VIDARBHA DISTILLERS Vs. VIDARBHA BOTTLERS PVT LTD

JUDGEMENT

(1.) ORIGINAL plaintiff has filed this appeal against Order under section 104 read with Order 43, Rule l (r) of the Code of Civil Procedure challenging order dated 27th January, 2003 passed in Trade Mark Suit No. 3 of 2002 below Exh. 5 by learned Second Additional District Judge, Nagpur. The learned Judge has rejected the application for grant of temporary injunction in favour of the applicant in the pending trade mark suit. Relief sought was for restraining the present respondent/defendant from imitating label of product "santri 5000" and other similar labels.

(2.) THE appellant filed suit against the present respondent stating that it is carrying on business of manufacturing and sale of country liquor since 1975 and since then it is using Tiger head as its monogram. It is the case of the appellant that the said monogram is printed not only on its product but on its stationery, printing material, calendars etc. In 1992 appellant manufactured country liquor under the name "santri 5000". On the label thereon, above monogram of Tiger head and in the middle of the label there is design of Goblet with brand name 'santri 5000' printed in yellow colour. Rest of the label is in red colour with emphatic black border. Except brand name 'santri 5000' other words are in black while brand name is printed on the goblet is in red colour. It is stated that appellant was granted requisite permission by Commissioner of State Excise on 25-3-1992 to use this label. It is further mentioned that sometime in the month of august, 2000 the appellant learnt about the product of respondent which is styled as "santra Deluxe 5000". This product of respondent is introduced in the month of May, 2002. There appears to be some mistakes while narrating the facts in this connection as the knowledge is of August, 2000. It is further stated that the respondent have copied label of the appellant. It is alleged that the colour scheme style and design of their label are almost similar and also imitating the brand name of the product of the appellant. It is stated that instead of Tiger Head they are using Panther and it is mentioned that it is Panther Brand. It is the case of the appellant that the said label is deceptively similar and customers are misled by it. The appellants have filed their labels and also disputed labels on record along with appeal memo.

(3.) THE appellants filed Civil Suit vide Trade Mark Suit No. 3 of 2002 under section 105 of Trade and Merchandise Marks Act, 1958 and prayed for decree of declaration that respondents have no right to imitate their labels with further direction to the respondent to destroy the offending labels which are under their possession on the finished goods in the factory as well as finished goods lying with the wholesalers and dealers and also to take steps for cancellation of the said labels from Commissioner of State Excise. The respondent appeared in that suit and filed their reply denying all the allegations. It was their case that their label was distinct and can be easily distinguished and customers were not confused. The learned lower Court after hearing both sides rejected the prayer for grant of temporary injunction on 27-1-2003. The said order of rejection is challenged in the present appeal against order which appears to have been filed on 20th March, 2003. The matter was first circulated for 10th April, 2003 on which date notices were issued. Thereafter the matter was fixed on various dates for admission and on 27-11-2004 also it was for admission. On the said date, parties requested the court to dispose of the appeal finally since it was pending for a long time. On 29-11-2004 both the parties have filed list of citations on record. Hence, Rule. Heard finally by consent of the parties.