TATIA, J. - (1.) THIS appeal is against the order dated 18. 6. 2001 passed by the learned Additional District Judge No. 2, Jodhpur in S. B. Civil Misc. Appeal No. 869/2001 by which the trial Court dismissed the injunction application under Order 39 Rules 1 and 2 of the Code of Civil Procedure filed by the plaintiff-appellant.
(2.) BRIEF facts of the case are that the plaintiff-M/s Perry Bottling Company filed the suit for injunction against the defendants with the prayer that the plaintiff is holder of the trade mark and the defendants are, to deceive customers, using a mark which is a copy of the registered trade mark of the plaintiff. The defendants, by using trade mark of the plaintiff, are selling product of inferior quality. According to the plaint allegations, the action of the defendants is offence under Secs. 77, 78 and 79 of the Trade and Merchandise Marks Act, 1958 (hereinafter referred to as the "act of 1958") and Sections 63, 64, 65 and 67 of the Copy Rights Act and Secs. 420, 120-B, I. P. C. , for which a complaint has been lodged by the plaintiff against the defendants. According to the plaintiff, anticipatory bail was rejected by the learned Sessions Judge No. 2, Jodhpur on 11. 7. 2001. The plaintiff also placed on the record the photographs of the bottle showing the trade mark of the plaintiff's product which reads as under:- " Perry's® FRUIT BEEr Qzwv ch;j" The plaintiff also submitted an application for grant of temporary injunction under Order 39 Rule 1 and 2 read with section 151 of the Code of Civil Procedure in the suit. The defendants submitted reply to the injunction application and contested the case of the plaintiff-appellant by submitting that the plaintiff is selling his product by putting mark of "perry's® Fruit Beer Qzwv ch;j" as registered trade mark of the plaintiff whereas the defendants are selling their product having mark "hello Fruit Beer". According to the defendants, defendant No. 1 also got the registration of the above trade mark under the Act of 1958. It was also submitted by the defendants that the plaintiff in his plaint submitted that the plaintiff is doing business since 1980 but he got the registration of the mark only on 8. 10. 1990. Therefore, it cannot be believed that the plaintiff is owner of the product since last 20 years. The defendants further submitted that "fruit Beer" is a flavour and a product based upon flavour is permissible item under the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as "the Act of 1954") under the heading of "fruit and Cold Drinks". The ingredients of this product are also given in the above Act. It was also submitted by the defendants that even according to the plaintiff himself, "perry's" word is registered and the plaintiff is using the work "perry" in Hindi and English for his product whereas the defendants are using words, "hello Fruit Beer" for their product. According to the defendants the defendants are using not only the above trade mark but also there is clear mention of name of the company. The containers, bottles, covers, seal etc. are different of the defendants, therefore, there cannot be question of any misrepresentation by the defendants. The defendants denied that the plaintiff started the name of Fruit Beer in the year 1983. After hearing the arguments, the trial court, in the impugned order held that the trade mark of the plaintiff is a registered one but observed that as per the certificate issued in favour of the plaintiff, the "perry's Fruit Beer" was got registered by the plaintiff and it was renewed as it is, therefore, it cannot be said that only "fruit Beer" is a registered mark of the plaintiff. It is also taken note by the court below that the plaintiff produced cash memos wherein though in the list of products "fruit Beer" has been shown as product of plaintiff firm but under this there is a monogram of "perry's® Fruit Beer", therefore, it is not proved that "fruit Beer" is a registered trade mark of the plaintiff. The trial court also found that there is a dissimilarity in the mark of the plaintiff and the mark used by the defendants. The trial court also observed that in the present matter, Fruit Beer, is a type of beer which contains no alcohol and it can be produced by the firm or company Perry or even any other one. No one can claim exclusive right over the name "fruit Beer", therefore, the trial court found that there is no prima facie case in favour of the plaintiff and also found that no irreparable injury will be caused to the plaintiff if the injunction is not granted and balance of convenience does not lie in favour of the plaintiff. Hence injunction was refused by the trial court against which the plaintiff-appellant preferred this appeal. The learned counsel for the appellant has vehemently submitted that the trial court failed to appreciate the facts of the case. According to the learned counsel for the appellant, the plaintiff is having the trade in the name of M/s. Perry Bottling Co. The Perry is name of plaintiff's firm. The plaintiff is engaged in manufacturing of several products in which the main product is non-alcoholic Fruit Beer which falls in the category of edibles as per the provisions of the Act of 1954. The name "fruit Beer" was invented by the plaintiff. According to the learned counsel for the appellants, the "fruit Beer" is not a word identifying a particular commodity but it identifies the only product of the plaintiff which was also invented by the plaintiff only. The trial court misunderstood because of use of word "perry's" which is name of plaintiff's firm with the trade mark of the plaintiff in the label and came to a wrong conclusion that "perry's® Fruit Beer Qzwv ch;j" is integral and complete combination is registered trade mark. By using "hello" word instead of "perry's, the defendants can also use the "fruit Beer" for their product as trade mark. It is also submitted by the learned counsel for the appellant that the judgment of the Hon'ble Apex Court delivered in the case of M/s. S. M. Dyethem Ltd. vs. M/s. Cadbury (India) Ltd. relied upon by the trial court has been specifically overruled in the case of Cadila Health Care Ltd. vs. Cadila Pharmaceuticals Ltd. , therefore, also order of the trial court is based upon an overruled judgment.
(3.) THE learned counsel for the respondents submitted that the Fruit Beer is a description of a good, therefore, no one can claim any exclusive right to use words "fruit Beer". It is also submitted by the learned counsel for the respondents that there is a lot of difference between the two marks and there cannot arise any question of misleading of the consumers using the product. In para 14 of the reply, the defendants submitted that the plaintiff has got only registered mark of "perry" and there is no registration of Fruit Beer. According to the defendants, if Fruit Beer will be registered then no one will be registered then no one will be entitled to use the words "fruit" as well as "beer" which is not permissible under the law to be registered. Both the counsels relied upon the several judgments of the Hon'ble Supreme Court as well as of various High Courts but before proceeding with all these, it is relevant to examine the provisions of the Act of 1958. The procedure for registration of trade mark is given in the above Act of 1958 and Chapter II deals with the procedure for registration. Section 9 of the Act of 1958 provides requisites for registration in Parts A and B of the register, whereas Section 11 provides prohibition of registration of certain marks. Section 13 provides prohibition of registration of names of chemical elements. Chapter III provides the procedure for and duration of registration whereas Chapter IV provides effect of registration. In Chapter IV, Section 27 provides that no person shall be entitled to institute any proceeding to prevent, or to recover damages for, the infringement of an unregistered trade mark whereas sub-section (2) of Section 27 provides that nothing in this Act shall be deemed to affect rights of action against any person for passing off goods as the goods of another person or the remedies in respect thereof. Section 28 confers the rights which are available due to the registration of the mark which provides exclusive right to use of the trade mark by the registered proprietor of the trade mark. Section 29 prescribed contingencies of infringement of trade mark. Section 31 shows that the registration is to be treated as prima facie evidence of validity and Chapter VII deals with rectification and correction of the register whereas Chapter VIII deals with certification of trade mark. Chapter X deals with offences, penalties and procedure. ;