SENGOTTUVELAM, J.


Application No. 5022/84


Application praying that this Court be pleased to pass an order of interim injunction restraining the respondents by themselves, their servants, agents, their printers and distributors by an order of this Court from committing an infringement of copyright the applicants have in their literary and artistic work being their literature of leaflet being Exhibit marked as Document No. 8 in the plaint by distributing, printing or causing to be printed Glucose D, Mangala's marked as Document No. 10 in the plaint or any other leaflet or artistic creation which is a colourable imitation or an infringement of the Applicants artistic creation, namely Document Nos. 8 in the plaint and passing off his goods as the goods of the plaintiff and respondents be directed to pay the costs of this application.


Application No. 5022/84 A


2. Application praying that this Court be pleased to pass an order vacating the injunction order dated 28-9-1984 in application No. 5022 of 1984 and the respondents be directed to pay the costs of this application.


3. These applications coming on this day before this Court, the Court made the following order :


4. In application No. 5022 of 1984, filed by the plaintiffs, an interim injunction was granted by this Court on 28-9-1984, restraining the respondent/defendant from using the offending carton to market the product produced by the defendant viz., Glucose powder. Now Application No. 5022A of 1984 is filed to vacate the said order of interim injunction by the defendant.


5. The averments made in the affidavit filed in support of the Application No. 5022 of 1984, are briefly as follows: The design of the carton in which the plaintiffs are marketing their products viz., Glucose Powder, is registered under the Copyright Act and the Trade and Merchandise Marks Act, 1958. Since the defendant is marketing his products in the carton similar to that of the plaintiff, thereby infringing the Copyright and the Trade Mark of the plaintiffs, the defendant is liable for passing off the goods. The product sold is a food product purchased by the members of the public on the advice of the doctors and the carton in which the defendant's product is marketed is an unbashed imitation of the carton used by the plaintiffs. It is also alleged that the parents who may be advised by the Doctors to purchase Glucose for the use of the sick children in the hospital are likely to be misled by the offending carton used by the defendant.


6. In the counter affidavit filed by the defendant in the affidavit in support of the Application No. 5022A of 1984, the following contentions are made :


The plaintiffs are not entitled to the absolute monopoly in the matter of marketing of the dietory product viz., Glucose, and even if there is a registration such a registration is invalid. It is also contended that this Court has no jurisdiction to entertain the suit itself.


7. The points for consideration that arise in these applications are as follows :


(1) Whether the plaintiffs has made out a prima facie case to justify the grant of an interim injunction?


(2) Whether the balance of convenience justifies the granting of an interim injunction ?


(3) Whether there is any irreparable injury to the plaintiffs so as to justify the grant of an interim injunction ?


8. The first contention of the plaintiffs is that the carton, the photostat copy of which is marked as Exs. P-7 & P-8 in which the plaintiff's product of Glucose is marketed, had been registered under the Copyrights Act as per Exs. P-7 and P-8. Several designs of the carton are registered as trade mark as per Exs. P-3, P-4, P-5, P-9 and P-10. Individually, parts of the components of the trade mark had earlier separately registered, except the representation of the family drinking, under the Trade and Merchandise Marks Act, 1958


(1) The background colour of both the carton is green and in same shade of green colour.


(2) The inverted triangle of the plaintiffs' cartons is reproduced in the carton used by the defendant also.


(3) The names are printed in similar fashion in both the cartons.


(4) The representation of a family drinking is found in both the cartons.


9. From the above common features, the plaintiffs have prima facie established that an unwary purchaser is likely to be misled by the offending carton used by the defendant. On behalf of the defendant, it is contended that the name used viz., Glucose, indicate only the nature of the goods sold and that there cannot be any particular proprietorship with reference to that name. The Plaintiffs have not claimed any proprietorship in respect of the word Glucose. But the complaint is that the defendant copied the exact lay out and essential features in the carton. Under the Circumstances, there is no difficulty is coming to the conclusion that the plaintiffs have made out a prima facie case with reference to the common features in both the cartons to justify the grant of an interim injunction.


10. The next question to be decided is whether the balance of convenience justifies the granting of an interim injunction. It is contended on behalf of the defendant that the turnover of the defendant is only a small amount compared to the huge turnover of the plaintiffs and the small turnover of the defendant is not going to affect the plaintiffs business and hence in this view the balance of convenience is against the granting of an injunction. As already observed, the carton used by the defendant has several similar features and the continuous use of such a carton may cause irreparable loss to the plaintiffs which cannot be reasonably measured. Under the circumstances, the balance of convenience is clearly in favour of the granting of an interim injunction. Otherwise the plaintiffs will be put to irreparable loss.


11. Another contention raised on behalf of the defendant is that the second plaintiff who is a representative in

interest in India of the first plaintiff, is not entitled to ask for an injunction in respect of a trade mark registered in the name of the first plaintiff. The second plaintiff has been registered as a registered user under Section 48 of the Trade and Merchandise Marks Act, 1958, and as such the second plaintiff is entitled to use the same trade mark as per section 49 of the said Act. Hence this contention of the defendant/respondent is also will have to be negatived. 12. Considering the entire circumstances, this is a fit case where the interim injunction already granted will have to be made absolute. Interim injunction is made absolute. There will be no order as to costs.