JUDGMENT Anil Kumar J.
Page 1796
1. These appeals involve common disputes, are disposed of by this common order are against the orders of the Learned Single Judge dismissing appellants interim injunction applications in different suits against the respondents seeking restrain against them from infringing or pirating the copyright of the appellant in the drawing and moulds for Dr. Best toothbrush and/or the moulds for Flex N Direct toothbrush and restrain against the respondents from selling toothbrush which are identical in appearance to CEELO FLEXY or any other tooth brush confusingly similar in appearance to the appellant's Dr. Best, Aquafresh Flex and/or Aquafresh Flex `N' Direct.
2. Appellants/Plaintiffs had filed four suits for permanent injunction of infringement of copyright, passing off, delivery up and rendition of accounts along with interim injunction applications being IA.11441/98 and 53/99 in suit No. 2771/1998 titled SmithKline Beecham Consumer Healthcare Gmbh and Ors. v. Mr. G.D. Rathor and Ors. IA.10069/98 and 459/99 in suit No. 2462/1998 titled SmithKline Beecham Consumer Healthcare Gmbh and Ors v. Mr. Mr. Sumit Nanda and Ors., IA.279/98 in suit No. 58/19998 titled SmithKline Beecham Consumer Healthcare Gmbh and Ors v. Mr. Basant Kumar Chawla and Ors and in suit No. 2520/1998 titled SmithKline Beecham Consumer Healthcare Gmbh and Ors. v. Mr. Anoo Jain and Ors. The interim applications in these suits were dismissed by order dated 16th January 2002 and ex-parte ad-interim order dated 18th November, 1998 was vacated. The main order was passed in suit No. 2771 of 1998 dated 16th January, 2002 on which the reliance was placed while dismissing the applications in other suits.
3. Appellants in their plaints claimed to be owners of copyrights in precision moulds used for manufacturing toothbrushes under the name 'Dr. Best', 'Aquafresh Flex' and 'Aquafresh Flex `N' Direct'. Appellants sought injunction restraining defendants from manufacturing selling etc. toothbrushes under the name 'Cello Flexy' on the grounds of substantial similarity in dimension of tooth brush and use of word 'Flexy' by the respondents to that of appellants' 'Flex'. Appellants claimed that the respondents are producing substantially similar toothbrushes and their Page 1797 packages carry similar descriptive matter. The appellant No. 3 was carrying on its operations in India through appellant No. 2 who was one of the world's largest and fastest growing companies in areas of prescription and medicines.
4. The respondents per contra contended that the suits were barred under VII Rule 11 of Code of Civil Procedure as the plaints did not disclose any cause of action; design of toothbrush including 'S' bend flexible neck was within public domain; design of the toothbrush was subject matter of Design Registration No. 166434 and 167936 under Design Act, 1911 which designs have since been cancelled and surrendered by the Appellants and so no rights subsists in designs; no copyrights subsists on account of bar under section 15 and (2) of the Copyright Act and the appellants in absence of assignment deeds are not the owners of the works; moulds were never published and therefore copying does not arise; respondent's toothbrush design forms subject matter of registered design no. 177074 under Design Act and is entitled for statutory protection; S shaped neck is utilitarian and functional and not aesthetic ; the said S shaped neck is incapable of distinguishing goods of the plaintiff from those of defendants and others; appellants have misled the Court and misstated facts and concealed material particulars in concealing their litigation with Hindustan Lever Limited and Kewal Raj and Co over the same design of toothbrushes in which injunction was denied to them; their own registration was cancelled/surrendered; Cello Flexy has an annual turnover of approximately Rs. 180 crores; design of respondent's toothbrush was conceived by respondents themselves in 1997 from a catalogue of brushes shown by a Taiwanese mould manufacturing Company called 'Ming Chung Brush Industrial Co.'; respondents are manufacturing these brushes since July,1998 and since the appellants failed to disclose all material facts and concealed material particulars, they are not entitled for any equitable relief.
5. Replying to pleas and contentions raised in the written statements and replies to injunction applications, the appellants contended that the suit filed against Hindustan Lever Limited and Kewal Raj and Co has no bearing in the present suits as the earlier suits concerned passing off and infringement of registered design, whereas present suit is in respect of copyright in injection moulds and drawings and despite copyright in design having been lost, copyright in mould would subsist.
6. The learned Single Judge heard the matter at length and has passed a detailed order running into thirty six pages. While dismissing the applications of the appellants in different suits, the learned Single Judge observed and relied on that once the appellants are seeking relief of an injunction, they were required to disclose not only pendency of earlier suits in which injunction was sought and rejected but also about the suit for cancellation of Kewal Raj and Co's design which was also dismissed; non disclosure of fact that certain parties were manufacturing toothbrushes since 1991 when the design was registered in their name; if the information having bearing on exercise of discretion is withheld, court is justified in Page 1798 refusing to exercise discretion if all the facts would have been disclosed, may be Court would not have granted ex-parte injunction; on suppression of facts and misleading the Court and not coming to the Court with clean hands, ex-parte interim injunction is liable to be vacated. Referring to the observations of Learned Single Judge in Kewal Raj and Co and Hindustan Lever Limited, it was held that though those cases were of design whereas the present cases are of copyright, yet observations of those cases are also fully applicable. From the perusal of entire order of the Learned Single Judge it appears that he was of the view that if the copyright does not exist in the final product, the copyright in the moulds would not be there as the final products is made from the moulds and he relied on the observations made in the other cases.
7. The learned Single Judge had held that prima facie it does not appear to be correct that the mould from which the defendants are manufacturing toothbrushes were made with reverse engineering from the brushes of the plaintiffs. According to him the shape of brush and its moulds were chosen by the respondents from a catalogue shown to them by Taiwanese mould maker and S shapes feature is only functional and the same is not capable of any protection and no passing off action lies.
8. Appellants have now impugned the order of the Learned Single Judge on the grounds that it did not consider or adjudicated upon the issue of copyright of the appellant in the moulds and mould drawings; non disclosure of pendency of an earlier suit no. 2525/96 and design rectification proceedings before Calcutta High Court was not material and relevant as they involved an entirely different subject matter (Pepsodent Popular and Ozette toothbrushes). The earlier suit against Hindustan Lever Limited and Kawal Raj and Company involved infringement of design rights in toothbrush whereas the present suits do not relate to any design rights in the toothbrush and the appellant has not relied upon any registered design. According to appellant, toothbrushes and molds are two separate objects and they have copyright in the moulds and learned Single Judge failed to appreciate the tell-tale signs of copying and overlooked some of the most relevant facts and dates. Appellants contended that when the selection was made by the respondent from the catalogue of the Taiwanese mould maker, they had already test marketed their products which were available in a large number of countries around the world. Prima facie opinion that S-shape feature was only functional and nontaxable of protection was impugned on the ground that it is registered around the world.
9. We have examined the impugned order which runs into 36 pages and considered the submissions of the Ld. counsel for parties. The order is un-disputably a detailed and reasoned one surveying the entire facts and entire legal regime on the issue and also taking care of the principles governing the grant of an interlocutory injunction.
10. Whether or not this order should be disturbed and whether the respondents be restrained from alleged infringing or pirating the alleged copyright of the appellants in injection moulds of the toothbrush which according to the appellants have not even been considered. What is the scope and extent of Page 1799 the power enjoyed by the Appellate Court in interfering with a detailed order which is passed in exercise of discretion by the Learned Trial Judge and to reverse it in the facts and circumstances require consideration.
11. Appellate Court exercises a statutory power which is limited qua an order passed in discretion, is now well settled. If the discretion exercised in passing the order is sound and judicial, according consideration to all available material on record, conforming to the well established principles governing the grant of a temporary injunction and the order does not result in any miscarriage of justice, the Appellate Court would have no scope to exercise its power to reverse the order under appeal even if it has contrary view in the matter. The extent of power of the appellate Court was enumerated by the House of Lords in Evans v. Bartlam, (1937) 2 All E.R.654 which is extracted for reference:
"It is clear that the Court of Appeal should not interfere with the discretion of a judge acting within his jurisdiction unless the court is clearly satisfied that he was wrong. But the court is not entitled simply to say that if the judge had jurisdiction and had all the facts before him, the Court of Appeal cannot review his order unless he is shown to have applied a wrong principle. The court must if necessary examine anew the relevant facts and circumstances in order to exercise a discretion by way of review which may reverse or vary the order. Otherwise in interlocutory matters the judge might be regarded as independent of supervision. Yet an interlocutory order of the judge may often be of decisive importance on the final issue of the case, and one which requires a careful examination by the Court of Appeal. Thus in Gardner v. Jay (5), Bowen, L.J, in discussing the discretion of the judge as regards mode of trial says (p.58): "That discretion, like other judicial discretions, must be exercised according to common sense and according to justice, and if there is a miscarriage in the exercise of it, it will be reviewed."
Lord Atkin crystallised the position by rephrasing it thus:-
"Appellate jurisdiction is always statutory; there is in the statute no restriction upon the jurisdiction of the Court of Appeal; and while the appellate Court in the exercise of its appellate power is no doubt entirely justified in saying that normally it will not interfere with the exercise of the judge's discretion except on grounds of law, yet if it sees that no other grounds the decision will result in injustice being done it has both the power and the duty to remedy it."
12. In another matter Charles Osenton and Co v. Johnston, 1941 (2) Aller 245, which was a case of breach of contract where one of the questions involved was whether an order passed in exercise of discretion could be interfered with in an Appeal. It was held:-
"The law as to the reversal by a Court of Appeal of an order made by the judge below in the exercise of his discretion is well-established, and any difficulty which arises is due only to the application of well-settled principles in an individual case.
The appellate tribunal is not at liberty merely to substitute its own exercise of discretion for the discretion already exercised by the judge. In other Page 1800 words, appellate authorities ought not to reverse the order merely because they would themselves have exercised the original discretion, had it attached to them, in a different way. If, however, the appellate tribunal reaches the clear conclusion that there has been a wrongful exercise of discretion, in that no weight, or no sufficient weight, has been given to relevant consideration such as those urged before us by the appellant, then the reversal of the order on appeal may be justified."
13. The Apex Court also relying on these principles followed them in The Printers Pvt. Ltd. v. Pothan Joseph and Wander Ltd. v. Antox India Pvt. Ltd, 1990 (Supp) SCC 727. In Printers Pvt. Ltd (supra) it was held:-
"Where the discretion vested in the court under Section 34 has been exercised by the trial court the appellate court should be slow to interfere with the exercise of the said discretion. In dealing with the matter raised before it at the appellate stage the appellate court would normally not be justified in interfering with the exercise of discretion under appeal solely, on the ground that if it had considered the matter at the trial stage it would have come to a contrary conclusion. If the discretion has been exercised by the trial court reasonably and in a judicial manner the fact that the appellate court would have taken a different view may not justify interference with the trial court's exercise of discretion. As is often said, it is ordinarily not open to the appellant court to substitute its own exercise of discretion for that of the trial judge; but if it appears to be appellate court that in exercising its discretion the trial court has acted unreasonably or capriciously or has ignored relevant facts and has adopted an un-judicial approach then it would certainly be open to the appellate court-and in many cases it may be its duty-to interfere with the trial court's exercise of discretion. In cases falling under this class the exercise of discretion by the trial court is in law wrongful and improper and that would certainly justify and call for interference from the appellate court."
14. Whereas in Wander Ltd. (supra) the Apex Court held that in an appeal in exercise of discretion by the Single Judge the appellate Court will not interfere with the exercise of discretion by the first Court. The relevant observation of the Apex Court is extracted as under:-
"The appeals before the Division Bench were against the exercise of discretion by the Single Judge. In such appeals, the appellate court will not interfere with the exercise of discretion of the court of first instance and substitute its own discretion except where the discretion has been shown to have been exercised arbitrarily, or capriciously or perversely or where the court had ignored the settled principles of law regulating grant or refusal of interlocutory injunctions. An appeal against exercise of discretion is said to be an appeal on principle. Appellate court will 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 Page 1801 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 if it had considered the matter at the trial stage it would have come to a contrary conclusion. If the discretion has been exercised by the trial court reasonably and in a judicial manner the fact that the appellate court would have taken a different view may not justify interference with the trial court's exercise of discretion."
The following principles emerge from all this:-
i) Though there is no statutory limitation or restriction on the power of Appellate Court, it would not normally interfere in an order of discretion, even if it wanted to take a different view in the matter. Nor would it substitute its own view or exercise of its own discretion for that of the Trial Judge.
ii) This would hold good only in a case where the order passed in discretion is based on sound judicial discretion, on consideration of the material on record and is in conformity with the principles governing the grant or refusal of interlocutory injunctions.
iii) The appellate court would, however interfere and reverse the order, if it is found to have been passed arbitrarily, capriciously or perversely or in disregard of the principles regulating the grant or refusal of interlocutory injunction.
15. The object of an interlocutory injunction is to preserve a status quo in the rights of the parties pending adjudication of the suit. The principles/norms governing its grant or refusal are both well-known and well established. It is liable to be granted where the plaintiff establishes a prima facie case, shows that the balance of convenience is on his side and that the refusal to grant it would cause irreparable harm, damage and hardship to him. The Supreme Court in Dalpat Kumar and Anr. v. Prahlad Singh and Ors. , dealing with the principles regulating the grant of interlocutory injunction, said:-
"The phrases "prima facie case", "balance of convenience" and "irreparable loss" are not rhetoric phrases for incantation, but words of width and elasticity, to meet myriad situations presented by man's ingenuity in given facts and circumstances, but always is hedged with sound exercise of judicial discretion to meet the ends of justice."
16. On the purpose of such injunction, it held in Wander Ltd.'s case (supra):-
"The appeals before the Division Bench were against the exercise of discretion by the Single Judge. In such appeals the appellate court will not interfere with the exercise of discretion of the Court of first instance and substitute its own discretion except where the discretion has been shown to have been exercised arbitrarily, or capriciously or perversely or where the court had ignored the settled principles of law regulating grant or refusal of interlocutory injunctions. An appeal against exercise of discretion is said to be an appeal on principle. Appellate court will not Page 1802 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 if it had considered the matter at the trial stage it would have come to a contrary conclusion. If the discretion has been exercised by the trial court reasonably and in a judicial manner the fact that the appellate court would have taken a different view may not justify interference with the trial court's exercise of discretion."
17. This leaves a very limited scope for us to interfere and prevents us from conclusively examining the legal issues raised before us. Therefore, confining ourselves to these well-demarcated boundaries, all that remained to be seen was whether the impugned order could be reversed. A careful reading of the impugned order shows that the learned Trial Judge had vacated the injunction and declined the ad interim relief primarily on factors:-
i. That once appellant was seeking relief of an injunction, they were required to disclose not only pendency of earlier suit in which injunction was sought and rejected, but also suit for cancellation of Kewal Raj and Co's design which was also dismissed.
ii. Non disclosure of fact that certain parties were manufacturing toothbrushes since 1991 when design was registered in their name iii. If information having bearing on exercise of discretion is withheld, court is justified in refusing exercise of discretion.
iv. If such facts were disclosed, may be court would not have granted ex-parte injunction v. on suppression of facts, misleading the court and not coming to the court with clean hands leads to vacation of injunction vi. though the case is not of design and is of copyright, the observations made in case of Kewal Raj and Co and Hindustan Lever Limited are fully applicable
18. Regard being had to this, it can't be, by any logic, said or suggested that this reasoning was in any way capricious or perverse or that the ad interim relief had been declined to appellants arbitrarily or on any unreasonable exercise of judicial discretion. It is also not the case that Ld. Trial Judge had ignored or overlooked the principles and norms regulating the grant of interlocutory injunctions or that he had left out any material or plea out of consideration. From the perusal of entire order of the Learned Single Judge it appears that he was of the view that if the copyright does not exist in the final product, the copyright in the moulds would also be not be there, as the final product emerges from the moulds. Therefore the plea that the copyright in the moulds have not been considered by the Learned Single Judge, appears to be erroneous. The Learned Single Judge had held though other cases were of design whereas the present cases are of copyright, yet observations of Page 1803 those cases are also fully applicable. In the circumstances it can not be inferred that the Learned Single Judge did not consider the case of alleged violation of copyright of the Plaintiffs in the mould. In any case this is the prima facie view and the matter is still pending and is to be adjudicated finally after the parties will lead their evidence and prove the documents.
19. Therefore, given regard to our limited jurisdiction to reverse an order passed in discretion and Appellants' failure to make out a case for grant of interlocutory injunction, we are left with no option but to affirm the orders passed by Ld. Trial Judge declining grant of ad interim injunction.
20. Anything said or any observation herein or in the impugned order shall be treated tentative in nature and shall not constitute any expression of final opinion on the issues involved in Appellants' suits and shall have no bearing on the final merit of pleas and contentions of the parties in the suit.
31. Consequently the appeals are dismissed and the parties are left to bear their own costs.