Bombay High Court
Ifra Sheikh, Trading As Rocket Bidi ... vs M/S Mobile Bidi Traders, Partnership ... on 4 November, 2025
2025:BHC-NAG:11393
AO.19.2025 Judgment.odt
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
APPEAL AGAINST ORDER NO.19 OF 2025
APPELLANT :- Ifra Sheikh
(Ori. Defendant --- On R.A.)
Trading as Rocket Bidi Works,
Having Office at: Flat No.402, Plot No.5/6,
the Arch Apartment, Raja Ram Society, Opp
Walidain Masjid, Katol Road, Nagpur.
Through Power of Attorney
Mohammad Yaqub s/o Mohammad Ishaque,
aged about 46, R/o Flat No.402, Plot No.5/6,
The Arch Apartment, Rajaram Society,
Opposite Walidain Masjid, Katol Road,
Nagpur. District Nagpur, Maharashtra.
..VERSUS..
RESPONDENTS :- M/s Mobile Bidi Traders
(Ori. Plaintiff ---- On R.A.)
A partnership Firm, having place of Business
at First Floor, Plot No.3, Beside Indian Oil
Petrol Pump, Ranala, Kamptee Taluka
Kamptee, District Nagpur.
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Mr. S. Zia Quazi, Advocate for Appellant.
Mr. D.V. Chauhan, Senior Adv. a/b Mr. A.D. Chaudhari, Adv. for the Respondent.
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CORAM : ROHIT W. JOSHI, J.
DATE OF RESERVING THE JUDGMENT: 16.10.2025
DATE OF PRONOUNCING THE JUDGMENT: 04.11.2025
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1. Heard.
2. Rule. Rule is made returnable forthwith. Heard finally
with consent of learned counsel for the respective parties.
3. The present appeal is preferred challenging the order
dated 12.08.2025, passed by the learned District Judge-12, Nagpur,
on application at Exh.20 in Trademark Suit No.05 of 2024
whereby the present appellant/original defendant is restrained by
way of temporary injunction from using trademark of the
respondent/plaintiff with respect to trademark, "Online BIDI" till
the final disposal of the suit. The parties will be hereinafter referred
as "plaintiff" and "defendant".
4. The plaintiff has filed a suit being Trademark Suit No.05
of 2024 against the defendant. The plaintiff's case is that it is
engaged in the business of manufacturing, marketing, and selling
handmade bidis and matchboxes since 2005. It is contended that,
the plaintiff has registered its trademark and copyright under the
provisions of the Trade Marks Act, 1999 and the Copyright Act,
1957. It is stated that the application for registration of trademark
"Online BIDI" was made on 31.08.2017 and the same was
registered on 04.01.2020 in class-34. The plaintiff has also stated
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that the design of the label is an artistic work and that the same is
registered by the Registrar of Copyrights on 13.06.2024. The
plaintiff contends that the label/trade-dress of the Bidis has unique
and distinguishing features which provide distinct identification to
the product of the plaintiff. It is stated that, because of the blue
colour theme of the trade-dress/packet/label, the bidis of the
plaintiff are famous in the market and are commonly identified and
referred as "Asmani Puda". The plaintiff contends that the defendant
is doing business of sale of Bidis under the brand name "ATM BIDI
No.07". The plaintiff states that the colour scheme of the packet and
bundle of the defendant is deceptively similar with that of the
plaintiff. It is contended that, the end consumer of the product are
workers, labours and generally people from illiterate/uneducated
strata of the society who are gullible and therefore, susceptible to
being misled into buying the product of the defendant believing it
to be product of the plaintiff.
5. The plaintiff also filed an application for grant of
temporary injunction seeking order restraining the defendant from
using the trademark during the pendency of the suit. The said
application came to be marked as Exh.20.
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6. The defendant filed written statement and reply
opposing the suit and the application for grant of temporary
injunction. The defendant contends that the two trademarks are not
similar as contended by the plaintiff. The defendant stated that
whereas the trade-name of the plaintiff is "Online BIDI", the trade
name of the defendant is "ATM BIDI No.07". The defendant has
pleaded that the design appears for trade-dress of the plaintiff and
defendant does not bear any resemblance and that the apprehension
expressed in the plaint and application for grant of temporary
injunction is misconceived. The defendant also contends that it had
altered its original design with a view to avoid any dispute, and that
after the design was altered, there was no question of any customer
being misled, since the designs are in no way similar. Apart from
this, the defendant has raised a contention that the outer packet in
which the cigarette bundles are packed and sold by the plaintiff does
not carry statutory warning as per Rule 3(e) of the Cigarettes and
other Tobacco Products (Packaging and Labelling) Rules, 2008
(hereinafter referred to as "Cigarettes and Tobacco Rules, 2008") in
as much as the outer packaging in which the cigarettes bundle are
sold does not have health warning as prescribed under the said
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Rules. It will be pertinent to mention that the said Rules are framed
in exercise of powers conferred by the Sections 7(1), 8(2), 10 and 31
of the Cigarettes and other Tobacco Products (Prohibition of
Advertisement and Regulations of Trade and Commerce,
Production, Supply and Distribution) Act, 2003 (hereinafter
referred to as "Act of 2003"). It is contended that since the business
is not conducted by the plaintiff in accordance with statutory rules,
it is not entitled to claim discretionary relief of temporary
injunction.
7. It will be pertinent to mention that, the defendant had
filed an application under Order 7 Rule 11 of the Code of Civil
Procedure, 1908, seeking rejection of the plaint on the ground that
the plaintiff was not conducting the business in accordance with the
aforesaid rules. The said application for rejection of plaint is rejected
by the learned trial Court. The leaned trial Court has allowed the
application for grant of temporary injunction vide order dated
12.08.2025. The learned Trial Court held that the trademarks in
question have a common colour scheme and blue flash and
therefore, it would be difficult for a customer to identify and
differentiate one product from the other. The learned Trial Court
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further observed that bidis are products generally purchased by
customers who identify them by their appearance and, therefore, are
susceptible to confusion and deception on account of similarity in
the appearance of the products. In view of such observations, the
application for temporary injunction came to be allowed. The said
order dated 12.08.2025 allowing the application for grant of
temporary injunction is subject matter of challenge in the present
case.
8. Mr. Zia Quazi, learned Advocate for the
appellant/defendant has contended that, the dispute between the
parties was with respect to earlier design/trade-dress of the
defendants, which was discontinued by the defendants w.e.f.
01.07.2024. He contends that although the earlier design was also
not similar to the design of the plaintiff, the defendants in order to
avoid any dispute, altered the design of their label. He has referred
to the paragraphs 19 and 25 of the plaint to draw attention to the
earlier trade-dress of the defendant and the trade-dress, which is
being used by them since 01.07.2024.
9. Mr. Quazi, learned Advocate contends that the learned
trial Court should have rejected the application for grant of
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temporary injunction having regard to the distinguishing features in
the trade labels. He states that the trade name of both the products
viz., "Online BIDI" of plaintiff and "ATM BIDI No.07" of
defendant has no resemblance. He further states that, the words
"Online BIDI" are written in a blue colour elliptical/oval which is
towards the right top side of the packet of the plaintiff, as against
which, in the packet of the defendant, the words "ATM BIDI
No.07" are written in a rectangular hyperbola. The photo of Bidi is
displayed in rectangular portion whereas in the label of defendant,
the photo of Bidi is displayed in a semi circular portion. He further
contends that at the bottom of the packet, the words "Special Kadak
Bidi" are prominently displayed on the defendant's packet, which is
not the case with the plaintiff's packet.
10. He further states that in order to seek order of injunction,
the plaintiff must establish his goodwill and reputation in the
market on the basis of the registered trademark. He contends that
although the registered trademark is claimed to be with respect blue
coloured label, the plaintiff is selling product in labels bearing three
to four different colours. He states that although the sale figures
referring to turnover are mentioned in the plaint, the breakup of the
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sale figures is deliberately not provided and therefore, it cannot be
ascertained what sales are achieved by the plaintiff in respect of bidis
sold in blue-coloured packets. He contends that the learned trial
Court has not taken into consideration these aspects of the matter
and therefore, the impugned order deserves to be quashed and set
aside by allowing the appeal.
11. Per contra, Mr. D.V. Chouhan, learned Senior Advocate
for the respondent/plaintiff contends that there is striking similarity
between the trade-dress of the plaintiff and that of the defendant.
He contends that the blue coloured conical hash is the principle
theme of design of the product of the plaintiff and the defendant
has adopted the same design with a view to sell his product by
misleading customers into believing that the said product is product
of the plaintiff. He emphasizes that the customers are generally poor
labours who are not adequately educated to differentiate between
the two products due to similarity in design.
12. Mr. Chouhan, learned Senior Advocate for the
respondent, submits that the product is sold in retail in a bundle,
and therefore, it is the design of the bundle that matters and not the
outer packet in which the products are supplied to the retailers.
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Mr. Chouhan, learned Senior Advocate places strong reliance on
judgments of the Hon'le Supreme Court and this Court in the
matter of Wander Ltd. and another ..vs.. Antox India P. Ltd ,
reported in 1990 (Supp) SCC 727 and in the matter of ITC Limited
..vs.. NTC Industries Ltd, reported in 2015 SCC OnLine Bom
4976, to contend that the present appeal is an appeal against a
discretionary order of temporary injunction and that the scope of
interference in appeal is very narrow. He argues that the learned
Trial Court has exercised its discretion having regard to all the
material facts and legal provisions and that this Court should not
substitute its own discretion for the discretion exercised by the
learned Trial Court. As regards the contention with respect to the
provisions of the Act of 2003 and Cigarettes and Tobacco Rules,
2008 framed under, Mr. Chouhan, learned Senior Advocate drawn
attention to the label of the bundle of the plaintiff on which
statutory health warning is printed as prescribed under the
packaging Rules. He states that the statutory warning is meant for
the end consumers who purchase the bundles and therefore, the
provisions of the Packaging Rules must be interpreted meaningfully,
having regard to the principle of purposive interpretation. He
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submits that, failure to publish statutory warning on outer label will
therefore not mean that the product is not sold in accordance with
the Packaging Rules.
13. Mr. Quazi, learned Advocate for the appellant in reply
would submit that since the Tobacco Act and Packaging Rules
framed thereunder deal with cigarettes and tobacco products, the
rules must be interpreted strictly, particularly because the Rules deal
with statutory health warning. He further states that there is no
ambiguity in the Rules and therefore, principle of literal
interpretation must be adopted while interpreting the same.
14. Having regard to the principles laid down by the Hon'ble
Supreme Court in the matter of Wander Limited (Supra), the
present appeal cannot be heard like as a first appeal which is the
appeal on facts and law. The scope of present appeal will be
restricted to ascertain as to whether the learned trial Court has
decided the application for grant of temporary injunction having
regard to the legal principles, governing interlocutory injunctions
and has considered the facts of the case properly. This Court cannot
interfere with the discretion exercise by the learned trial Court
and/or substitute its discretion for the discretion of the learned trial
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Court. The appeal needs to be decided having regard to the
aforesaid legal principle with respect to the scope of the appeal.
15. It is not in dispute that the trademark of plaintiff is a
registered trademark. The plaintiff also has a registered copyright
with respect to design of the trade label. In principle, this Court is in
agreement with the learned Senior Advocate for the respondent that
comparison of Bidi bundles is required to be made rather than
comparison of the packet in which Bidi bundles are sold by
wholesaler to retailers. The end consumer will normally purchase
Bidis in bundles or loose bidis and not the packet in which the
bundles are packed for sale by wholesaler to retailers. Perusal of the
conical Bidi bundles of the plaintiff and defendant will demonstrate
that both the bundles have statutory health warning which covers
most of the surface area. Both the bundles have a blue colour conical
hash, in which the trade names are mentioned. The Bidi bundles do
appear to be similar due to the conical blue flash design. The
learned trial Court while dealing with the application for temporary
injunction has taken into consideration the trade dress/packet of the
bidi bundles of the plaintiff and defendant and has arrived at prima
facie satisfaction that the trademark of the defendant is deceptively
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similar to registered trademark of the plaintiff. The learned trial
Court has also given due regard to the fact that the end consumer of
the product is generally a person coming from relatively uneducated
and poor class. Such consumer is gullible and identifies product by
its design rather than name and as such is likely to be confused by
the similarity in the design of the bundle of both the products. The
observations made by the learned trial Court appear to be in
consonance with the law laid down in the matter of ITC Limited
(Supra), which is also a case of breach of trademark of a cigarette.
16. As regards the contention of Mr. Quazi, learned
Advocate for the appellant, with respect to the distinguishing
features of the two labels, the submissions are predominantly in
relation to the outer packet, which is meant for use in wholesale
trade, and not the bundle, which is meant for retail sale. Apart from
that, the contention cannot be accepted in view of the law laid down
in M/s Hiralal Industries Ltd. ..vs.. S.M. Associates and others ,
reported in AIR 1984 Bom 218, which categorically holds that the
distinguishing features between the trade dress of two products
should not be given much weight if, on overall view of the two trade
dresses, broad similarities emerge that are sufficient to create
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confusion in the mind of the end consumer. A perusal of the
bundles of the plaintiff and the defendant indicate broad similarities
arising from the use of blue colour highlight. It needs to be
reiterated that the end consumer of the product is generally not a
very literate individual. The controversy needs to be appreciated
applying arm chair rule. Moreover, discretion exercised by the trial
Court cannot be substituted by that of this Court.
17. The contention with respect to the failure to provide a
breakup of the figures relating to the sale of bidis sold under other
labels or colours also cannot be accepted, since the registered
trademark and the registered copyright pertain to the blue-coloured
label. The trademark of the plaintiff is registered and needs to be
protected.
18. It is also necessary to deal with contention of the
defendant with respect to the provisions of Tobacco Act and the
Packaging Rules framed thereunder. The contention of the learned
Advocate for the appellant is that the external packaging in which
Bidi bundles are packed by the plaintiff does not display specified
health warning although it is mandated by the relevant Rules. In
support of his contention, the learned Advocate has placed reliance
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on Rule 3(e) of the Cigarettes and other Tobacco Products
(Packaging and Labelling) Rules, 2008, which reads as under :-
"3(e). No product shall be sold unless the package contains the
specified health warning:
Provided that the specified health warning shall be printed,
pasted or affixed on every retail package in which the tobacco
product is normally intended for consumer use or retail sale, as
well as any other external packaging, such as cartons or boxes
and will not include other packaging such as gunny bags."
19. Perusal of the external packaging of the plaintiff does not
disclose specified health warning. However, specified health
warning appears on the Bidi bundles of the plaintiff. Section 7 of
the Act of 2003, prohibits any person from engaging in the business
of cigarettes or other tobacco products unless every package of
cigarettes or tobacco products bears the specified health warning,
including pictorial warnings. The term "package" is defined under
Section 3(i) of the Act of 2003 and the definition is an inclusive
definition which includes a wrapper, box, carton, tin, or other
container. Section 20 of the Act of 2003, provides that any person
who manufactures or sells cigarettes or tobacco products without the
specified warning on the package or label shall, on conviction for a
first offence, be liable to punishment with imprisonment for a term
which may extend to two years or with a fine of upto Rs.Five
Thousand or with both; and for a second or subsequent conviction,
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with imprisonment for a term which may extend to five years, and
with a fine which may extend to Rs.Ten Thousand. Section 14 of
the Act of 2003, provides for confiscation of cigarettes or other
tobacco products in case of contravention of the provisions of the
Act. Section 15 of the Act of 2003, provides that in case of
confiscation of any packet of cigarettes or other tobacco products,
the Court adjudicating on the confiscation may give the owner of
the product an option to pay amount equal to the value of the goods
confiscated and release the same on condition that the same shall
not be sold without specified warning and other specifications
which are required to be incorporated on the packet. Thus, even if
the contention of the defendant with respect to breach of the
packaging Rules is accepted, the consequence that is provided under
Section 15 of the Act of 2003 will also have taken into
consideration. Even in case of confiscation, the plaintiff will be
entitled to seek release of the bidies and then to sell the same by
incorporating appropriate statutory warning on the external packet.
Therefore, the alleged breach of provisions of packaging rules will
not itself be ground for setting aside the order of temporary
injunction. It will be pertinent to mention that, it is not the case of
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the defendant that the authorities under the Act have taken any
action against the plaintiff on account of failure to display statutory
warning on the external packet meant for wholesale business. It is
also not in dispute that the bidi bundles display statutory health
warning in accordance with the provisions of the Packaging Rules. It
must also be stated that orders restraining acts of infringement and
passing of benefit off benefit not only to the owner of the trademark
but also the end consumer.
20. In light of the aforesaid, in the considered opinion of this
Court, no case for interference is made out. The appeal is therefore,
liable to be dismissed and is accordingly dismissed.
Rule is made absolute in above terms. No order as to
costs.
(ROHIT W. JOSHI, J.)
C.L. Dhakate
