Mrs. Sheila Mahendra Thakkar ... vs Shri Mahesh Naranji Thakkar
2003 Latest Caselaw 553 Bom

JUDGMENT

A.P. Shah, J.

1. Appellant in this appeal is defendant in Suit No. 2162 of 1992 and assails the order dated April 12, 1994 of Jhunjhunuwala J. granting an interlocutory injunction restraining appellant from infringing respondents' registered trade mark "Vandevi" for 9 qualities as mentioned in Schedule II of Deed of Dissolution dated September 9, 1991 and from manufacturing 10 qualities instead of 9 qualities as mentioned in Schedule I of Deed of Dissolution including quality of Vandevi Superfine Powder containing ingredient approximately 73% rice flour, edible gum, Asafoetida which in fact is Vandevi Yellow Powder and from selling two different qualities under the label of Vandevi Superfine Powder so as to pass-off appellant's goods as and for respondent's goods. The respondent is plaintiff. The appellant and respondent are brothers. They along with their mother Maniben Thakkar were carrying on business of manufacturing, selling and dealing in different qualities of compounded Asafoetida and Asafoetida in the name and style of M/s V.N. Thakkar Hingwala and Co. The partnership firm manufactured, sold and dealt in 18 different qualities of compounded Asafoetida and was registered proprietor of 3 trade marks, namely, (i) Vandevi (name) (ii) Vandevi 2001 (label) and (iii) Vandevi (device). After the death of Maniben Thakkar in June, 1990, the appellant and respondent continued the said business in partnership each having 50% share.

2. In or about 1991, the brother decided to dissolve the firm of V.N. Thakkar Hingwala & Co. and to start separate businesses by dividing qualities under the trade mark "Vandevi" and to manufacture and trade in 9 district qualities each, so as not to tread or infringe upon the qualities and business of each other. Pursuant to the said decision and in order to obtain permission of the Registrar of Trade Marks as required under Section 39 of the Trade and Merchandise Mark Act, 1958, the parties prepared an agreed draft of Deed of Dissolution, inter alia, allotting 9 qualities each respectively to the appellant and respondent. Under the draft Deed of Dissolution, the respondent transferred and assigned to the appellant qualities under the trade mark Vandevi 86904, Vandevi 2001 No. 173429 and Vandevi Label 85961 as mentioned in the First Schedule thereunder. Similarly, the appellant transferred and assigned to the respondent qualities under the trade mark Vandevi 86904, Vandevi 2001 No. 173429 and Vandevi Label No. 85961 as mentioned in the Second Schedule attached to the draft Deed of Dissolution. Clause 4 of the draft deed which is material for the purpose of this appeal reads as follows:-

4. It is agreed between the parties that the said trade mark "Vandevi" No. 86904, "Vandevi 2001" No. 173429 and Vandevi Label No. 85961 will always have only 18 qualities as hereinabove mentioned and no party shall introduce, use or apply for registration of any other quality and/or any other goods in respect of the said trade mark "Vandevi" 86904, "Vandevi" 2001 No. 173429 and Vandevi Label 85961. The parties hereto shall not use Labels Wrappers and colour-scheme of the said trade mark Vandevi for any other trade marks".

We may add that the First and Second Schedules referred to in the draft Deed divide the products having Vandevi Mark in accordance with their qualities. In the instant case, we are concerned with two products, namely, Vandevi Superfine Powder and Vandevi Powder (Yellow). Vandevi Superfine Powder was allotted to the appellant whereas Vandevi Powder (Yellow) was allotted to the respondent.

3. The parties thereafter jointly made an application to the Registrar of Trade Marks in Form No. TM 17 for approval of the Deed of Dissolution. In the said application, it was inter alia stated that the applicant have been manufacturing and offering for sale 18 qualities of Asafoetida under the Trade Mark "Vandevi". These qualities are identified by various purchasers independently of other qualities meaning thereby that the purchaser of one quality would normally not purchase the other quality and it was proposed to distribute these qualities amongst the parties in a manner which is mutually acceptable to both together with other assets of the firm. By letter dated August 20, 1991, the Registrar of Trade Marks, approved the Deed of Dissolution subject to condition that the registered proprietor shall use the mark only in relation to the goods mentioned in the First Schedule/Second Schedule of the draft Deed of Dissolution submitted. On 9th September, 1991 a formal Deed of Dissolution between the appellant and the respondent containing clauses as mentioned above and consequently dividing the qualities with reference to the trade mark "Vandevi" was executed. The firm of V.N. Thakkar Hingwala & Co. was dissolved. The Dissolution Deed contained specimen labels signed by both the parties on the reverse thereof. Thereafter the parties filed their respective affidavits before the Registrar of Trade Marks. In the affidavit which was filed on behalf of the appellant, he specifically agreed to incorporate distinguishing feature to the mark in respect of the qualities that have been allotted to him. In para 10 of the affidavit, the appellant stated as follows:

10. That I agree to use only the mark in relation to the 9 qualities mentioned in the first schedule of the draft deed of dissolution and also in the first schedule hereunder written. I also agree to add distinguishing features to the mark while in actual use. I further agree that there shall be 18 qualities under the mark VANDEVI and which qualities have been divided between the said Mahesh and myself as mentioned in the first and second schedule of the said deed of dissolution, as well as the first and second schedule hereunder written, I agree to use the mark only in respect of the qualities allotted to me as mentioned in the first schedule of the deed of dissolution and also first schedule hereunder written."

Schedule annexed to this affidavit clearly indicates 9 qualities each to be divided between the parties. The schedule also contained particulars of qualities to be divided between them.

4. On 14th October, 1991, the Registrar of Trade Marks passed necessary orders for assignment of the trade mark. A formal order of Registrar of Trade Marks approving the respective assignment of the respective qualities was passed on 11th June, 1992. The order specifically contained a condition as under:

"It is condition of registration that the mark while in use will conform to the convenient of the Dissolution Deed dated 9.9.91.

CONDITION: It is condition of registration that the actual use of the trade mark shall be used along with the Trading style of the Registered Proprietor.

GOODS AMENDED: In pursuant to order dated 14th October, 1991, passed on request on Form TM-17 dated 08th July, 1991, particulars of goods is amended as Asafoetida of qualities mentioned in Schedule-II of dissolution deed dated 09th September, 1991."

Accordingly, registration certificates were issued to the respondent bearing No. 86904, 85961 and 173429. Separate registration certificates were issued to the appellant bearing No. 86904-SP1, 85961-SP1 and 173429-SP1. After dissolution the parties started carrying on business under separate names. Appellant carried the business in the name of N. Thakkar Hingwala & Bros. whereas the respondent carried the business in the name of V.N. Thakkar Hingwala & Sons.

5. In or about July, 1992, the appellant started making and selling the product under the brand name 'Vandevi' which was of the quality identical to 'Vandevi Powder (Yellow)' which was assigned to the respondent. The appellant started selling the said product under the name of Vandevi Superfine Powder. In other words, the appellant started selling quality of Vandevi Powder (Yellow) with all ingredients of Vandevi Powder (Yellow) under the guise of Vandevi Superfine Powder. The fact that the appellant has changed the ingredients of his product Vandevi Superfine Powder and product which is sold under the name "Vandevi Superfine Powder" is similar, if not identical, to the respondent's product Vandevi Powder (Yellow) is not disputed by the appellant. We may mention at this stage that the ingredients of Vandevi Powder (Yellow) which the partnership from inception was manufacturing and selling it, and on dissolution of the partnership it was allotted to the respondent are approximately 73% rice flour, edible gum and Asafoetida. The ingredients of Vandevi Superfine Powder, which the said partnership from inception was manufacturing and selling and which product on dissolution of the said partnership was allotted to the appellant consists of wheat flour approximately 31%, edible gum and Asafoetida. Thus, the main ingredient of Vandevi Powder (Yellow) is rice flour whereas the main ingredient of Vandevi Superfine Powder is wheat flour. The respective labels used for the said qualities mention the said ingredients. However, from July 1992, the appellant started manufacturing and selling Vandevi Superfine Powder having ingredients of rice flour 73% approximately, edible gum and Asafoetida i.e., similar to the ingredients and colour of Vandevi Powder (Yellow) allotted to the respondent under the Deed of Dissolution. According to the respondent, this amounted to dishonest trade practice. By changing the ingredients of Vandevi Superfine Powder, the appellant is trying to pass-off the goods of the respondent as his own goods. It is also contended that the appellant by doing so has infringed the trade mark of the respondent. It is also contended that this is in breach of negative covenant specifically incorporated in the Deed of Dissolution. Thus, the respondent has based his action on three grounds, namely, (i) passing off. (ii) infringement of the registered trade mark and (iii) breach of negative covenant. The learned single Judge held, interalia, that all the three grounds have been established and granted interim injunction in terms of prayer Clauses (a) and (b) of the Notice of Motion.

PASSING OFF:

6. There is not much dispute on facts. It is an admitted position that the appellant has been from July 1992 dealing in the quality of compounded Asafoetida manufactured in the name of Vandevi Superfine Powder made of rice flour 73% approximately and totally discontinued the ingredient of wheat flour therein. With this change in the main ingredient the product which is sold by the appellant under the brand name Vandevi Superfine Powder is actually the product 'Vandevi Powder (Yellow)' which has been assigned to the respondent under the Deed of Dissolution. The question is whether this would, in law, amount to passing-off.

7. Mr. Kapadia, learned Counsel appearing for the respondent conceded that it is not the case of the respondent that the appellant passed-off his goods as respondent's goods, but he submitted that there was included within the concept of tertius passing off the form sometimes known as "reverse passing off". He submitted that reverse passing-off or inverse passing off is the name given to the situation where the defendant takes the benefit of plaintiff's reputation in a less direct way by claiming that the goods or services for which the plaintiff properly deserves credit were in fact his. Mr. Kapadia submits that substance of the respondent's case is clearly within the established principles of reverse passing off. He relied upon a series of cases: Samuelson v. Producers Distributing (1931) 48 R.P.C. 580: Plomien Fuel Economiser Coy. Ltd. v. National School of Salesmanship Ltd., (1943)60 R.P.C.209: Bristol Conservatories Ltd. v. Conservatories Custom Built Ltd., (1989)15 R.P.C.455 and Gloag & Son Ltd. v. Welsh Distilleries Ltd.; Fleet Street Reports (1998) 718.

8. On the other hand, Mr. Doctor, learned Counsel appearing for the appellant submitted that tort of passing-off is limited to that tort in its classic form i.e. to say that the defendant passed off his goods as the plaintiff's goods. According to Mr. Doctor, even assuming that the averments made in the plaint are correct, the case would not fall within the established concept of passing-off and, therefore, the respondent is not entitled to any interlocutory reliefs. He submitted that in any event the mere use of falsehood by a defendant about his own goods or attributes would not form the basis of a passing-off is clearly ruled out because it is not alleged that any member of the public would associate the product with the respondent nor any case was made out that there would be confusion in the minds of the public. Therefore, according to him case of passing-off was not established.

9. We shall take first the case of Samuelson cited by Mr. Kapadia. In Samuelson, the plaintiff was the author under his stage name Lawrie Wylie of a humorous sketch, The New Car, which had been performed successfully before the King and Queen at a Royal Command Performance and had attracted favourable review. The defendants retained the principal comedian from the sketch to write and perform a film version which emerged as totally different to the original. The defendants used misleading quotations from newspaper reviews of the Command performance to advertise their film as if it was the sketch which had pleased the King and Queen. They argued that this was not passing-off but Lord Hanworth M.R. did not agree:

"It appears to me idle to say that this is not a passing-off. What was the purpose of what I have described as a moulding of the observations contained in The Daily Telegraph? To leave out Lawrie Wylie and refer to 'His First Car and not "The New Car". His First Car was the title of the film of the defendants and they were adducing its success a appropriate to and belonging to their film 'His First Car' when in truth and in fact it belonged to the plaintiff and his sketch 'The New Car'. That seems to me to amount to a notice or invitation: Come and see our film and when you have seen our film you will have seen the sketch which has been spoken of in the manner which is stated in the passages which appear in the advertisement. It appears tome quite clear that this was an attempt to pretend that the defendants sketch was the same as the sketch which had made Her Majesty the Queen laugh."

10. In Plomien's case the facts were as follows:

"The plaintiffs are manufacturers of a fuel economiser which has been marketed under the name "Plomien". The defendants, who at one time acted as sale agents for the plaintiffs...broke that relationship and started themselves to market an economiser which was manufactured for them. It was in respect of their transactions in connection with the marketing of that economiser that the passing off action was brought...the defendants engaged in a deliberate attempt to deceive by putting forward their economiser as being the same as the plaintiffs...they represented that certain tests which had been made were tests in connection with the defendants economiser, whereas in fact they were tests in connection with the plaintiffs economiser. They represented that certain economisers which had been fitted for a number of purchasers and which were in fact the plaintiffs economiser, were the defendants economiser."

The Court explained the principle of reverse passing off as follows:

"It is perfectly true that there is no evidence that a single person who purchased an economiser from the defendants had ever heard the plaintiffs; but in passing off there is no necessity that the person who is deceived should have known the name of the person who complains of the passing off. In many cases the name is not known at all. It is quite sufficient, in my opinion, to constitute passing off in fact, if a person being minded to obtain goods which are identified in his mind with a definite commercial source is led by false statements to accept goods coming from a different commercial source.

Now in the present case what was it that these defendants did? They deliberately induced customers to come to their shop for the purpose of purchasing goods of the same manufacture as those supplied to the satisfied customers named on the List which they circulated. That was quite clearly their intention, because otherwise that was the use of circulating that list."

Then the Court further observed:

"Having got them in their shop, what do they do? They do not sell those customers the goods which those customers have come to buy: they sell them goods of their own manufacture, which are quite different, in the sense that they are not the required manufacture. If that is not passing off, I really do not know what is. It is perfectly true, and I am willing to assume, that not one single customer who went to the shop (I use the word shop of course metaphorically, it was nota shop at all: it was done by orders by post and by travellers and so forth) had ever heard of the plaintiffs or ever heard that they put on the market an economiser. That, to my mind, matters notone bit when it is realised that those customers were coming with the intention of getting goods from a particular source, namely, the same source as those from which the satisfied customers had get their goods."

11. In Bristel Conservatories case one of the individual defendants had worked for the plaintiffs as a salesman and had kept a blood of photographs showing conservatories designed and built by the plaintiffs. On his joining the defendants, who were a newly established business, he and other salesman used the photographs to show to prospective customers as examples of conservatories which the defendants had supposedly supplied. The plaintiffs successfully appealed from a decision of a Deputy High Court judge striking out the statement of claim as disclosing no reasonable cause of action. In a judgment with which the other members of the Court of Appeal concurred. Ralph Gibson L.J. preferred to follow the line of authorities comprising Samuelson vs.Producers Distributing. Plomien fuel Economiser v.National School of Salesmanship and rejected the line of first instance cases to the opposite effect. A final argument that Lord Fraser in Advocate and the members of the House who agreed with him had confined passing-off to its classic form and one specific extension to cover the Drinks Cases was also rejected.

"I do not intend to decide whether there is a form of the tort to be know as reverse passing-off. It is sufficient, I think, to hold that the facts alleged can properly be regarded as within the tort of passing off.

The claim in passing off is not...ruled out because it is not alleged that any member of the public, looking at any of the photographs, would associate any conservatory with the plaintiffs. No person affected by the misrepresentation in Samuelson's case, or in the Plomien case, or in the Henderson case would have known who the plaintiff in any of those cases was. That did not stop the plaintiff being injured in his property rights in the business or goodwill. Nor would it matter if there was nothing in any photograph to link the conservatory there depicted with the plaintiffs in any way. Next, it would not matter that there was no allegation that there would be any confusion in the minds of the public. The concept of confusion, in my views is irrelevant when the misprepresentation leaves no room for confusion. The prospective customer here is not left to perceive the difference between the two allegedly similar products, he is told simply and untruthfully that Custom Built designed and constructed the conservatories which provide the evidence for the experience, skill and reputation of the plaintiffs."

12. In the last case cited by Mr. Kapadia in Gloag & Sons Ltd. the complaint of the plaintiff was that defendants who were manufacturing Welsh Whisky were using Scotch Whisky as one of the ingredients and, therefore, activities of the defendants would dilute the reputation and goodwill attached to Scotch Whisky because by selling Scotch Whisky as Welsh Whisky, the defendants would be achieving a reputation for "Welsh Whisky which truly belongs to Scotch Whisky so that in the end the reputation which belong exclusively to the latter would be shared by Welsh Whisky as well. The defendants moved an application for striking of the statement of claim as disclosing no cause of action. Dismissing the application of the defendants Laddie J. held as under:

"The borderline between reverse passing off and cases falling outsides the tort was difficult to define and the plaintiffs claim was not bound to fail. They had a particular interest in the exclusive reputation of the words "Scotch Whisky", which interest clearly extended to preventing those words from being used on a beverage which was not Scotch Whisky but which could well extend further to prevent authentic Scotch Whisky from being used for the purpose of building up or reinforcing a misleading reputation in a misleading geographical denomination."

13. In our judgment, the principles applied by English Courts in Samuelson v. Producers Distributing: Plomien Fuel EconomiserCoy.Ltd. v. National School of Salesmanship Ltd.; Bristol Conservatories Ltd. v. Conservatories Custom Built Ltd.; and Gloag & Son Ltd. v. Welsh Distilleries Ltd. are well capable of application to the facts alleged by the respondent here. In the present case, the appellant is in effect selling the product Vandevi Powder (Yellow) which legitimately belongs to the respondent. Mr. Kapadia contended, and in our opinion rightly, that to call the said product "Vandevi Superfine Powder" is to perpetuate a misrepresentation on public. He contended that both respondent's business and goodwill will suffer. First, there will be a direct loss of business to the respondent. Secondly, there will be damage caused to the reputation of the respondents' brand. He contended that the appellant is wrongly generating the goodwill of his product which is in fact the product of the respondent. Mr. Doctor, however, argued that it is not even alleged that any member of public would associate the product sold by the appellant with the respondent. Therefore, the question of confusion would not arise. In our view, as held by Ralph Gibsons L.J. concept of confusion is irrelevant when the misrepresentation leaves no room for confusion. Prospective customer here is not left to perceive the difference between the two products. He is persuaded to buy a product under the name Vandevi Superfine Powder which is in fact a different product i.e.Vandevi Powder (Yellow) which belongs to the respondent. This action on the part of the appellant clearly falls within the ambit of tort of passing-off. The concept of tortuous passing off would include the case like the present one where the appellant is really misrepresenting the qualities which belong exclusively to the respondent as his own qualities. All the benefits of the qualities which belong to the respondent are being wrongfully appropriated by the appellant who is using the same to build up a false reputation of the appellant's Vandevi Superfine Powder. Such a wrongful action on the part of the appellant would certainly cause damage to the goodwill of the respondent and also mislead the ultimate consumer. All the three elements require to satisfy the tests of passing off, namely, (i) reputation and good will, (ii) misrepresentation by the defendant and (iii) likelihood of damage to the plaintiff have been established.

14. It is seen from the decided cases that reverse passing-off or inverse passing-off is not a nominate tort in its own right but a further example of actionable misrepresentation to which normal principles of passing off apply. Leading American case on inverse passing-off is a decision of United States Supreme Court in International News Service v. Associates Press (1918) 248 U.S.215. In that case the plaintiffs (Associated Press) were a news agency with a monopoly of reports from the Allied forces in the First World War. The defendants, a rival news agency reported this news by copying from the published bulletins of the Associated press and transmitting the news to their own subscribers, who published it without acknowledging its original source. No question of copyright infringement arose, because requirements for registration and notice were not met. The Supreme Court was split in its decision. For present purposes the most relevant judgment is that of Justice Holmes with whom Justice McKenna concurred. He would have found in the plaintiffs favour solely on the grounds that there had been no acknowledgement of the source of the news. Holmes J. rejected the idea of a general tort of misappropriation or unfair competition and based his judgment on an analogy with the law of passing off, which still corresponded closely to English common law.

"The ordinary case is a representation by device, appearance, or other indirection that the defendant's goods come from the plaintiff. But the only reason why it is actionable to make such a representation is that it tends to give the defendant an advantage in business and it is thought undesirable that an advantage should be gained that way. Apart from that the defendant may use such unpatented devices and uncopyrighted combinations of words as he likes. The ordinary case, as I say, is palming off the defendant's product as the plaintiff's but the same evil may follow from the opposite falsehood from saying, whether in words or by implication, that the plaintiff's product is the defendant's and that it seems to me, is what has happened here.

The falsehood is a little subtle, the injury a little more indirect, than inordinary cases of unfair trade, but I think that the principle that condemns the one condemns the other."

15. In the light of the foregoing discussion, we have no hesistation to hold that the ground of passing-off has been fully established.

INFRINGEMENT OF REGISTERED TRADE MARK

16. Mr. Doctor streneously contended that registration of trade mark (Vandevi) in favour of the appellant has no nexus with the quality of goods manufactured and sol by the appellant. What was registered in favour of the appellant is the trade mark "Vandevi" which the appellant is entitled to apply to the goods manufactured and sold by him without infringing the trade mark registered in favour of the respondent. The submission of Mr. Doctor is that it was not agreed between the parties that the particular ingredients only would be used in the quality of Asafoetida and compounded Asafoetida. In his submission, what was agreed upon was the use of mark to certain particular qualities and, therefore, mere change of some ingredients in the quality "Vandevi Superfine Powder" does not amount to infringement of the respondent's trade mark. Mr. Doctor submitted that word "quality" is interchangeably used for the word "variety" and word "quality" does not qualify the ingredients and, therefore, even assuming that the ingredients of the quality Asafoetida sold under the name of "Superfine Powder (Yellow) is similar to the product of the respondent still it cannot be said that the breach of such a condition would constitute infringement of the right to use a registered trade mark. The appellant was admittedly using the mark of which he was a registered proprietor and, therefore, the question of infringement does not arise.

17. In reply, Mr. Kapadia contended that the impugned label mark used by the appellant is admittedly used not exactly as registered but with certain material alterations therein. From his registered label mark the appellant has deleted the descriptive matter, namely, the words "wheat flour 31% and further substituted the same by inserting new words "73% rice flour" and hence the impugned label is clearly different from the registered label. Therefore, the altered label which is different from the registered label is an unregistered label in the eyes of law. Therefore, according to Mr. Kapadia, the respondent is entitled to sue and succeed against the appellant in an infringement action. Mr. Kapadia referred to Section 28(1) of the Act which gives the registered proprietor an exclusive right to use to registered trademark and to obtain relief for infringement in relation to goods in respect of which the trade mark is registered. He also referred to Section 29(1) which provides that the use of an identical trade mark is an infringement. He then referred to Section 30(1)(d) of the Act which protects the registered proprietor who uses a registered trade mark from being sued for infringement by another registered proprietor. Submission of Mr. Kapadia is that this protection is not available if the registered proprietor uses an altered unregistered trade mark. He placed heavy reliance of the decision of Madras High Court in Haw Par Brothers International Ltd. v. Tiger Balm Co. Pvt. Ltd., Madras 1995 IPLR 265.

18. The Tiger Baam's case the mark actually used by the respondent deferred substantially from the registered mark and was, therefore, held to be an unregistered mark in the eyes of law. In this connection the Division Bench of Madras High Court has observed thus:

"82. With reference to user of a mark with addition and alteration, our attention is drawn to a passage in Kerly's Law of Trade Marks and Trade Names, 12th Edition at page 310, para 15-41 which reads as follows:

"It is sometimes urged on behalf of the defendant, as an objection to the plaintiffs case, that the plaintiff in actual practice uses his mark in a form different from that for which he has obtained registration. But the variation of his registered mark by the plaintiff, provided it is not an infringement of any other person's mark, or a breach of any agreement binding upon him, is perfectly lawful, although, so far as the mark actually used differs substantially from his registered mark, it is an unregistered mark. It is well settled that the use of a varied mark by the plaintiff does not in any way stop him from proceeding against infringers."

It is seen from the passage itself that in sofar as the mark actually used differs substantially from the registered mark, it is an unregistered mark in the eye of law. Hence, the mark now used by the respondents must be considered to be only an unregistered mark in the present proceedings."

19. In the instant case the registered trade mark No. 173429 belonging to the partnership firm prior to its dissolution was a label mark which consisted of device of Vandevi and other descriptive matter. Pursuant to the Deed of Dissolution dated September 9, 1991 and order of the Registrar of Trade Marks dated October 14, 1991, this single label trade mark bearing No. 173429 was split into two separate registrations i.e. (i) trade mark registration No. 173429-SP I in favour of the appellant whereunder the original label was amended and replaced by 9 label marks as per the first schedule to the Deed of Dissolution (Clause 2) and trade mark registration No. 173429 in favour of the respondent whereunder the original label was amended and replaced by 9 label marks as per the second schedule to the Deed of Dissolution. There is no dispute that the impugned label was used not as registered but with material alterations as mentioned above. We find some force in the submission of Mr. Kapadia that the altered label which is different from registered label would be an unregistered label in the eyes of law. In our opinion, in the facts and circumstances of the case, the view taken by the learned single Judge was reasonably possible on the material placed on record and this Court would not be justified in the interfering with the exercise of discretion merely because contrary view is possible. We are not, therefore, inclined to interfere with the finding of the learned single Judge that there was infringement of registered trade mark of the respondent.

BREACH OF NEGATIVE COVENANT

20. We also find substance in the case of the respondent that there was a breach of negative covenant. It is seen from various clauses in the Deed of Dissolution that the parties have negatively covenanted to restrict themselves to 9 qualities assigned to them under the said deed and neither party could introduce use or apply for registration of any other quality or any other goods in respect of the said label. By selling the product "Vandevi Powder (Yellow)" under the name "Vandevi Superfine Powder" the appellant has clearly committed breach of negative covenant as contained in the deed of partnership. Mr. Doctor tried to contend that the respondent had also changed the composition of Vandevi-K-One Khad by changing it from 81% to 31% wheat flour and matching quality of 551 khada of the appellant. However, it has been pointed out by the respondent that there was a printing error on their label which was rectified at the earliest opportunity and even the product was discontinued thereafter. We may also mention that on behalf of the appellant affidavit of Smt. Sheela Thakkar was filed alleging that though the respondent was allotted Vandevi 751 Dana under the Deed of Dissolution he is selling the product in the name of Vandevi 751 Khada and has thus introduced a new quality and committed a breach of negative covenant. The respondent has, however, demonstrated that right from inception brand Vandevi 751 Dana was also known as Vandevi 751 Khada. Even under the Deed of Dissolution the product was described as Vandevi 751 Dana. However, the erstwhile firm was having the label of Vandevi 751 Khada and, therefore, the registration certificate of the respondent was granted in respect of Vandevi 751 khada. Thus, there is no substance in the grievance that the respondent himself has committed breach of covenant.

21. For these reasons, we find no force in this appeal. It fails and is dismissed with costs.