Raghbir Singh Jain vs Hansam Industrial Corporation ...
1994 Latest Caselaw 164 Del

JUDGMENT

Mr. Mahinder Narain, J.

1. The plaintiff states that he is the owner of the mark "KIWI" and is using it in conjunction with the numeral "999".

It is further the case of the plaintiff that the defendants are carrying on business in Vadodara, and that they sell their goods under the name "HANSAM". It is also asserted that the defendants use the numeral "555" in conjunction with their goods.

2. Kiwi is a bird. Its habitat is Australia. One of the places the word "KIWI" is to be found in India, is on a shoe polish container.

3. The numerals "999" and "555" have been used upon the goods in past. In conjunction with the works "State Express" for cigarette for more than 50 years. There cigarettes bearing the words "State Express 999" and "State Express 555" were freely available in India till the import restrictions came into being. Thereafter these cigarettes only exist in the unauthorised market, and are sold by those who manage them to acquire from confiscated goods shops, or from smugglers of goods.

4. "HANSAM" is the word used by the defendants. "Hansom", however, is a carriage. It is an animal driven vehicle. Usually a horse pulls "Hansom".

5. I am unable to see any similarity between "KIWI" on the one hand, and "Hansam" or "Hansom" on the other hand. One is a bird, and the other is an animal driven carriage. I am also unable to find any similarity between the numeral "999" and the numeral "555". Combination of "KIWI" with the numeral "999", and combination of "Hansam" with the numeral "555", to my mind, can cause no confusion, no deception.

6. The plaintiff wants to use the word "KIWI" with numeral "999" without any hindrance from defendants. The plaintiff seeks an ad interim injunction, restraining the defendants from threatening the defendants, who wishes to continue to use the word "KIWI" in conjunction with numeral "999".

7. Mr. Trivedi, appearing for the defendants, says that no threats have been held out by the defendants to the plaintiff. What the defendants have done is that they have obtained an injunction order from the District Judge, Vadodara. He has shown me a photo copy of the pleadings in the suit filed at Vadodara Court. In the pleadings I find that it is nowhere stated that "999" has been adopted by the defendants and that it is causing confusion or is likely to cause confusion, but a prayer is made in para 19 that till the final disposal of the application, the servants and agents of the defendants be restrained by an order of injunction from using the impugned label, bearing the numerals "999". Such an injunction has been granted by the District Judge, Vadodara.

8. A certified copy of a compromise application under Order 23 Rule 3 C.P.C. made before the learned District Judge, Vadodara, has been shown by Mr. Trivedi. Paras 1 and 2 of the said application read as follows :

(i) The defendant agrees to the right and the claims of the plaintiff in respect of the label, which is on record as mark 4/1, and the defendant agrees not to use any identical with and/or deceptively similar trade mark label of the plaintiff.

(ii) The defendants agree that, let the decree of permanent injunction may be passed, restraining the defendants from using the trade mark label 4/1 and/or any other identical with or deceptively similar trade mark label of the plaintiff, enabling passing off and/or any confusingly label as of the plaintiff. In this court two labels have been filed. One is at Annexure "A" which is "Hansam 555", and the other is at Annexure "B" which is "KIWI 999".

Mr. Trivedi, Counsel appearing for the defendants accepts that mark 4/1 in Suit No. 4 of 1993, before the District Judge, Vadodara, was the label which is Annexure "A" in these proceedings. He also says that mark 4/2 was the label which is at Annexure "B" in the proceedings before me.

Annexure "A" is a pouch bearing the word "Hansam 555", and Annexure "B" bearing the words "Kiwi brand" and "999". Both these pouches have red, yellow and gold colour, but they are not identical. There is no Hansom Carriage on Annexure "A" whereas Annexure "B" has the bird "KIWI" upon it.

What the defendants seem to have agreed in the proceedings at Vadodara, is not to use identical or deceptively similar pouches. I do not see any identity or deceptive similarity in the two pouches before me, and I think that in the facts and circumstances of this case, the plaintiff is entitled to injunction, restraining the defendants from holding out any threats against the plaintiff.

I, therefore, issue an injunction, directing the defendants not to interfere with the business of the plaintiff, nor to interfere with the mark "KIWI", along with the numeral "999". I note that in the proceedings in the Court of the learned District Judge, Vadodara, the plaintiff had agreed not to use a bouch bearing the words "HANSOM and 555" upon it, also that the plaintiff will not use in a colourable imitation thereof either. In my view, the use of the Kiwi bird with the word "KIWI" and numeral 999 is sufficient to distinguish the two pouches. However, if the plaintiff has been in breach of any injunction issued by any court, the defendants would be free to take such steps, as they may be advised against the plaintiff. Suit to come up for framing of issues on 21.7.1994. Injunction granted.