PIDILITE INDUSTRIES PRIVATE LIMITED Vs. MITTEES CORPORATION

JUDGEMENT

(1.) Fevicol' in respect of Synthetic Resin Adhesives, is the trade mark of the plaintiff. "Trevicol' is the trade mark under which defendant is marketing the same goods. The plaintiff by I.A. 4226/87 seeks a temporary injunction restraining the defendant from use of the trade mark 'Trevicol' and from using a get up identical or deceptively similar to that used by the plaintiff on containers used for selling adhesives.

(2.) The plaintiff claims to be the largest manufacturer of Synthetic Resin Adhesive in the country with annual sales of above Rs. 25 crores. The average amount spent on advertisement is claimed to be to the tune of more than Rs. 25 lakhs annually. The case of the plaintiff, as set up in the plaint, is that its trade mark 'Fevicol' is registered under the Trade and Merchandise Marks Act since 2nd March, 1960 and has been continuously renewed and is valid and subsisting. The plaintiff has been marketing adhesives manufactured by it in plastic and tin containers with highly specific eye catching designs and colours. The plastic containers of the plaintiff have particular shape and comes in two colours white and blue and both have an identical pattern i.e. within a box made on the front and back of each container, the main features of which are word 'Pidilite' within a box on the top, a device of two elephants pulling apart a sphere below it and the words 'Fevicol' in bold letters below it, followed by the word Synthetic Resin Adhesive. Apart from plastic container it also claims to have tin containers with distinct dark blue background with a distinctive yellow band in the middle. The registered trade mark 'Fevicol' is written in the said yellow band with a distinct red colour scheme. The entire tin having the colour scheme of blue and yellow with big red lettering and small white lettering containing instructions has a distinctive and unique look. It is claimed that this distinctive get up of the plaintiff containers has been in use for last more than 10 years . It also claims to have a copyright registration of the entire get up of the tin container. It is further claimed that the plaintiff and .their purchasers have extensively used the trade mark 'Fevicol' which has acquired an enviable reputation in the market. The name 'Fevicol' has become a household word in relation to synthetic resin adhesives and other allied products. That because of distinctive get up used by the plaintiff on the containers of Fevicol, the goods of the plaintiff have also become associated with its distinctive get up and many persons particularly illiterate carpenters who often purchase this adhesive for use in the wood work. often purchase it on the basis of the name and the get up alone. The plaintiff claims exclusive use of the trade mark 'Fevicol' and its distinct get up on its containers. The plaintiff is aggrieved by use of the trade mark ' 'Trevicol' by the defendant and by use of plastic and tin containers which have an identical get up as that of the plaintiff. It says that the name 'Trevicol' is deceptively similar to plaintiff's registered trade mark 'Fevicol' both visually and phonetically and that use of almost identical get up as that of the plaintiff on the containers of adhesives being manufactured and sold by the defendant shows that intention of the defendant is to trade upon the name and goodwill extensively built by the plaintiff. The plaintiff says that the use of almost identical trade mark and almost identical get up is bound to create confusion in the market and in the minds of unwary purchasers many of whom are illiterate carpenters.

(3.) In the plaint certain earlier instances when some other traders tried to infringe the plaintiffs trade mark and pass of their goods as those of the plaintiff have been given. The instance given are in respect of trade marks Divicol, Devicol, Nevicol, Fixocol, Avicol, Firmcol and Hevicol' and it is claimed that when it moved applications against the manufacturers trading under the aforesaid trade marks they were found guilty by courts and con- victed and the manufacturers gave undertakings to the court not to manufacture and market their adhesives under the infringing trade marks. In the suit besides claiming permanent injunction restraining the defendant from manufacturing selling or in any way trading in synthetic resin adhesive under the trade mark "Trevicol' it has also claimed injunction restraining from selling or trading in packages with the get up which is being used by the defendant in their containers. It has also asked for other relief such as rendition of accounts.