Ashim Kumar Banerjee, J. - (1.) The instant suit was filed by the plaintiff against the defendants inter alia alleging infringement of trademark and copyright. The present application was made inter alia praying for injunction restraining the respondents from using the design of the labels being Annexures-A1 and A2 of the petition. When the application was initially moved this Court passed an order in terms of prayers (a) and (b) of the petition. Such order was passed on February 4, 2002 and is still subsisting. Now the matter came up for hearing before me and was heard by me on the abovementioned date.
(2.) The plaintiff's the registered trademark and copyright holder of trademark and copyright of Pataka Biri as would appear from the certificate of registration annexed to the petition. The defendants were also the manufacturer of biri which was being sold at all material times with the mark Sahensha biri. Of late in 2001 the defendants started manufacturing and sale of biri in the name of Sagar Special Biri which was being sold with the rapper designed similarly with the registered mark of the plaintiff. Both the marks as appearing in the different labels were annexed to the pleadings, I have compared those labels and I am of the view that the label of the defendants were designed in such a way that an illiterate person who does not know how to read might be deceived by the label of the defendants that is to say an illiterate person might purchase the product of the defendants thinking it to be the products of the plaintiff. It is however made clear that there is an little chance for a literate person to mix up the labels at the time of purchase.
(3.) Mr. Ranjan Bachawat, learned Counsel appearing in support of this application, contended that class of user of the product are mostly illiterate and half literate persons. According to Mr. Bachawat that there is every likelihood for confusion being raised in the mind of the consumers while purchasing the product of the plaintiff or the defendants. Mr. Bachawat also, contended that while considering the fact whether there had been any infringement or attempt of infringement of the design one would have to consider the class of persons consuming that particular product as well as whether there was any attempt made by the defendant to copy the mark of the plaintiff without having any sufficient explanation for the same. In support of his contention Mr. Bachawat cited the following cases : (i) Kabiraj Pandit Durgadutta Sharma v. Nabaratna Pharmaceuticals Laboratories; (ii) Anglo Dutch Paint, Colour and Varnish Works Pvt. Ltd. v. Indian Trading House; - (iii) AIR 1987 Delhi, page 312, Vrajlal Madanlal v. N. S. Biri; (iv) 1990 RPC, page 341, Reckitt & Colman Products Ltd. v. Borden Inc. and Ors.; (v) Prem Singh v. Ceeam Auto Industries; (vi) 1998 PTC, page 47, Aktiebolaget Volvo v. Volvo Steels Ltd.; (vii) 1999 PTC, page 757, Rotomac Pens Ltd. v. Milap Chand & Co.; (viii) 2001 PTC, page 300 (SC), Cadila Health Care Ltd. v. Cadila Pharmaceuticals Ltd.;