TMI Blog1988 (5) TMI 368X X X X Extracts X X X X X X X X Extracts X X X X ..... case of the plaintiff as set up in the plaint, is that the plaintiff is one of the largest manufacturers of art and stationery materials and is exclusively marketing the goods of its manufacture for the last 40 years and one of the famous products of the plaintiff is its Camlin Flora pencils which are highly distinctive and are manufactured and sold in distinctive and artistic cartons since the year 1977. The distinctive features of plaintiff's Flora pencils are stated to be a colour combination of white, pink and green. The rear portion of the pencil has got two strips of white and green next to each other respectively. The floral design comprises of array of pink flowers with green leaf each on white background The trade mark Camlin Flora of the plaintiff appears on the rear portion of the pencil. Each flower has got a characteristic look about it and the arrangement of the leaf with the flower is unique. The distinctive and essential feature of the plaintiff's Flora pencil carton is also an array of pink flowers each with a green leaf arranged in rows appearing on the thin strips of white colour background on the two sides of the front panel of the said pencil carton. O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tiff's trade mark Elora, phonetically as well as visually amounts to infringement of plaintiff's registered trade mark. The plaintiff has got an exclusive right under the law to the use of Camlin Flora pencils, the trade mark Flora and the cartons pertaining thereto and the floral pattern of the pencils. The plaintiff came to know in the month of April, 1935 about the unlawful adoption and use by the defendants of the trade mark Flore in relation to the pencils and despite various notices the defendants have not stopped the use. The plaintiff has suffered losses of the illegal trade activities of the defendants. (4) The defendants are contesting the suit. The case of defendants is that the plaintiff has no cause of action against them as the trade mark Camlin Flora of the plaintiff and Tiger Flore of the defendants are absolutely different and distinct and there is no similarity between the two trade marks. The cartons of the defendants are quite distinct and different from the cartons of the plaintiff. The defendant's carton is substantially of parrot green colour while that of the plaintiff is border green colour. The defendants' carton possesses monogram of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or deception. The plaintiff has no case at all much less a prima facie case. The balance of convenience is in favor of the defendant and the defendant would suffer irreparable loss and injury if they are restrained from using the impugned trade mark of -TIGER FLORE'. (7) I have heard the counsel for the parties and gone through the record. The registered mark of the plaintiff is 'Camlin Flora'. In the plaint much emphasis is laid that the defendants have without the permission consent or license of the plaintiff recently adopted pencils and cartons pertaining thereto which are identical to and/or deceptively similar with the plaintiff's Flora Pencils. According to the plaintiff the words Flora and Flore are deceptively similar. On the other hand, the defendant's version is that their trade mark Tiger Flore is absolutely different and distinct. There appears to be no similarity between the two marks if both these marks are considered and compared as a whole. Principles of law which are applicable and relevant for comparing the two marks stand settled by various pronouncements of the Supreme Court. The following are the guidelines:- 1. The mark used by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t has acquired a reputation. This is also evident from the fact that the plaintiff has a number of registered marks of pencils such as camlin Sterling, Camlin Eagle, Camlin Star, Camlin Regent, Camlin Sarita, Camlin Flora and Camlin Regal. (10) Looking from this angle too the contention of the plaintiff that 'Flora' and 'Flore' are deceptively similar has no force. The counsel for the plaintiff has relied upon a number of authorities in support of his contention i.e. [1970]1SCR290 . There-is no quarrel about the propositions of law decided in those authorities. In the matter of infringement of trade mark the decided cases are useful only so far as they lay down the principles of law. Each case has to be decided on its own facts. As already stated, I am of the considered opinion that the two marks are quite different and a person of average intelligence and imperfect recollection would not be confused or deceived by the two competing marks. (11) The plaintiff has also claimed interim injunction on the basis of similarity of cartons used by the plaintiff as well as by the defendant. I have given my thoughtful consideration on this point. I have carefully exami ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ora and of the defendant's pencil is Tiger Flore. small children are not likely to make distinction between the two. It is also well known that such pencils are sold in small shops to children. (13) A similar question came up before a Bench of this Court to which I was a party in deciding an interim application in R.F-A. No. 6/86. In similar circumstances it was observed as under :- NOW we turn to the internal products in the cartons, which are pencils. Here again we find that the pencils are very similar in appearance. There is a floral background consisting of little red flowers with green leaves. These are minute in size. There are five petals in National Flora flowers and four petals in the Camlin Flora flowers otherwise these flowers look very similar. The colour is also similar and there is green band at the end of the pencil. In short the two pencils look alike. It was stated before us that if a child is to buy a pencil out of these two, he is bound to be confused between the two pencils. It is submitted that normally such pencils are sold in small shops to children. It is, Therefore, suggested that we should pass an order restraining the manner in which the flor ..... X X X X Extracts X X X X X X X X Extracts X X X X
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