SAMRAT BIDI WORKS Vs. DAYALAL MEGHJI AND CO

JUDGEMENT

(1.) This appeal is directed against the order dated 9-7-96 passed by the Distt. Judge, Raipur in Civil Suit No. 13-A/95 directing the applicants/defendants by ad interim order, not to manufacture any labels bearing No. 645 or bearing deceptively similar makes as used by the respondents/plaintiffs for their Badshari Pharmaishi special bidi No. 345. The wrapers of the plaintiffs bidi on their Kattas and Pudas bear the following markings, figures and pictures. The pictures and figures of the plaintiffs are registered since 1958 registered regarding trademark of yellow patti with trademark No. 185955, round label/tikli as trademark No. 186529 and trademark yellow patti plus Jhilli registered together as trade mark No. 187667 and finally trademark of one composite wrapper including yellow patti, tikli and Jhilli printed on a single composite wrapper registered together as trademark No. 305848 since 28-5-75. The figures marking and pictures used by the defendants on the Samrat Bidi Katta and Pudas are also depicted for comparison :-

(2.) The trial Court observed that on seeing the 2 wrappers of the 2 parties the differences between them can only be noticed on a very close scrutiny and close comparison by putting them side by side otherwise on a courtesy look the differences do not look perceptible. He noticed that the pictorial impressions conveyed by them are merely similar. So the trial Court was of the opinion that the wrapers prepared by the appellant were deceptively similar to the wrapers of the respondent. The trial Court had observed that a man of common intelligence would be misled in purchasing the bidis of the defendant as bidis of the plaintiffs. So the balance of convenience was found to be in favour of the plaintiff. It was noticed that the defendant was not using its wrappers for long period and has not obtained any registration about his marks. With these observations interim injunction order was passed in favour of the plaintiff against the defendant.

(3.) In the present appeal the contention of the appellant is that the wrappers used by them are distinctly dissimilar to those used by the respondent in their colour scheme, design, size, number, photofigures and also the monogram used therein. So there could be no chance of mistaken identity regarding bidis of the appellant being mistakenly considered as bidis manufactured by the respondent. So there is no prima facie case in favour of the plaintiff nor balance of convenience in their favour and they suffered no damage whatsoever by manufacturing or sale of bidis by the appellant. It is also urged that the appellant sales are confined to District Rajnandgaon and Durg and not to district Raipur where the plaintiffs are having their sales of bidis. Defendants manufacture and sale is continued since the year 1987.