Kerala High Court
Thanseer B vs Deepu on 2 June, 2025
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE M.A.ABDUL HAKHIM
MONDAY, THE 2ND DAY OF JUNE 2025 / 12TH JYAISHTA, 1947
FAO NO. 14 OF 2025
AGAINST THE ORDER DATED 18.11.2024 IN I.A NO.1/2024 IN OS NO.8 OF
2024 OF III ADDITIONAL DISTRICT COURT, THIRUVANANTHAPURAM
APPELLANTS/PETITIONERS/PLAINTIFFS:
1 THANSEER B
AGED 34 YEARS
S/O BASHEER, PROPRIETOR, COOL HILLS,
1/653-B, PODIKONAM ROAD, NANNATTUKAVU, POTHENCODE,
THIRUVANANTHAPURAM, PIN - 695584
2 ANIL KUMAR S
AGED 58 YEARS
S/O SREEDHARAN NAIR, PROPRIETOR, SABARI PLASTICS,
SHED NO 7 MINI INDUSTRIAL ESTATE UZHAMALAKKAL,
NEDUMANGADU TRIVANDRUM, PIN - 695547
3 VARUN A P
AGED 29 YEARS
S/O ANIL KUMAR S, DESIGNER, SABARI PLASTICS,
SHED NO 7 MINI INDUSTRIAL ESTATE UZHAMALAKKAL,
NEDUMANGADU TRIVANDRUM, PIN - 695547
BY ADVS.
SRI.P.RAHUL
SMT.BINDU S.
SMT.ABHINA L.
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RESPONDENT/COUNTER PETITIONER/DEFENDANT:
DEEPU
AGED 39 YEARS
S/O SURENDRAN NAIR,PROPRIETOR, KIVI FRESH, DEEPU VILASOM,
KUTTIYANI,PANTHALACODE P.O, VATTAPPARA, NEDUMANGAD
THIRUVANANTHAPURAM, PIN - 695028
THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON
20.05.2025, THE COURT ON 02.06.2025THE SAME DAY DELIVERED THE FOLLOWING:
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JUDGMENT
(FAO No.14 of 2025)
Dated this the 02nd day of June, 2025
1. Appellants are the plaintiffs in O.S.No.8/2024 on the files of the
Third Additional District Court, Thiruvananthapuram. The said
suit was for injunction and other reliefs filed under Sections 134
&135 of the Trade Mark Act, 1999, Sections 22 & 23 of the
Designs Act, 2000 and Sections 51 & 62 of the Indian Copyright
Act, 1957.
2. The plaintiffs filed I.A.No.1/2024 praying for an interim injunction
restraining the respondent/defendant or anyone claiming under
him from using the design of the bottle/trademark/logo similar to
one owned by the plaintiff. The Trial Court dismissed
I.A.No.1/2024 as per order dated 18.11.2024 and the said order
is impugned in this Appeal. Even though notice was served on
the respondent, the respondent has not chosen to appear
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before this Court.
3. As per the allegation in I.A.No.1/2024, the first petitioner is the
proprietor of the business of manufacturing and selling fruit juice
under the brand name 'RINBOO'; that the second petitioner is
the proprietor of the business Sabari Plastics engaged in
designing and moulding plastic bottles and containers and the
third petitioner is the designer of the second petitioner. As per
the requirement of the first petitioner with the second petitioner
the third petitioner designed a bottle for the first petitioner in a
unique shape and the same was accepted by the first petitioner
and the same was introduced in the market on 20.01.2019. The
design rights as well as the copyright of the bottle design rests
with the petitioner. The unique bottle has become the
identification of the product of the petitioner "RINBOO" and is
very well known among his peers and general public at large
and it became well known in the society. The petitioners
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launched the said design of bottle after spending enormous
amount for advertisement and social media campaign and the
petitioners have spent time, money and energy for designing the
said bottle. The respondent is a manufacturer of juice under the
trade name 'KIVI'. The respondent also styled the brand name
'KIVI' for his fruit juice in a visually similar manner and bottled it
in copying the design of the bottle cylindrical bottle with ribs all
over its body created by the petitioner creating confusion among
the public. On these allegations, the petitioners sought
temporary injunction to restrain the respondent from using the
said unique design for the bottles of his fruit juice.
4. The defendant filed a Counter Affidavit to the I.A. contending,
inter alia, that the trademark of the respondent has distinctive
features to identify the products manufactured by him. A
comparison of trade name of both the products and the packing
would show that there is absolutely no possibility of confusion
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among the public in and identifying the product of the first
petitioner and the respondent. The names of the two products
are entirely different. There is no positive similarity between the
trademark used by the first petitioner and the respondent. The
petitioners cannot allege that the trademarks of the first
petitioner and the respondent are similar merely for the reason
that the bottle in which the product is packed is having some
similarity. The design of the bottle of the petitioners is not unique
and not a new or original design. Cylindrical shaped bottle with
ribs is a common design seen in many plastic bottles. Similarly
designed bottles were available in the market for decades. The
design of the bottle containing fruit drink 'RINBOO' is available
in the market prior to 20.01.2019 and it is a common design of
many plastic bottles used in the industry.
5. I heard the learned counsel for the appellant Sri. Rahul P.
6. The learned counsel for the appellant contended that the
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petitioners are much aggrieved by the act of the respondent in
copying the design of the bottle designed by the petitioners, by
the respondent and using the same for packing his product.
Exts.A2 to A5 would prove that the design of the bottle was
exclusively designed by the third petitioner who is working under
the second petitioner, only for the first petitioner. If temporary
injunction sought for is not granted, the very purpose for which
the suit is filed would be defeated. Learned Counsel cited the
decision of this Court in Leena T v. Seematti [2020 (3) KLT 668]
in which this Court held that an order of injunction can be denied
in trademark matters only in exceptional circumstances. The
learned counsel cited the decision of the Hon'ble Supreme
Court in National Bell Co. and Gupta Industrial Corporation
v. Metal Goods Mfg. Co. Pvt. Ltd. & Anr. [(1970) 3 SCC 665]
to substantiate the point that the plea of common use must fail
when it is failed to establish that use by other persons is not
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substantial. The learned counsel cited the decision of the
Bombay High Court in M/s. D.R. Cosmetics Pvt. Ltd & Anr.
v. M/s. I.R. Industries [2008 Supreme (BOM) 30] to
substantiate the point that even if the plaintiff has not filed cases
against all the persons who are infringing his trademark right,
action against a single person for trademark infringement is
maintainable as the existence of more than one imitation cannot
justify what is wrong. Even if the unique design of the bottle
invented by the petitioners is used by several persons it will not
justify the illegal act on the part of the respondent. The learned
counsel further cited the decision of the Delhi High Court in Shri.
Pankaj Goel v. Dabur India Ltd [2008 Supreme Del 1313] to
substantiate the point that the petitioners are not expected to
sue all small types of infringers who may not be affecting the
business of the 1st petitioner. It is in evidence that the 1st
petitioner started the business in the year 2019 and the
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respondent started his business much later. The learned
counsel contended that he has got every chance in succeeding
the suit if the respondent is allowed to use the unique design
invented by the petitioners for the bottles of the fruit drink of the
1st petitioner during the pendency of the suit the very purpose
for which the suit is filed will be defeated. In such case, the
petitioners will be put to irreparable loss and injury. The Learned
Counsel concluded by submitting that a prima facie case and
balance of convenience are in favour of the petitioners to get an
order of temporary injunction as prayed for.
7. I have considered the contentions.
8. Admittedly, the first petitioner and the respondent have been
using different trademarks for their fruit juice. First petitioner has
been using the trade name 'RINBOO' whereas the respondent
has been using the trade name 'KIVI'. The 1st petitioner has
trademark registration for his trademark and there is no violation
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from the side of the respondent with respect to the trademark.
The claim of the petitioners is that the first petitioner has been
marketing his product in a unique cylindrical shaped bottle with
ribs all over its body designed by the third petitioner. The
contention of the respondent is that the bottles in such design
are very much available in the market and several persons have
been using the very same design for their bottles. The Trial
Court dismissed the Application for temporary injunction holding
that there is nothing before the Court to conclude that the design
of the bottle manufactured by the petitioners is in the exclusive
use of the petitioners. On going through the photographs which
are exhibited before the Trial Court made available before me,
it is clear that both the first petitioner and the respondent have
been using bottles having the same shape and design. Even
though the petitioners claim that the said design of the bottle is
invented by the third petitioner who was in employment of the
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second petitioner at the request of the petitioner, there is no
evidence before the Court to conclude prima facie that it is the
third petitioner who invented the said design for the bottles of
the first petitioner. The learned counsel for the appellant relied
on Ext.A4 Purchase Order and contended that it is a new design
invented by the second and third petitioners. Ext.A4 only says
that the new design provided by the second petitioner is
acceptable to the first petitioner, placing order for the bottles. It
does not in any way prove that the design of the bottle is
invented by the third petitioner at the request of the 1st petitioner.
Even assuming that the said new design is provided by the
second and third petitioners to the 1st petitioner, it is not clear
whether they themselves have invented a new design or they
simply imitated one of the several designs available in the
market. The respondent has a specific case that the design of
the bottle used by the first petitioner and the defendant are
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common in usage in the industry and there are several fruit
drinks packed in such bottles prior to the business of the first
petitioner. The respondent has produced Exhibits B3 to B8
photographs in support of this contention. The impugned order
would show that the petitioners themselves have filed
I.A.No5/2024 impleaded seven other manufacturers as
defendants in the suit. These are all matters which are to be
proved by taking evidence in the trial of the suit by the
petitioners. Now there is no evidence to hold prima facie that the
design of the bottle was invented by the third petitioner for the
first petitioner and it exclusively belonged to the first petitioner.
Admittedly, the first petitioner has registered his trademark
'RINBOO' alone and he has not registered the design of the
bottle. If he had registered the design of the bottle he could have
claimed exclusive use for the same. Section 22 of the Design
Act deals with piracy of registered designs alone. The decision
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of this Court in Beena T. (supra) does not lay down an absolute
proposition. The parameters of granting injunction are to be
considered while considering an application for injunction.
Considering the prima facie case, balance of convenience and
irreparable injury of the parties, I am of the view that the
petitioners are not entitled to get temporary injunction as sought
for. The Trial Court rightly dismissed the Application for
temporary injunction.
9. Accordingly, this appeal is dismissed making it clear that the
Trial Court shall dispose of the suit untrammeled by the
observations contained in the impugned order and this order
and that all legal questions involved are left open to be
considered in the suit.
Sd/-
M.A.ABDUL HAKHIM
JUDGE
Jma/shg
