TMI Blog1988 (10) TMI 278X X X X Extracts X X X X X X X X Extracts X X X X ..... in plastic and tin containers with highly specific eye catching designs and colours. The plastic containers of the plaintiff have particular shape and comes in two colours white and blue and both have an identical pattern i.e. within a box made on the front and back of each container, the main features of which are word 'Pidilite' within a box on the top, a device of two elephants pulling apart a sphere below it and the words 'Fevicol' in bold letters below it, followed by the word Synthetic Resin Adhesive. Apart from plastic container it also claims to have tin containers with distinct dark blue background with a distinctive yellow band in the middle. The registered trade mark 'Fevicol' is written in the said yellow band with a distinct red colour scheme. The entire tin having the colour scheme of blue and yellow with big red lettering and small white lettering containing instructions has a distinctive and unique look. It is claimed that this distinctive get up of the plaintiff containers has been in use for last more than 10 years . It also claims to have a copyright registration of the entire get up of the tin container. It is further claimed that the pla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s with the get up which is being used by the defendant in their containers. It has also asked for other relief such as rendition of accounts. (4) The defendant is contesting the suit. It claims that the two trade marks are different. There is no resemblance of any sort. Defendant says that it is manufacturing synthetic resin adhesive since 1985 under the trade mark 'Trevicol' and, as such, the suit is resisted on the ground of delay, latches and acquiescence. It further says that there is neither any deceptive similarity in two trade marks nor there is any deceptive similarity in the containers. It is claimed that plaintiff and defendants are having different boxes. On similar grounds the defendant has resisted the application of the plaintiff for grant of temporary injunction during the pendency of the suit. (5) At this stage only prima fade opinion is required to be formed on the question whether the two marks and containers are deceptively similar or not and is it likely to cause deception or not to an average customer and on which side the balance of convenience lies. Before I take up the comparison of the two marks or the similarity or dissimilarity on the contai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... our. The word 'Pidilite' in Fevicol and word 'Mitees' in Trevicol have been put in almost identical settings. Fevicol contains two elephants pulling apart a sphere. Although in 'trevicol' in place of elephants there are two ships, but if one looks it minutely then alone it is possible to find out that in Fevicol it is elephant and in Trevicol it is Ship, otherwise, the two containers give an impression that a similar object pulling apart each other has been used in both. This is in so far as the plastic containers with the background of white and light blue are concerned. Even in the tin containers the points of similarity, the colour scheme and the get up is almost identical. There is no manner of doubt that the containers in which the defendant is manufacturing and selling its goods are almost similar to the containers of the plaintiff. Learned counsel for the defendant has placed on record affidavits of certain dealers in support of his argument that there has been no deception or confusion. It is not possible to place reliance on the said affidavits. Firstly, it is common knowledge that it is not at all difficult to get such type of affidavits. Secondly, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng activity inspite of the filing of the said complaint, it was forced to tile the present suit in July, 1987. The defendant has not placed on record any advertisement having been made in the national dailies. It is not necessary that immediately after learning about the infringing activity the plaintiff should rush to court and seek an injunction. Reasonable time has to be given to the plaintiff to either exhaust other remedies or give an opportunity to the defendant to stop the alleged infringing activity. The plaintiff is in business since the year 1960 and prima facie has enormous sales of its product under the trade mark 'Fevicol'. The said trade mark was registered in the year 1960. The registration is continuing. On defendant's own showing its business under the trade mark 'Trevicol' is comparatively of recent origin. They started the use of its trade mark in the year 1985. In 1986 proceedings under Section 78 and 79 were taken and in July 1987 the present suit was filed. It cannot be said that the plaintiff acquiesced in the use of the trade mark 'Trevicol' by the defendant. It also cannot be said that in the facts and circumstances of this case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gs to vindicate its rights. It cannot be said that the plaintiff is giving groundless threats of legal proceedings to the defendant. Section 120(2) of the Trade Mark and Merchandise Marks Act provides that the provisions of Sub-section (1) of the said section will not apply if the registered proprietor of a trade mark or a registered user acting in pursuance of Sub-section (1) of Section 51, with due diligence, commences and prescribes an action against the person threatened for infringement of the trade mark. Accordingly, this application filed by the defendant is liable to be dismissed as misconceived. By the second application (1. A. 1990/88) filed by the defendant it seeks, under Order 2 Rules 2(3) of Code of Civil Procedure, leave to sue the plaintiff for damages on account of groundless and illegal threats. From the above discussion it follows that this application has also to meet the same fate as 1.A. 1989/88. (11) The expression of opinion in this order, while considering I.A. 4226/87, is only prima facie and will not affect the rights and contentions of the parties on the merits of the subject matter in suit. (12) For the reasons stated above I allow I.A. 4226/87, a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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