Judgment :- A. RAMAMURTHI, J. 1. These applications are filed by the applicants under Order XIV Rule 8 of Original Side Rules read with Order XXXIX Rules 1 and 2 of Civil Procedure Code, to grant interim injunction restraining the respondents and their men from in any manner passing off or enabling others to pass off the respondents' greases and other products as and for the applicants' greases and other goods by use of the NOBLE containers having a colour scheme of red, green and white or any container which is similar to applicants' CASTROL containers and also interim injunction restraining the respondents and their men from in any manner infringing the applicants' copyright in the artistic work CASTROL containers with colour scheme of red, green and white by use of NOBLE containers having an identical colour scheme. 2. The case in brief for disposal of these applications is as follows : The first applicant is carrying on business of manufacturing and marketing of high grade lubricating oil products, anti-freezing compounds, hydraulic fluids, brake fluids, de-watering fluids etc., in United Kingdom and several other countries all over the world including India. The first applicant, who commenced its business activity in India in 1919 in a different name, which was changed into CASTROL LIMITED in 1960. It operated with its head office at Bombay and four regional offices in Bombay, Calcutta, Delhi and Chennai. The second applicant was established on 31.5.1979 with an object of processing and marketing high grade automotive and industrial lubricants and other speciality products. The 2nd applicant has established factories with modern machineries to manufacture various lubricants and oils conforming to the International Standard prescribed by the 1st applicant. The 2nd applicant and its predecessors-in-title have been carrying on business on a wide and extensive scale all over India. The first applicant is the registered proprietor in India of several trade marks especially trade mark CASTROL and a series of marks having CASTROL as the prefix. The trade mark CASTROL registered under No. 1494 in Class 4 as of 29th June, 1942. All the registrations are Part 'A' registrations, more than 7 years old. 3. The first applicant entered into a Registered User Agreement dated 26.8.1985 with Indrol Lubricants and Specialities Limited in respect of registration No. 309996 and 38 others. Indrol Lubricants and Specialities Limited have merged with the 2nd applicant. All the registrations are Part 'A' registrations, more than 7 years old. 3. The first applicant entered into a Registered User Agreement dated 26.8.1985 with Indrol Lubricants and Specialities Limited in respect of registration No. 309996 and 38 others. Indrol Lubricants and Specialities Limited have merged with the 2nd applicant. The scheme of amalgamation has been approved by Bombay High Court. The 2nd applicant has been recorded as registered user of the said trade mark upto 5.8.1995 and the variation application for recordal of the registered user for a period of 7 years upto 5.8.2002 has been filed and is pending with the Registrar of Trade Mark, Bombay. The 2nd applicant has been recorded as registered user of the registration till 16.11.2000 by virtue of the user agreement dated 26.8.1985. 4. The applicants are selling automobile oils and lubricants in containers/cartons having distinctive colour scheme, get up and lay out. They have the distinctive features of colour combination of red, green and white and Castrol Logo in a green roundel with a white strip having the word CASTROL in stylised script in red, the whole Logo enshrined in a white square and distinctive get up and lay out. The first applicant is the proprietor of the artistic work Castrol Logo with distinctive colour scheme and get up. The first applicant is also the proprietor of package with distinctive colour scheme and get up. Under Section 40 of the Copyright Act, the first applicant's artistic work with distinctive colour scheme, get up and lay out have automatic protection in India. In any event, the artistic work has been continuously published in India since 1968 till date. 5. The total turnover of the business carried on by the 1st applicant in United Kingdom and other countries excluding the 2nd applicant is given separately. Similarly, the approximate annual turnover of goods sold by the 1st applicant under the trade mark Castrol in United Kingdom and the world over for the years 1983 to 1996 are also furnished. The annual turnover of the goods sold in India with the trade marks and artistic works are also given for the period from June, 1983 to December, 1997. They have been advertising extensively through various printed media including newspapers, magazines and trade journals. The expenditure incurred on advertisement and publicity in India are also furnished separately. The annual turnover of the goods sold in India with the trade marks and artistic works are also given for the period from June, 1983 to December, 1997. They have been advertising extensively through various printed media including newspapers, magazines and trade journals. The expenditure incurred on advertisement and publicity in India are also furnished separately. By virtue of long, extensive and continuous use of the trade mark Castrol, the mark is exclusively identified by the trade and public. It enjoys great reputation and goodwill all over India. Recently, the applicants became aware of the respondents selling all purpose grease and other greases used for automobiles in containers having a colour scheme, red, green and white almost identical to the applicants' Castrol containers. They are using the trade mark NOBLE. The colour scheme, get up and lay out of the Noble containers are almost identical to the applicants' containers. The style of lettering, the size of each colour strip, manner of printing in the respondents' containers are a slavish imitation of the applicants' containers. They have copied every feature of the applicants' containers. They are selling sub-standard inferior quality greases in containers which are an imitation of the applicants' containers. The respondents have resorted to clandestine methods with a view to create an impression in the minds of the trade and public and their products also emanate from the applicants. An ordinary purchaser with imperfect memory would not be able to make out any difference between the two containers. Both of them are selling identical products. Greases used for automobiles and other purposes are purchased by all classes of customers. The main customers are motor mechanics, their urchin helpers and service station operators. They mostly identify the applicants' greases by the colour scheme, get up and lay out. The applicants became aware of this in July, 1998. The respondents are also passing off and enabling others to pass off their product as that of the applicants' product. The applicants have made out a prima facie case and the balance of convenience is in their favour. Hence, these applications. 6. The respondents filed a common counter affidavit, denying the various allegations. The applicants company has registered various trade marks. The respondents have not utilised or used or copied their logo Castrol or marketing their products in tins. The applicants have made out a prima facie case and the balance of convenience is in their favour. Hence, these applications. 6. The respondents filed a common counter affidavit, denying the various allegations. The applicants company has registered various trade marks. The respondents have not utilised or used or copied their logo Castrol or marketing their products in tins. The colour green, white and red as claimed by the applicants has been widely used by automobile marketing people. The automobile consumers are buying the products such as greases, brake oil by mentioning the name of the reputed companies and they are not carried away with the colour scheme. The logo and design used by the respondents are not identical to that of the applicants. For the applicants' tin, there is a black strip at the edge of tin sheet whereas such black strip is not there. The respondents use the name NOBLE which is distinctively different from CASTROL. The applicants are carrying on business for more than several decades. The respondents started marketing from April, 1996. The turnover for 1996-97 is about Rs. 1.90 lakhs and for 1997-98 the turnover is around Rs. 8 lakhs. The respondents are not selling sub-standard inferior quality greases in containers. They are not imitating either in colour scheme, get up and lay out. The applicants have not make out a prima facie case. As there is no confusion between the products of the two, the applicants would not suffer any loss or damage. The balance of convenience is only in favour of the respondents. The respondents' products are distinctively different from the applicants in size of the container and they have a distinctive trade mark and the size of the strips used for each colour also differs. The respondents have not infringed the copyright of the applicants. Hence, the applications are liable to be dismissed. 7. Heard the learned counsel of both sides. 8. The point that arises for consideration is whether the applications have got a prima facie case and the balance of convenience is in their favour ? 9. Point : The first applicant had entered into Registered User Agreement dated 26.8.1985 with Indrol Lubricants and Specialities Limited and this company has merged with the 2nd applicant. The applicants are selling automobile oils and lubricants in containers/cartons, having a distinctive colour scheme, get up and lay out. 9. Point : The first applicant had entered into Registered User Agreement dated 26.8.1985 with Indrol Lubricants and Specialities Limited and this company has merged with the 2nd applicant. The applicants are selling automobile oils and lubricants in containers/cartons, having a distinctive colour scheme, get up and lay out. Learned senior counsel for the applicants stated that the respondents are also selling their products used for automobiles in containers having a colour scheme red, green and white almost identical to the applicants' Castrol containers. No doubt, the trade mark alone is different; but the colour scheme and get up are almost identical to their containers. Moreover, the style of lettering, the size of each colour strip, and manner of printing are identical and the respondents have copied every feature of the applicants' containers. In short, it is stated that they have made a substantial reproduction of the applicants' copyright in Castrol containers and the ordinary purchaser with imperfect memory may not be able to identify to make out any difference between the two containers. Since the products are used by motor mechanics and service station operators, they would identify mostly by the colour scheme and get up and as a result of which, there is every possibility that the goods of the respondents may be passed off as that of the goods of the applicants and the applicants have suffered irreparable loss and damage to the reputation and goodwill. 10. Per contra, learned counsel for the respondents contended that they are doing business under a separate trade name called NOBLE and there is no similarity in the colour scheme and get up and they are not identical. Learned counsel further stated that the customers used to purchase the product only by mentioning the name and they would not be carried away by the colour scheme. The respondents also filed an additional affidavit stating that from January, 1998, they have not placed impugned tins either for 1/2 kg. or 1 kg. in the market. After June, 1998 upto August, 1999, they have completely changed the colour scheme and also get up. They have also produced the plastic containers to show that they are not identical and distinct from the containers of the applicants. or 1 kg. in the market. After June, 1998 upto August, 1999, they have completely changed the colour scheme and also get up. They have also produced the plastic containers to show that they are not identical and distinct from the containers of the applicants. In view of the objections made by the applicants' company, they have changed the colour scheme and get up prior to the filing of the case and they never imitated at any point of time the logo as well as the colour scheme. It is further stated that all the changes from time to time have been made due to change of demand in the market. This mode is adopted by all the companies. 11. It is pertinent to state that the logo and colour scheme of the two containers are identical in all respects. A cursory look of the containers/cartons of the two companies are almost similar and, as such, there is every possibility for an unwary purchaser to mistake one product as the product of another. No doubt, the respondents have taken a stand that they have completely changed the logo as well as the colour scheme and instead of tins, only plastic containers are used. These plastic containers are also produced before the Court for the purpose of comparison and a look at the same indicates that they are completely different from the containers of the applicants. However, this has been done either immediately prior to the filing of the suit or after filing of the suit. Whatever said and done, the containers produced by the applicants relating to the respondents are identical in colour scheme and get up and, as such, there is prima facie material to come to the conclusion that the respondents have infringed the copyright of the artistic work of the applicants and they have also passed off their goods as that of the applicants. Simply because the logo and the colour scheme have been now changed or modified, it cannot be concluded that the applicants have no prima facie case and the balance of convenience is not in their favour. It is quite probable that the respondents have come forward with a change, only to avoid passing off the goods. Simply because the logo and the colour scheme have been now changed or modified, it cannot be concluded that the applicants have no prima facie case and the balance of convenience is not in their favour. It is quite probable that the respondents have come forward with a change, only to avoid passing off the goods. It is always possible for the party to change the colour scheme and get up for the time being and after disposal of the case, there is every possibility that the same party may use the same colour scheme and get up; By this act, it would only lead to multiplicity of proceedings and, as such, in order to avoid the same, I am of the view that it is just and necessary that an order has to be passed in favour of the applicants. Further more, when the applicants have produced their containers and also the containers of the respondents prior to the filing of the suit, it is crystal clear that they are identical in colour scheme and get up and, hence, I am of the view that the respondents have to be restrained from infringing the same. Hence, this point is answered accordingly. 12. For the reasons stated above, both applications are allowed.