirma' respectively on their respective labels. The plaintiff claims exclusive right to use the above referred star device with the colour scheme and get up as used by the plaintiff on its carton since decades. The plaintiff contends that the defendant cannot be excused in law for colourable imitation of the said device merely because of their having introduced a few changes in the colour scheme etc. as indicated on label as Exhibit 'o' to the plaint.