Full Judgment Text
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ FAO(OS)228/2007 & CM Nos.8934-35/2007
# BABU RAM DHARAM PRAKASH …Appellant through
! Mr. Manav Kumar, Adv.
-versus-
$ IZUK CHEMICAL WORKS …Respondent through
^ Mr.S.K. Bansal, Adv.
th
% Date of Decision : 17 September, 2008
CORAM:
* HON‟BLE MR. JUSTICE VIKRAMAJIT SEN
HON‟BLE MR. JUSTICE S.L. BHAYANA
1. Whether reporters of local papers may
be allowed to see the Order? No
2. To be referred to the Reporter or not? Yes
3. Whether the Order should be
reported in the Digest? Yes
VIKRAMAJIT SEN, J. (Oral)
O R D E R
1. This Appeal assails the Order dated 11.5.2007 of the
learned Single Judge granting an ex parte ad interim injunction
to the Plaintiff, as prayed for in the Application under Order
XXXIX Rules 1 and 2 of the Code of Civil Procedure (CPC).
Briefly stated, the Defendants have been restrained from using
the Plaintiff‟s Trademark „Moon Star‟ and/or from using the
device of a star in the lap of the moon or any part thereof or any
of the Defendant‟s products or business.
FAO(OS)228/2007 Page 1 of 6
2. Indeed, the learned Single Judge has passed a very
detailed Order in which various precedents, including Atlas
Cycle Industries Ltd. –vs- Hind Cycles Limited, ILR 1973 1 Delhi
393, Modi Sugar Mills Ltd. –vs- Tata Oil Mills Ltd., AIR 1943
Lahore 196, James Chadwick & Bros. Ltd. –vs- The National
Sewing Thread Co. Ltd., AIR 1951 Bombay 147, Amritdhara
Pharmacy –vs- Satya Deo Gupta, AIR 1963 SC 449, Corn
Products Refining Co. –vs- Shangrila Food Products Ltd., AIR
1960 SC 142, K.R. Chinna Krishna Chettiar –vs- Sri Ambal and
Company, AIR 1970 SC 146 : 1969(2) SCC 131, De Cordova –vs-
Vick Chemical Coy, 68 RPC 103, Devi Pesticides Pvt. Ltd. –vs-
Shiv Agro Chemicals Industries, 2006(32) PTC 434 (Madras)
(DB), Shaw Wallace & Co. Ltd. –vs- Superior Industries Ltd.,
2003(27) PTC 63 (Delhi), Vrajlal Manilal & Co. –vs- M/s. N.S.
Bidi Co., AIR 1987 Delhi 312, William Grant & Sons Ltd. –vs- Mc
Dowell & Co. Ltd., 1997 PTC 17 134, Parle Products P. Ltd. –vs-
J.P. & Co., Mysore, (1972) 3 SCR 289, Glaxo Operations UK Ltd.
–vs- Samrat Pharmaceuticals, AIR 1984 Delhi 265, Metro
Playing Card Co. –vs- Wazir Chand Kapoor, AIR 1972 Delhi 248,
Hitachi Ltd. –vs- Ajay Kumar Agarwal, 1996 PTC (16) DB (Delhi),
Hardie Trading Ltd. –vs- Addisons Paint and Chemicals Ltd.,
2003 (11) SCC 92 and State of Mizoram –vs- Biakchhawna, 1999
(1) SCC 156 have been discussed. The extract from James
FAO(OS)228/2007 Page 2 of 6
Chadwick enunciates that the “real question is as to how a
purchaser who must be looked upon as an average man of
ordinary intelligence, would react to a particular trademark,
what association he would form by looking at the trademark,
and in what respect he would connect the trademark with the
goods which he would be purchasing.”
3. The learned Single Judge has concluded that the
Defendant has fraudulently copied an essential part of the
trademark of the Plaintiff in using “star as well as the device of
a star” as part of its trademark. It has been noted that the
Plaintiff has proprietary rights over the same by user of the
trademark since 1917 and registration of its trademark since
1943. The learned Single Judge has also highlighted that the
legal rights of the Plaintiff are based on its registered trademark
and, therefore, is entitled statutorily to protection.
4. As has been mentioned above, the Appeal is against an
interlocutory Order granting the Prayers contained in an
Application under Order XXXIX Rules 1 and 2 of the CPC. The
approach which must be adhered to by the Appellate Court in
such matters is perspicuously enunciated in the decision of the
Supreme Court in Ramdev Food Products Pvt. Ltd. –vs-
FAO(OS)228/2007 Page 3 of 6
Arvindbhai Rambhai Patel, AIR 2006 SC 3304, paragraphs 128
and 129 of which are topical:-
128. The grant of an interlocutory injunction is in
exercise of discretionary power and hence, the
appellate courts will usually not interfere with it.
However, appellate courts will substitute their
discretion if they find that discretion has been
exercised arbitrarily, capriciously, perversely, or
where the court has ignored settled principles of law
regulating the grant or refusal of interlocutory
injunctions. This principle has been stated by this
court time and time again. (See for example Wander
Ltd. V. Antox India P. Ltd., (1990) Supp SCC 727,
Lakshmikant V. Patel v. Chetanbhai Shah, (2002) 3
SCC 65 and Seema Arshad Zaheer v. MC of Greater
Mumbai, (2006) 5 SCALE 263).
129. The appellate court may not reassess the material
and seek to reach a conclusion different from the one
reached by the court below if the one reached by that
court was reasonably possible on the material. The
appellate court would normally not be justified in
interfering with the exercise of discretion under
appeal solely on the ground that it had considered the
matter at the trial stage it would have come to a
contrary conclusion.
5. Learned counsel for the Appellant had laid great emphasis
on the fact that even prior to the grant of the injunction the
submission of learned counsel for the Plaintiff had been noted to
the effect that the complaint of the Plaintiff against the label
FAO(OS)228/2007 Page 4 of 6
and packaging of the Defendant does not survive. That,
however, was in respect of the use of the alphabet „R‟ in a circle
® which is impermissible by the statute. It had to be removed
even without the Plaintiff‟s objection. The challenge and
complaint to the plagiarisation of the Plaintiff‟s trademark
„Moon Star‟ by the Defendant‟s adoption of the trademark
„Super Star‟ together with a star along with the alphabet
remained alive.
6. We are of the view that the Plaintiff had made out a prima
facie case for the grant of an injunction against the Defendant
for the use of the trademark „Super Star‟. It has been
contended that the word „star‟ has been freely used in the
market. The precise inquiry would have to be whether the use
of the word „star‟ has been adopted in respect of the products
manufactured and marketed by the Plaintiff, that is, Hair Dye. It
is of no relevance or advantage to the Defendant that the
product in question is Herbal Heena. This product is widely
used as a Hair Dye, although it may also have ameliorative
effect on hair. The use of the pictorial device of a „star‟
compounds and demonstrates the intention of the Defendant to
deceive a customer into buying its product, believing it to be
that of the Plaintiff. The views and findings expressed by us
herein should not affect or influence the passing of the final
FAO(OS)228/2007 Page 5 of 6
judgment of the case. However, based on Ramdev, even if we
were of a different opinion, we would be loath to interfere in
this Appeal since the view taken by the learned Single Judge is a
plausible one and is not perverse or illegal.
7. Appeal as well as pending applications stand dismissed.
Parties to bear their respective costs.
VIKRAMAJIT SEN, J.
S.L.BHAYANA, J.
SEPTEMBER 17, 2008
tp
FAO(OS)228/2007 Page 6 of 6
+ FAO(OS)228/2007 & CM Nos.8934-35/2007
# BABU RAM DHARAM PRAKASH …Appellant through
! Mr. Manav Kumar, Adv.
-versus-
$ IZUK CHEMICAL WORKS …Respondent through
^ Mr.S.K. Bansal, Adv.
th
% Date of Decision : 17 September, 2008
CORAM:
* HON‟BLE MR. JUSTICE VIKRAMAJIT SEN
HON‟BLE MR. JUSTICE S.L. BHAYANA
1. Whether reporters of local papers may
be allowed to see the Order? No
2. To be referred to the Reporter or not? Yes
3. Whether the Order should be
reported in the Digest? Yes
VIKRAMAJIT SEN, J. (Oral)
O R D E R
1. This Appeal assails the Order dated 11.5.2007 of the
learned Single Judge granting an ex parte ad interim injunction
to the Plaintiff, as prayed for in the Application under Order
XXXIX Rules 1 and 2 of the Code of Civil Procedure (CPC).
Briefly stated, the Defendants have been restrained from using
the Plaintiff‟s Trademark „Moon Star‟ and/or from using the
device of a star in the lap of the moon or any part thereof or any
of the Defendant‟s products or business.
FAO(OS)228/2007 Page 1 of 6
2. Indeed, the learned Single Judge has passed a very
detailed Order in which various precedents, including Atlas
Cycle Industries Ltd. –vs- Hind Cycles Limited, ILR 1973 1 Delhi
393, Modi Sugar Mills Ltd. –vs- Tata Oil Mills Ltd., AIR 1943
Lahore 196, James Chadwick & Bros. Ltd. –vs- The National
Sewing Thread Co. Ltd., AIR 1951 Bombay 147, Amritdhara
Pharmacy –vs- Satya Deo Gupta, AIR 1963 SC 449, Corn
Products Refining Co. –vs- Shangrila Food Products Ltd., AIR
1960 SC 142, K.R. Chinna Krishna Chettiar –vs- Sri Ambal and
Company, AIR 1970 SC 146 : 1969(2) SCC 131, De Cordova –vs-
Vick Chemical Coy, 68 RPC 103, Devi Pesticides Pvt. Ltd. –vs-
Shiv Agro Chemicals Industries, 2006(32) PTC 434 (Madras)
(DB), Shaw Wallace & Co. Ltd. –vs- Superior Industries Ltd.,
2003(27) PTC 63 (Delhi), Vrajlal Manilal & Co. –vs- M/s. N.S.
Bidi Co., AIR 1987 Delhi 312, William Grant & Sons Ltd. –vs- Mc
Dowell & Co. Ltd., 1997 PTC 17 134, Parle Products P. Ltd. –vs-
J.P. & Co., Mysore, (1972) 3 SCR 289, Glaxo Operations UK Ltd.
–vs- Samrat Pharmaceuticals, AIR 1984 Delhi 265, Metro
Playing Card Co. –vs- Wazir Chand Kapoor, AIR 1972 Delhi 248,
Hitachi Ltd. –vs- Ajay Kumar Agarwal, 1996 PTC (16) DB (Delhi),
Hardie Trading Ltd. –vs- Addisons Paint and Chemicals Ltd.,
2003 (11) SCC 92 and State of Mizoram –vs- Biakchhawna, 1999
(1) SCC 156 have been discussed. The extract from James
FAO(OS)228/2007 Page 2 of 6
Chadwick enunciates that the “real question is as to how a
purchaser who must be looked upon as an average man of
ordinary intelligence, would react to a particular trademark,
what association he would form by looking at the trademark,
and in what respect he would connect the trademark with the
goods which he would be purchasing.”
3. The learned Single Judge has concluded that the
Defendant has fraudulently copied an essential part of the
trademark of the Plaintiff in using “star as well as the device of
a star” as part of its trademark. It has been noted that the
Plaintiff has proprietary rights over the same by user of the
trademark since 1917 and registration of its trademark since
1943. The learned Single Judge has also highlighted that the
legal rights of the Plaintiff are based on its registered trademark
and, therefore, is entitled statutorily to protection.
4. As has been mentioned above, the Appeal is against an
interlocutory Order granting the Prayers contained in an
Application under Order XXXIX Rules 1 and 2 of the CPC. The
approach which must be adhered to by the Appellate Court in
such matters is perspicuously enunciated in the decision of the
Supreme Court in Ramdev Food Products Pvt. Ltd. –vs-
FAO(OS)228/2007 Page 3 of 6
Arvindbhai Rambhai Patel, AIR 2006 SC 3304, paragraphs 128
and 129 of which are topical:-
128. The grant of an interlocutory injunction is in
exercise of discretionary power and hence, the
appellate courts will usually not interfere with it.
However, appellate courts will substitute their
discretion if they find that discretion has been
exercised arbitrarily, capriciously, perversely, or
where the court has ignored settled principles of law
regulating the grant or refusal of interlocutory
injunctions. This principle has been stated by this
court time and time again. (See for example Wander
Ltd. V. Antox India P. Ltd., (1990) Supp SCC 727,
Lakshmikant V. Patel v. Chetanbhai Shah, (2002) 3
SCC 65 and Seema Arshad Zaheer v. MC of Greater
Mumbai, (2006) 5 SCALE 263).
129. The appellate court may not reassess the material
and seek to reach a conclusion different from the one
reached by the court below if the one reached by that
court was reasonably possible on the material. The
appellate court would normally not be justified in
interfering with the exercise of discretion under
appeal solely on the ground that it had considered the
matter at the trial stage it would have come to a
contrary conclusion.
5. Learned counsel for the Appellant had laid great emphasis
on the fact that even prior to the grant of the injunction the
submission of learned counsel for the Plaintiff had been noted to
the effect that the complaint of the Plaintiff against the label
FAO(OS)228/2007 Page 4 of 6
and packaging of the Defendant does not survive. That,
however, was in respect of the use of the alphabet „R‟ in a circle
® which is impermissible by the statute. It had to be removed
even without the Plaintiff‟s objection. The challenge and
complaint to the plagiarisation of the Plaintiff‟s trademark
„Moon Star‟ by the Defendant‟s adoption of the trademark
„Super Star‟ together with a star along with the alphabet
remained alive.
6. We are of the view that the Plaintiff had made out a prima
facie case for the grant of an injunction against the Defendant
for the use of the trademark „Super Star‟. It has been
contended that the word „star‟ has been freely used in the
market. The precise inquiry would have to be whether the use
of the word „star‟ has been adopted in respect of the products
manufactured and marketed by the Plaintiff, that is, Hair Dye. It
is of no relevance or advantage to the Defendant that the
product in question is Herbal Heena. This product is widely
used as a Hair Dye, although it may also have ameliorative
effect on hair. The use of the pictorial device of a „star‟
compounds and demonstrates the intention of the Defendant to
deceive a customer into buying its product, believing it to be
that of the Plaintiff. The views and findings expressed by us
herein should not affect or influence the passing of the final
FAO(OS)228/2007 Page 5 of 6
judgment of the case. However, based on Ramdev, even if we
were of a different opinion, we would be loath to interfere in
this Appeal since the view taken by the learned Single Judge is a
plausible one and is not perverse or illegal.
7. Appeal as well as pending applications stand dismissed.
Parties to bear their respective costs.
VIKRAMAJIT SEN, J.
S.L.BHAYANA, J.
SEPTEMBER 17, 2008
tp
FAO(OS)228/2007 Page 6 of 6