Dil Co. International vs Meso Private Ltd. And Anr.
2003 Latest Caselaw 154 Bom

JUDGMENT

H.L. Gokhale, J.

P.C.

1. Heard Ms. Antony for the Appellants. Mr. Shah appears for the Respondents.

2. The Respondents have filed a Suit contending that the Appellants are infringing their registered trade mark as also their copyright. They took out a Notice of Motion to restrain the Appellants from using a label with a caricature of a lady sitting near a window looking out at a man with a camel and a crescent shaped moon and also a seal. As far as the label is concerned, the learned Single Judge, who heard the Motion, accepted the submission of the Respondents that there was a marked similarity between the label used by the Appellants and the one used by the Respondents. He, therefore, granted injunction in so far as the label is concerned, which is annexed at Exhibit B to the Plaint. Asfaras the seal was concerned, the learned Judge formed the opinion after comparing two seals that there was a dis-similarity and, therefore, he did not grant interim relief sought.

3. Being aggrieved by that order, the present Appeal has been filed.

4. Ms. Antony, learned Counsel appearing for the Appellants, firstly submitted that there was no similarity even between the two labels and then submitted that this kind of depiction was common when it came to selling perfumes meant for ladies. As far as the first submission made by Ms. Antony is concerned, namely, that the labels are not similar, we have been shown the tins containing the labels and Mr. Shah, learned Counsel appearing for the Respondents, has rightly emphasized that while examining the question of similarity, broad and essential features have to be looked into. It is the overall similarity which one has to see as laid down by the Apex Court in the case of Parle Products (P) Ltd. v. J.P. & Co., Mysore, and this judgment of the Apex Court is followed by a Division Bench of this Court in the case of Hiralal Parbhudas v. Ganesh Trading Company and Ors., . We are, therefore, in agreement with the learned Single Judge as far as the first submission of the Appellants is concerned, namely, that there was, in fact, a similarity and, therefore, the injunction was necessary.

5. As far as the second submission of the Appellants is concerned, Mr. Shah points out that this point was not raised before the learned Single Judge. An objection on this footing would be available perhaps under Section 17(b) of the Trade and Merchandise Act, 1958. But, in the present case, the Respondents are having the particular label as their registered trade mark. This being so, in the facts of the present case, this submission would not be available to the Appellants. Appeal is, therefore, dismissed.