K.S.Tiwana, J. - (1.) This appeal has been directed against the temporary injunction granted by the learned Additional District Judge, Ludhiana, restraining the appellant-defendants from infringing the copyright number A-18463-77 in respect of "MMB" whisky and also selling their product, that is whisky, under the label "BMB" through their agents, servants, stockists or dealers in any manner whatsoever.
(2.) The respondent-plaintiff Mohan Meakin Breweries Limited, which has a registered office at Solan Brewery in Himachal Pradesh, filed a suit for permanent injunction against the defendant for the infringement of their Copyright and passing off goods. The facts stated in the case by the plaintiff are that the plaintiff-company are leading Brewers and Distillers of repute and are selling whisky under various brands one of which is "MMB". This brand of whisky was introduced in the Republic of India by the plaintiff in January, 1975 and is generally sold in bottles of "750 ml", "375 ml" and "180 ml" with distinctive labels thereon. The salient features of the said labels of the company are the House and general mark printed in black colour at the top, letters "MMB" appearing in bold type in black lettering super-imposed in red lettering, and the word "whisky" in bold red lettering beneath the said "MMB" letterings and the name of the company appears at the bottom. The plaintiff-company is the registered owner of the Copyright for the Artistic designs of its "MMB" whisky labels, which have been registered under the Copyright Act. This whisky is sold and offered for sale by the plaintiff throughout the country. By reason of long continuous, extensive and exclusive use of the said "MMB" labels and the get-up of the whisky in connection with or in relation to whisky, and advertisement and publicity, the said "MMB" whisky labels and the get-up etc. have become the exclusive property of the plaintiff-company. The plaintiff has made a lot of publicity after spending huge amounts of money on it and the sales from February, 1975 to September 1977, have amounted to 5,20,83,890. In or about August, 1977 the plaintiff came to know that the defendants-appellants have introduced into the Market whisky under the trade mark "BMB" whisky in labels which are a slavish copy of the plaintiff- company's "MMB" whisky labels in all respects. The appellants are also selling the whisky in the three sizes of bottles as the plaintiff. There is a phonetic and visual similarity in the letters "MMB" and "BMB" and the appellants have slavishly copied the design, lay-out, get-up and colour-scheme of the plaintiff-company's whisky labels under the trade mark "MMB", which is an infringement of the rights of the plaintiff-company. The case of the plaintiff is that the defendants have deliberately and fraudulently adopted "BMB" whisky labels with the design, get-up, lay-out and colour-scheme in order to cause confusion and deception in the mind of the trade and the public and in order to pass-off their whisky as the genuine product of the plaintiff-company. This phonetic and visual similarity of the labels is not a matter of chance but has been done with a deliberate intention to deceive the ultimate purchasers and to earn profits, to Which the defendants are not entitled and this similarity has enabled and will enable the defendants to pass off the whisky of their manufacture as the whisky of the plaintiff-company.
(3.) On 1st of September, 1977, the plaintiff got purchased bottles of "BMB" whisky of the defendants from Natha Ram and Company, G.T. Road, Ludhiana and Vikramjit Singh, L-2 licences, Hari Singh Nalwe Road, Ludhiana. On the basis of these facts, the plaintiff-company filed the aforesaid suit with a prayer to permanently restrain the defendants from manufacturing and selling the said whisky.;