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2013 DIGILAW 386 (AP)

Seela Rani v. Mimidi Suresh

2013-06-04

L.NARASIMHA REDDY, S.V.BHATT

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JUDGMENT : L.Narasimha Reddy, J. Defendants in O.S.No.222 of 2011, on the file of the V-Additional District Judge, Nellore, are the appellants. The respondent filed the suit for perpetual injunction restraining the appellants herein from manufacturing or marketing the product ‘snuff’ with the name and description ‘Sri Devika’ brand. The respondent pleaded that he has been manufacturing the snuff with the trademark ‘Sridevi’, both with name and pictorial description from 1992 onwards and that the 2nd appellant, who is his brother, worked as salesman under him from 1996 to 2009. He pleaded that the 2nd appellant left the job and together with his wife, the 1st appellant, started manufacturing the snuff with the deceptive description of ‘Sri Devika’ from April, 2011 onwards. The respondent pleaded that the description and pictorial trade mark of the product manufactured by the 2nd appellant are very deceptive and amounts to passing off the goods which are manufactured by the respondent with the trade mark ‘Sridevi’. The respondent has also filed I.A.No.376 of 2011 under Order XXXIX Rules 1 and 2 CPC for temporary injunction. The averments in the plaint have almost been repeated in the affidavit filed in support of the IA. The appellants opposed the application by filing counter. According to them, the snuff with the trade mark ‘Sridevi’ was being manufactured by the joint family and after the 2nd appellant got separated, he too started manufacturing the snuff but with a different description and trade mark. They pleaded that there is no comparison between the names ‘Sridevi’ and ‘Sri Devika’ and even the picture is substantially different. Through its order dated 04.07.2012, the trial Court allowed the IA. Hence, this appeal. Sri Jithender Rao Veeramalla, learned counsel for the appellants, submits that this is not a case where the respondent has invented any special product or that the name or the picture has any special significance for him. He contends that the respondent does not have any monopoly to manufacture snuff and the name and trade mark chosen by the appellants is in no way similar to that of the respondent. He contends that the respondent does not have any monopoly to manufacture snuff and the name and trade mark chosen by the appellants is in no way similar to that of the respondent. He submits that whatever may have been the circumstances under which the trial Court granted an order of temporary injunction, there is a substantial change of events in the recent past, viz., that the respondent got registered a trade mark which is substantially different, both in text and appearance and that the order of temporary injunction cannot be sustained in law. Sri P.S.P.Suresh Kumar, learned counsel for the respondent, on the other hand, submits that the trial Court has recorded a finding as to the similarity of both the products after undertaking a detailed examination and comparison and that no interference is warranted. He submits that not only the name but also the trade made are devised in such a manner that a gullible customer would take the product of the appellants, as the one manufactured by the respondent. He has relied upon the judgments of the Supreme Court in CORN PRODUCTS REFINING CO., v. SHANGRILA FOOD PRODUCTS LTD., ( AIR 1960 SC 142 ),CADILA HEALTH CARE LTD., v. CADILA PHARMACEUTICALS LTD., (2001) 5 SCC 73 ), HEINZ ITALIA AND ANOTHER v. DABUR INDIA LTD., (2007) 6 SCC 1 ) and that of this Court in ASHWINI CHEMICAL WORKS THROUGH ITS PROP. T.BALA MAHESH, HYDERABAD v. ASWINI HOMEO PHARMACY AND ANOTHER ( 2010(1) ALT 754 ). The suit filed by the respondent is for protection of his trade mark. I.A.No.376 of 2011 was filed under Order XXXIX Rules 1 and 2 CPC for temporary injunction. The product involved is snuff i.e., tobacco powder. It is important to take note of the fact that the 2nd appellant and the respondent are brothers and both of them were associated with manufacture of snuff for quite a long time, in their joint family. Neither oral nor any documentary evidence was taken on record. The trial Court allowed the IA. The appellants on the one hand and the respondent on the other are manufacturing the same product i.e., snuff and have adopted different trade marks as well as nomenclature. None of them got their trade mark registered by the time the IA was disposed of. The plea mostly was the one of passing off. The trial Court allowed the IA. The appellants on the one hand and the respondent on the other are manufacturing the same product i.e., snuff and have adopted different trade marks as well as nomenclature. None of them got their trade mark registered by the time the IA was disposed of. The plea mostly was the one of passing off. In the field of trade marks, it is difficult to spell out any hard and fast rule, much would depend upon the nature of product, the description given to it, the alleged attempt by others to imitate the same, the nature of customers of the product, etc. In case the plaintiff, in a suit of this nature, has made an endeavour and invented a product, the scrutiny will be very stringent and the Courts would be too willing to protect his interest, if anyone makes an attempt to sell the product with the same name and thereby denying the inventor of the benefit of his effort and research. Another important aspect is the category of the customers of the product. In case the customers are mostly illiterate and are not capable of noticing the distinction between the names or pictures, which may appear to be similar, the Courts would be inclined to interfere. On the other hand, if the customers are in a way gullible and they do not have the capacity in noting the minute distinguishing features, the Courts may be ready to come to the rescue of the plaintiff. Two aspects are involved in the instant case. The first is about the nomenclature given to the product by the appellants and the second is the pictorial trade mark. The respondent is trading his product with the name ‘Sridevi’ and a picture thereon. The nomenclature adopted by the appellants for their product is ‘Sri Devika’. They too print a picture. In case the manufacturer of a product coins a typical name and sells it with that name, any attempt made by others can easily be faulted. If, on the other hand, the name adopted by the manufacturer is a common one, already in existence, the indiscriminate grant of injunction is prone to create a monopoly in his favour. We are of the clear view that a person who identifies the product by name ‘Sridevi’ would not find it difficult to discern the distinction between ‘Sridevi’ and ‘Sri Devika’. We are of the clear view that a person who identifies the product by name ‘Sridevi’ would not find it difficult to discern the distinction between ‘Sridevi’ and ‘Sri Devika’. Both are distinct names and hardly there is any similarity, except for the starting letter ‘Sri’. That, however, has no bearing upon the product or its description. Coming to the pictorial trade marks under which the respondent on the one hand and the appellants on the other are selling the product, it is evident that the picture of lady sitting on a lotus is facing towards right side in the trade mark of the product of the respondent, whereas it is exactly in the opposite side, in the case of trade mark of the product of the appellants. Further, the trade marks contain the names also. The name adopted by the appellants is longer in form and connotes a different meaning compared to the one adopted by the respondent. In our view, these aspects would certainly militate against the respondent and the order of temporary injunction ought not to have been granted. We are conscious of the principles enunciated in the judgments relied by the learned counsel for the respondent. In a way, the observation made by the Supreme Court in CORN PRODUCTS REFINING CO.,’scase (1 supra) clinches the case of the appellants. Their Lordships expressed the view that if the name of a product is in English and the customers are those who know that language, the phonetic similarity can be a factor to grant injunction in favour of the plaintiff. In the instant case, the name is not an English one and it is written in Telugu by both the parties. When the customers are the persons who know Telugu, there is no likelihood of their mistaking one product, for the other. Whatever may have been the circumstances under which the trial Court granted temporary injunction on the basis of the facts before it, an important development has taken place after the disposal of the I.A which, in fact, makes the order of temporary injunction to almost nugatory. The respondent got the trade mark registered. It is totally different from the one which was placed before the trail Court when the I.A was decided. For instance, the name in the trade mark is now in English whereas it was in Telugu earlier. The respondent got the trade mark registered. It is totally different from the one which was placed before the trail Court when the I.A was decided. For instance, the name in the trade mark is now in English whereas it was in Telugu earlier. The picture of the trade mark is also substantially different. At any rate, snuff is not a product which can be said to have been manufactured by any special effort or research made by the respondent. It was not even pleaded that the product is manufactured with any special formula invented by the respondent. Both the parties were involved in the same activity, when their family was joint. For the foregoing reasons, the appeal is allowed and the order under appeal is set aside. The miscellaneous petitions filed in this appeal shall also stand disposed of. There shall be no order as to costs.