RAJES KUMAR, J. - (1.) THE present appeal is being directed against the order dated 31.5.2001 passed by the District Judge, Kanpur Dehat on the application under Order 39 Rules 1 and 2 of C.P.C. in Original Suit No. 1 of 2000, by which, an ex -parte injunction order dated 18.11.2000 has been confirmed and made absolute, till the disposal of Suit. The interim injunction granted on 18.11.2000 was in terms of prayer made in application, i.e., defendant, their servants, agents, Stockiest, Retailer, Distributors and representatives were restrained from manufacturing, selling, offering for sale, stocking, advertising directly or indirectly dealing in washing soaps and detergent powder under the impugned Trade Mark 'Pooja No. 1 Ghari' or any other Trade Mark/Marks under the artistic plastic pouches Annexed as Annexure 'B' or using any Trade Mark/Marks/or plastic Pouches as Annexed as Annexure -1 to the plaint. The defendants were further restrained from doing any other things as is likely to lead of passing off its good and business as the goods and business of the plaintiff.
(2.) THE appellant is Proprietorship concern and the appellant is doing its business of manufacturing and marketing of Detergent Powder and Detergent Cake in the name of 'Pooja No. 1 Ghari' at Katni in Madhya Pradesh. M/s. Kanpur Trading Company, plaintiff -respondent filed a Suit before the District Judge, Kanpur Dehat claiming relief of injunction against the defendant from manufacturing, selling etc., of washing soap and Detergent Powder and for rendition of accounts and for other consequential relief on the ground that the word 'Ghari' is their registered trade mark and the appellant is using the word 'Pooja No. 1 Ghari' in order to deceive the customer their good will of the name 'Ghari' and as such, there was a infringement of trade mark and copy right. It has also been alleged that the pouches of the plaintiff -respondent and appellant -defendant were also similar. Annexure -A at page No. 27 is the plaintiffs pouch and at page 28 Annexure -B is the defendant's pouch of the affidavit filed alongwith the present appeal. The learned District Judge in its impugned order held as follows: - 'As already pointed out the head of the trade mark is 'Ghari'. It the defendant No. 2 made certain addition or variation on the other part of deception or confusion. In the instant case, we are concerned with the sale of detergent powder and detergent cakes both in the urban areas and country side. These soaps are sold to the customer is not supposed to go with scanner or microscope to discern the variations. It is likelihood of deception or confusion which is material. A visual inspection of the offending label/trade mark clearly points out that it is similar to that of the plaintiff. The conclusion is in escapable that the use of trade mark by the defendant is apt to cause confusion. A customer does not keep in mind the actual design. Colour or other things of a particular design. If these two labels are put across, the man of a street bound to confuse. He will not be able to discriminate between the two labels and proprietors thereof. Therefore, in my view applying the principles laid down in case laws, referred above, the plaintiff have injunction. The balance of convenience is also in favour of plaintiffs, as the defendants have only recently adopted the infringement trade mark 'Pooja No. 1 Ghari' for their products namely 'Detergent Powder' alongwith a deceptively similar plastic pouch, annexed as Annexure -B to the plaint, which is a blatant infringement of the common law and statutory rights of the plaintiffs. Further more, the injury which could be occasioned by the illegal trade activities of the defendants to the plaintiffs reputation and good will would been enormous and incapable of an accurate assessment in monetary terms.'
(3.) HEARD Shri Vikram Nath learned Counsel for the appellant and Shri Ashok Khare, learned Senior Advocate assisted by Shri J.G. Upadhayay.;