N.D.Ojha, J. - (1.) This is a plaintiff's appeal against an order passed by the Additional District Judge, Bareilly, dismissing an application for temporary injunction. The appellant filed a suit for: (1) Prohibitory injunction restraining the defendants) their servants agents, distributors, salesman, broker and all other persons on their behalf from manufacturing, advertising, selling or offering for sale and/or infringing or attempting to infringe and/or passing off or attempting to pass off match boxes not of the plaintiff's manufacture as those of the plaintiff's manufacture by the use of the offending infringing label 'Coley' or any other lebal of a similar design and appearance as that of the plaintiff's 'Tekka' label. (ii) A decree for mandatory injunction directing the defendants to deliver to the plaintiffs the entire stock of the offending label, loose labels, dies, blocks, wrappers, printed matters etc. under their control or under the control of their manager, agents, distributors, salesmen, servants, brokers or other persons on their behalf. (iii) Accounts; and (iv) damages.
(2.) The case of the appellant as set out in the plaint in brief was that it dealt with the manufacture and sale of safety match boxes for the last 45 years under a registered trade mark and was proprietor of 'Tekka' label, that the said label had a distinctive get-up design, lay out and colour scheme, that it had built up value-able good will and reputation and had extensive business throughout India. The appellant's case further was that its label was known to the public and trade commonly as 'Tekka', 'EKKA', 'Tash Marka' etc., that the defendants were either manufacturing and offering for sale or selling matches with 'Coley' label to different parties in India, that the 'Coley' label was similar in design and get-up as the 'Tekka' label of the appellant and that the defendants were not only infringing his trade mark but were also passing off their goods as though they were the goods manufactured by the appellant, and thereby causing great loss to it.
(3.) The appellant also filed an application for temporary injunction in terms similar to the relief (i) referred to above and an ex parte temporary injunction was granted on April 26, 1972. On receipt of the summons issued to the defendants' two sets of objections were filed one by defendants 6 and 7 and the other by defendant No. 12. The objection of defendants 6 and 7 inter alia was that these defendants adopted 'Coley' trade mark and impugned label with its get-up design and lay out in or about April 1964 to the knowledge of the plaintiff who filed an objection against the defendants' trade mark being registered but the said objection was dismissed by the Assistant Registrar on December 29, 1970 and the defendants' application for registration was allowed. Their case further was that in view of the fact that they were carrying on trade under a registered trade mark and that since their label was not similar to that of the plaintiff they were neither guilty of infringement of plaintiff's trade mark nor of passing off. The application was also opposed on the ground that they had made huge investment for carrying on their trade and the balance of convenience lay in favour of refusing the injunction prayed for and that if an injunction was issued they would be put to irreparable loss whereas the plaintiff would be put to no such loss if the injunction was refused inasmuch as they had already sued for accounting and damages and would get a decree for the same if they succeed in proving their case.;