DIAMOND PUBLICATIONS Vs. HIND PUSTAK BHAWAN
HIGH COURT OF DELHI
HIND PUSTAK BHAWAN
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(1.)The plaintiffs respondents, the Hind Pustak Bhawan claiming to be the same as Hind Pustak Bhandar and Pustak Mahal a partnership concern; filed a suit on 23-12-1982 against the defendants appellants Diamond Publications for permanent injunction, the substance of which is that in April, 1976, the plaintiffs introduced in the market a book with a distinctive title "Rapidex" English Speaking GOWK published under Puitak Bhandar and Pustak Mahal. The plaintiffs got it registered in 1976 under the Copyright Act, 1957 and also got the trade mark RAPIDEX registered in December, 1977 under the Trade and Merchandize Marks Act, 1958. They spent 6 to 8 lakhs of rupees by way of advertisement and publicity over it and their total sales ranged between 73 to 83 lakhs during the last two years or so. They brought out its 50th Edition in the years 1982 and named it the 'Golden Jubilee Edition'. The same year the defendants Diamond Publications brought out in the market a rival book entitled "Diamond" English Speaking Coune. The plaintiffs complained that the defendants have infringed the trade mark and copyright of the plaintiffs. They have also copied the scheme of presentation of the text matter of the said publication of the plaintiffs. The Chapters prepared by the defendants in respect of their book are on the same pattern as that of the plaintiffs. The dishonest adoptation by the defendants is evident from the fact that the design, get-up, * layout and colour scheme has been copied by the defendants in material form. The style of writing words on the title page, the photographic panels and the slogans used by the plaintiffs have also been copied by the defendants. The back page of the infringing book carries an advertisement of the plaintiffs' publication 'Self-letter Drafting Course'. In their reply affidavit in this court, the plaintiffs respondents have further illustrated their case. They state that the similarities in the two publications are most pronounced in the cover page in the following respects: (1) white background, (2) the title on the top in black colour, (3) pattern, style and size of letters of the title, (4) the words Rapidex and Diamond set in inverted commas, (5) artistic short cuts in white and black, (6) spine, (7) the number of letters contained the words Rapidex and Diamond, in English seven and in Hindi five, (8) arrangement of title, (9) device of star, (10) vertical and horizontal stripes, and (11) pictures. Besides, the size and the thickness is the same having 416 pages. The defendants' book, therefore, is bound to cause confusion and deception and consequently the book of the defendants shall be passed off or is likely to be passed off as that of the plaintiffs' production considering the type of customers and the trade concerned with it. The defendants' profits are the plaintiffs' losses apart from the loss in reputation which cannot be ascertained in terms of money. However, the plaintiffs reserved their right to claim damages separately. They prayed that the defendants be restrained from publishing, printing, selling or offering for sale or otherwise dealing in the said book. They also applied for an ad interim injunction. It was granted ex parte on 23-12-1982.
(2.)The learned Addl. District Judge by his order dated 24-1-1983 held that the plaintiffs have a prima facic case and balance of convenience in their favour and if the injunction were not granted, they will suffer irreparable loss, and confirmed the exparte injunction. Hence, this appeal.
(3.)I have heard the learned counsel for the parties. There is no infringement of the trade mark. Some Chapters of the offending book are ^ shown to be similar to those of the plaintiffs' book but their earlier editions do not have the same material. There was, therefore, prima facie no case that any copyright has been infringed or any considerable piracy has occurred. The only question that was agitated and fell for determination is whe- ther the defendants' publication is designed or calculated to lead purchasers to believe that it is the publication of the plaintiffs. In other words, is there any likelieood of confusion or deception arising from get-up, specially the title ? And docs it amount to passing off ? The learned Judge below found prima facie that the two publications look similar and there is a positive dishonest act of passing off. But this conclusion does not seem to be correct.
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