MARICO INDUSTRIES LTD Vs. SARFRAJ TRADING CO

JUDGEMENT

(1.) PLAINTIFF No. 1 carrys on the business of manufacturing and marketing various products including edible oils. Plaintiff No. 2 was the erstwhile proprietor of the copy right in the artistic work as exhibited at Exh. A and Exh. B. Plaintiff No. 2 has now assigned those rights in favour of Plaintiff No. 1. The case of the Plaintiffs is that the defendants have infringed their copyright in the artistic work by marketing the goods under the trade mark "cocosagar". The label and the artistic work on the containers used by the defendant is as displayed on the containers and sachets at Exh. F. It is further case of the plaintiff that due to excellent quality and the extensive publicity of their products, they enjoy good reputation and good will all over India as also abroad. The sales figures have been set out in Paragraph 9. The amounts spent on advertisement from the year 1997 to 2001 as set out in Paragraph 10. Plaintiffs have further pleaded that some time in the year 1999, they learnt that one Abdul Sattar Oomar was manufacturing and selling the coconut oil under the mark Cocosagar with the same get up, colour scheme, artistic work and lay out as that of the Plaintiffs products. A Cease and Desist notice dated 25. 2. 1999 was served, calling upon the said Adbul Oomar to stop using the impugned labels and marks. A reply came to be sent by M/s. Global Trading Company, Copyright, Design, Trademark Attorneys and Consultants on behalf of Sarfarz Trading Company claiming to be the real and original inventors, originators, adopters and users of the trade mark Cocosagar in association with the distinctive features in respect of coconut oil by the letters dated 25. 2. 1999 and 19. 3. 1999. The case of the Plaintiff is that on making further enquiries, they learnt that the aforesaid person had stopped manufacturing and selling the products. As the infringed goods were not available in the market. Plaintiff did not initiate any action against the said Abdul Sattar Oomar. It is their case now that around May, 2001 they learnt that infringing goods bearing an almost identical artistic work as that of the Plaintiffs were available in the market in Hyderabad under the trade mark "cocosagar" superimposed thereon in white colour. It is averred that the entire label is an infringement of the Plaintiffs copyright in the artistic work described in Exh. A above. There are some other averments pertaining to criminal complaint filed by the Plaintiffs. As and by way of permanent relief injunction has been sought to restrain defendants from infringing the copyright of the Plaintiffs in the original artistic work described in Exh. A to the plaint or by using the impugned labels Exh. F to the plaint or reproducing etc. There are other reliefs which have also been prayed for. The notice of motion is supported by affidavit of one Mr. M. Ravikiran, Manager, legal and Secretarial. Reliance is placed on the averments in the plaint. Relief sought for are in terms of Prayer Clauses (a) to (c ).

(2.) IN answer defendant No. 2 has filed reply. There are some averments as to why the motion should not be considered. That to my mind would be not necessary to dealt with. It is pointed out that the defendant No. 2 is the proprietor of defendant No. 1 and defendant No. 3 is in no way connected with the business of defendants No. land 2. That defendants No. 3 is carrying on business separately. It is defiled that defendants have infringed the Plaintiffs copyright in the artistic work. It is then set out that unless the mark is registered. Plaintiffs are not entitled to any infringement of their trade mark. It is denied that the Plaintiffs products as described in Para 6 have become distinctive to the Plaintiffs and has solely associated with them. Reference is then made in Paragraph 3 to the suit filed by the defendants against Plaintiff No. 1 where an application for injunction was also moved being I. A. No. 1008 of 2001. It is set out that an interim injunction has been granted restraining Plaintiff No, 1 and others claiming through them from interfering with the business transactions of defendant No. 1. In Paragraph 16 it is pointed out that the label with artistic work on the Plaintiffs products is no longer used by them. It is also set out that the Plaintiffs are aware that the defendants have been carrying on business since the year 1999.

(3.) HEARD learned counsel for the parties. It may be at the outset, made clear that in so far as colour of the bottle, coconut tree, there can be no monopoly and have been dealt with in earlier proceedings filed by the Plaintiff against some others. Considering that, the issue will be limited to the infringement of the copyright in the artistic work as set out in Exh. A and Exh. B. Though it has been contended on behalf of the defendant Nos. 1 and 2 that they are selling the products since 1999, no sales figures have been disclosed to show that in fact the defendants were selling and or marketing the goods using the label which is the subject-matter of the present action, it is clear from an ocular comparison of the label and the artistic work that apart from the word cocosagar the rest is nearly identical. Any reasonable person would arrive at the same conclusion. The Plaintiffs in the plaint have disclosed that the artistic work in the lable was done for them by Shombit R. Sengupta some time in the year 1977. The Defendant have not disclosed their source. Considering that to my mind it is clear that the Plaintiffs have made out a strong prima facie case to show that the defendant Nos. 1 and 2 have infringed their copyright in the artistic work. Once that be the case, balance of convenience is in favour of the Plaintiff as even in 1999 they had taken steps to stop the for use of the labels by the defendant. Irreparable loss and injury would be occasioned to the Plaintiffs if the injunction prayed for is not granted. Considering the reputation and goodwill that they enjoy in the market for their products.