DALIMA BISCUIT PRIVATE LTD Vs. TEZ BISCUIT FACTORY

JUDGEMENT

(1.) This appeal arises out of a suit for permanent injunction restraining infringement of copyright, passing off, rendition of accounts, damages, etc., under Section 55 of the Copy rights Act, 1957. The suit has been dismissed by the trial Court vide its order dated 23rd July, 1974. Feeling aggrieved against this, the plaintiff-appellant has come up in appeal to this Court.

(2.) The plaintiff-appellant is a Private Limited Joint Stock Company, having its registered office at Rajpura, carrying on the business of manufacturing and sale of biscuits, bread and confectionery under the name and style of Dalima Biscuit Private Limited previously known as Patiala Biscuit Manufacturers Private Limited. The products of the plaintiff company were being manufactured and sold in distinctive wrappers bearing the trade mark *DALIMA* and further that one of its products was "Dalima THIN ARROWROOT BISCUITS" which was being sold in a packing wrapped in distinctive artistic wrappers on which of words "DALIMA" appeared in logo script on red rectangular blocks with descriptive expression "DELICIOUS THIN ARROWROOT BISCUITS" in blue circles repeated at short intervals surrounded by oval shaped devices formed in blue lines forming oval jug shapes in which the mark "ISI" and the expression "CONTAINS PERMITTED COLOURS & ESSENCES" appeared in a special formation and this artistic design was repeated at short intervals with the name of the plaintiff appearing in alternative oval jug shaped devices. It was also the case of the plaintiff that these wrappers were regularly used by the plaintiff for the last one decade and were registered under the provisions of the Indian Copy Right Act, 1967 as a result of which the plaintiff had exclusive right to use the same and by constant use for a number of years the plaintiff's wrappers had acquired a wide reputation in the eyes of the trade and public. The plaintiff alleged that some other traders had tried to imitate the design of the wrappers of the plaintiff but the plaintiff was successful in restraining them from making use of such wrappers. Regarding the defendant it was pleaded that M/s. Tej Biscuit Factory had adopted identical artistic work in relation to its wrappers in order to deceive the public and in order to cause confusion in the trade with the intention of earning illegal profits. The description of the wrappers, used by the defendant, was also detailed in para 7 of the plaint. It was also the case of the plaintiff that the defendant had earlier adopted wrappers with the name of "DELICIOUS" and "Tej In logo-script on red rectangular blocks with descriptive expression "DELICIOUS THIN ARROWROOT BISCUITS" in blue circles. The plaintiff pleaded that defendant had adopted artistic work of the plaintiff without permission or license resulting in financial loss and also loss in reputation to the plaintiff with the result that the plaintiff prayed for the following reliefs from this Court :-

(3.) The suit was contested by the defendant who challenged the right of Shri G.P. Mittal who had instituted the suit as the duly constituted attorney of the plaintiff and denied the assertion of the plaintiff that the wrapper used by the plaintiff was distinctive and that the plaintiff had the exclusive right to use the same. It was pleaded by the defendant that such type of wrappers, as used by the plaintiff, were commonly used by the persons doing the same business as that of the plaintiff. The defendant produced four specimens of wrappers (Exs. D1 to D4) and it was pleaded that the wrappers of the type (Exs. D1 and D2 were being used by it from 1961 to 1970 and thereafter, the wrappers of the type Exs. D3 and D4 were being used by it. The defendant also pleaded that it was not aware of the registration of the wrapper Ex. P4 under the Indian Copyright Act, 1957 . It was denied that the wrappers of the plaintiff (Ex. P4) had any special features or that the plaintiff had acquired any reputation by the use of that wrapper. The defendant alleged that it was running a small industry and the only object of the suit was to drive the defendant out of the market. It was also denied that the wrapper of the plaintiff (Ex. P4) was identical with the wrappers used by the defendant (Exs. D1 to D4). It was denied that the use of the wrappers by the defendant had resulted in any deception or confusion. Some distinctive features of the wrappers used by the defendant were pointed out in para 7 of the written statement. A plea of estoppel was also raised on the ground that the plaintiff had never objected to the use of the wrappers Exs. D1 to D4 by the defendant for a sufficiently long time. Some preliminary objections regarding maintainability of the suit and the same being malacious were also raised. On the pleadings of the parties, the trial Court framed the following issues :-