B. Rajendran, J.@mdashThese Original Side Appeals have been filed as against the order dated 08.03.2011 passed by the learned single Judge in Application Nos. 925 to 927 of 2010 in C.S. No. 753 of 2010.
2. The Appellants herein have filed the suit in C.S. No. 753 of 2010 praying for permanent injunction restraining the Respondents from infringing the trade marks of the Appellant and misuse of its certification marks and for other consequential reliefs. Pending suit, the Appellants have taken out O.A. Nos. 925 to 927 of 2010 praying for interim orders restraining the Respondents from committing infringement of registered trade marks of the Appellant; passing off the Respondent''s electrical products as that of the Appellant and against the misuse of trade secrets and confidential information, consumer data, product code, catalogue numbers etc., The Appellants have also filed Application No. 4677 of 2010 for appointment of an advocate commissioner to take inventory of infringing goods lying in the premises of the Respondent.
3. The case of the Appellant is that they are engaged in diverse business including power systems, industrial systems and consumer products. The first Respondent is the manufacturer of electrical products and act as job worker for the Appellant. The Appellant has been placing order with the first Respondent for manufacture and supply of electrical goods as per the requirements of the Appellant. The first Respondent exclusively manufactures the goods ordered by the Appellant in compliance with the export standards as required. The Appellant in turn exports the goods to their customer abroad. Such transaction is being carried on by the Appellant and the first Respondent since the year 2000. The Appellant has applied for and obtained international standards Registrations viz., CE, UL and CSA for exporting and marketing their products in United States of America, Canada and European Economic Community in order to ensure safety standards. The Appellant had paid huge testing fees to the authorities concerned to obtain the certifications. The proprietorship over the said certification marks and file numbers exclusively belonged to the Appellant. While so, the Appellant allowed the first Respondent to affix tradmark CG logo, UL and CSA certification/folio numbers. In the meantime, the first Respondent clandestinely started affixing the Appellant''s CG Logo, UL and CSA Certification/folio numbers and exported it to their customers directly without their consent. Further, the first Respondent deals with the second Respondent, who is an erstwhile customer of the Appellant and exported goods to them by affixing the marks CG, CE, UL and CSA. According to the Appellant, they are the registered Proprietor of the mark CG, CG Logo, CROMPTON GREAVES in various classes. The Appellant registered their trademark with Community Trade Mark across Europian Countries. The first Respondent, knowing it fully well, had misused the mark/logo CG and other certification marks UL,CSA and CE of the Appellant. Therefore, the present suit was filed by the Appellant.
4. According to the learned Counsel for the Appellants, the learned single Judge appointed an advocate commissioner, as prayed for in Application No. 4677 of 2010 and the advocate commissioner also visited the premises of the first Respondent on 30th August 2010 and found the goods bearing mark CG along with the certification marks UL, CSA with folio numbers allotted to the Appellant but the Commissioner could not seize the infringing goods as he was prevented by the first Respondent from executing his warrant. The Advocate commissioner made specific allegations relating to alterations and manipulations made by the first Respondent over the infringing goods. Thereafter, the first Respondent filed application No. 5573 of 2010 seeking to vacate the interim order granted in O.A. No. 926 of 2010. After hearing both sides, the interim order originally granted was modified allowing the first Respondent to export the goods using the certification but without the Appellant''s folio numbers. It is further contended by the Appellants that the first Respondent did not have registration for UL and CSA certification marks. It is also admitted by the first Respondent that the label bearing the mark MCG are printed within the territory of India. In fact, the registered proprietor of the trade mark MCG is not at all party to the present suit and documents regarding relationship between the concerned third party and the Respondents are not furnished by the Respondents before the learned Judge.
5. (i) The first Respondent filed a counter affidavit mainly contending that they are carrying on business in power and electrical products for the past 25 years and they have got patent for designing Rotary switches apart from many products for design registration and other patent applications are pending. The first Respondent was carrying on business of electrical instruments, equipments, isolated switches and rotary switches, switches, switch gears, circuit breakers etc., and they have acquired good reputation for their products in India and abroad. The first Respondent is also the manufacturer of various switches etc., for M/s. L & T and the same is being marked by M/s. L & T under their brand name. Apart from that, the first Respondent is also marketing products under their own brand name andtrade mark ''Salzer'' and their products are marketed in India and abroad. According to the first Respondent, they are having substantial market share with reference to Rotary Switches and Circuit Breakers in India.
(ii) It is further contended that the Appellant approached the first Respondent in the year 2000 and placed orders for supply of Load Break Switches for the Appellant to maket it in Europe and United States. The Appellant also requested that the said products should be in conformity with CE marketing. The word ''CE'' denotes Conformite Europeenne, a French Word for European Conformity. It is nothing but a self-declaration certified by the manufacture that their products are in conformity with European Union Standards. According to the first Respondent, it is neither a trade mark nor a certificate issued by any Statutory Authority. Any manufacturer, who intends to market their product in the European Economic Community have to declare in the product by affixing ''CE'' mark to show that the standard of their products are in conformity with the standard specifications issued by European Union.
(iii) The first Respondent would further contend that the Appellant insisted the first Respondent that they should obtain CSA certification and UL certification. The certificate CSA denotes ''Canadian Standard Association'' certificate. According to the first Respondent, if any product is to be sold in Canada, that product should contain the markings that it has a ''CSA'' certificate. The UL Certification denotes Underwriters Laboratories Incorporation, a certificate issued by a private Laboratory and that certificate is essential if any product is sold in USA. To obtain both the certificates, the product has to be inspected by the above authorities and this certificate can be issued to any manufacturer or any person who is going to market their product. The obtainment of such certificate by a person does not give him any right of ownership in the product, but it only certifies that the said product is in conformity with the standard specifications for the use in the above said countries.
(iv) The first Respondent would further contend that as manufacturer of a product, they can sell their products anywhere in the World and in fact, the first Respondent is selling their products ''Salzer'' for the past more than 13 years in many countries. The first Respondent is not selling any of its products with CSA and UL markings. The intention of the Appellants is to have monopoly in the field of marketing of electrical products and therefore, with that intention, they have filed the vexatious suit and obtained interim order. The first Respondent is not infringing the trade mark and logo of the Appellant. The allegation that the first Respondent is using deceptive mark MCG as that of the Appellant is meant to mislead this Court. The trade mark MCG is owned by one company namely City Electrical Factors Limited, a registered company in England and the word ''MCG'' denotes Motor Control and Industrial Switch Gear''. It is also one of the customers of the second Respondent through whom the said Company purchases Switch gears from the first Respondent and affix the trademark MCG in the product manufactured and marketed by the first Respondent in England. Even though the Appellant is aware of this fact, they are falsely contending that the said MCG is a deceptive mark of their tradmark. The Appellant did not implead the owner of the trade mark MCG which is a registered trademark, registered in the year 2006 bearing registration No. 2428465 on the file of Intellectual Property Office, UK owned by the above said City Electrical Factors Limited. Therefore, according to the first Respondent, the suit is bad for non joinder of necessary party and on that score alone the suit is liable to be dismissed.
(v) The first Respondent would further contend that the catalogues which the Appellant refers to is being prepared by the first Respondent and the numbers referred in the catalogue is the property of the first Respondent as the first Respondent gives the identification number as code to its products and the entire cost for preparation of the catalogue was paid by the first Respondent. In this context, Rs. 70.77 lakhs is payable by the Appellant to the first Respondent and even though bills were raised in the name of the Appellant, they failed to make the payment. Only in order to evade payment and to cause financial loss to the first Respondent, the present suit is filed. Further, there is No. cause of action, either in whole or in part, had arisen within the jurisdiction of this Court and therefore, the suit is not maintainable. The first Respondent is the manufacturer of the product complained of in the suit and the first Respondent is the registered owner of the trade mark ''Salzer'' and it has got registered patent for their products. There is No. infringement of trademark or the logo of the Appellant by the first Respondent. The catelogue and product codes are the properties of the first Respondent. The Appellants cannot claim any right over the standards such as CE, UL, CSA as its exclusive property. The entire specification for the said products ordered by the Appellant is only made by the first Respondent and therefore, the Appellant cannot claim any right over the same. Since the Appellant wanted to sell their products in USA and Canada, they wanted to affix UL and CSA marks on their products and for this purpose, they approached the respective private certifying bodies namely Underwriters Laboratories etc., and Canadian Standards Association. These private bodies will first take the product, test them and thereafter will certify the products. In such certificate, they will mention a file number, applicant''s name and also the manufacturers name. In this case, the Appellant has applied for the marks mentioning the first Respondent factory as the manufacturing location. In this fashion, the Appellant used to put CG mark with the respective UL and CSA markings with file numbers on their product through the first Respondent. Under those circumstances, the first Respondent prayed for dismissal of the suit as well as the application for interim injunction.
6. The second Respondent filed a counter contending that they are the largest independent supplier of fuse in U.K. for the past thirty years and supplying broad range of electrical components to distribution. In addition to their own Europa brand, they are also distributors of leading manufacturers including GE, Control and Switch Gear Contracts, ETI, Crompton Greaves etc., According to the second Respondent, they are dealing with the Appellant and also with the first Respondent. In fact, the second Respondent placed orders with the Appellant between 2007 and 2009 and also placing orders with the first Respondent for switches due to the fact that the service provided by the Appellant is very poor, contra, the service rendered by the first Respondent was much faster and reliable. While the goods procured from the Appellant would contain the CG label on inner switches, the goods brought from the first Respondent contained their trademarks along with CE, product coding and catalogue numbers. The CG logo along with CE, UL and CSA markings can be seenonly when one opens the outer cartoon, unscrews the top and examines the inner switch. So it was not used as trade mark to market the switches in the European, American or Canadian markets. According to the second Respondent, the electrical equipments procured by them from the first Respondent did not bear the trade mark of the Appellants or certifications or file numbers. In any event, the suit as such is not maintainable and they prayed for dismissal of the suit.
7. The Appellants have filed their reply affidavit to the counter of the first Respondent reitering their stand made in the applications, but would only contend that it is not their intention to have monopoly in the field of marketing of electrical products and for that purpose the suit was filed. It was further contended that the first Respondent not only clandestinely used the CSA and UL markings but also the trademark CG, CG logo, monogram, Crompton Greaves as well as the deceptively similar mark MCG to market their electrical products directly behind the back of the Appellants that too to the customer of the Appellant namely the second Respondent. According to the Appellants, the first Respondent conveniently ignored their responsibility and product liability while dealing with the issue of CE marking. By exporting the products manufactured by the first Respondent with CE marking along with the trade mark CG, it would denote that such products emanate only from the Appellants and therefore, the product liability entirely rests on them and not on the first Respondent who has been misusing the same and exporting it directly to abroad. Further, the first Respondent is exporting the products to the customer of the Appellant namely the second Respondent for whom the Appellants manufactures their product through the first Respondent.
8. The learned Judge, after hearing both sides, dismissed the applications filed by the Appellant for interim injunction and vacated the interim order granted earlier. Aggrieved by the same, the Appellants have come forward with the present original side appeals.
9. We have heard both sides. According to the learned Counsel for the Appellants, the learned Judge failed to consider the facts and documents in right perspective and erred in rejecting the applications filed by the Appellant. The learned Judge also completely ignored the report filed by the advocate commissioner, who found the infringing goods in the premises of the first Respondent. The learned Judge also erroneously interpreted the provisions of law and held that as the mark MCG is not used in India and therefore such use cannot be regarded as an infringement. The learned Judge also failed to consider the conduct and unethical business practices of the first Respondent and prayed for setting aside the order passed by the learned Judge.
10. The points for consideration in these appeals is whether the first Respondent, who was originally given an order by the Appellant to manufacture their products according to their specification, had misused the brand name of the Appellant thereby caused infringement of the products of the Appellants.
11. The main contention of the Appellants was that the word ''CG'' denotes Crompton Greaves which is being used in the course of their business for selling their products. According to the Appellants, they used to supply goods to European, Canadian Countries as also to United States of America. For this purpose, they have obtained the certificate with markings namely CE, UL and CSA after incurring enormous expenses. According to the Appellants, the various authorities have issued certicate in respect of their various products for marketing them. According to the Appellant, the marking ''CG'' denotes Crompton Greaves and such marking had earned reputation for its quality. It is also their contention that only with the markings CE, the Appellants can sell their products at Europian Countries. Similarly, with the marking CSA, they are authorised to sell the goods at Canada and with the marking UL, they are entitled to sell their goods at United States of America. Each of these certification has got identification number. Unfortunately, the first Respondent, who was given order for manufacturing their products for export to Europian Countries had clandestinely started their own products. The first Respondent not only manufacturing the same products as that of the Appellant, but also utilised the trademark namely ''CG'', trademark or deceptive mark ''MCG'' along with the folio number and exported it to European Countries. Apart from this, export of the products were done directly by the first Respondent to the very same customer of Appellant namely the second Respondent thereby embarking upon the business deal with the customer of the Appellants. When an order is given to the first Respondent for the purpose of manufacturing goods, the first Respondent, instead of adhering to the specifications or instructions given by the Appellant had misused the same. Therefore, they filed the suit and sought for appointment of an advocate commissiner. According to theAppellant, the advocate commissiner, who inspected the property found certain incriminating materials, including the products manufactured by the first Respondent by utilising the trademark of the Appellant, however, the advocate commissioner was prevented from executing the warrant issued by this Court.
12. The first Respondent denied that there was any incriminating materials available in their business premises at the time of inspection of the advocate commissioner or they prevented the advocate commissioner from seizing the goods. According to the first Respondent, the word ''CE'' would only denite ''Conformite Europeenne'', a French Word for European Community and it cannot be regarded as alleged by the Appellants. It is nothing but a self-declaration certified by the manufacturer that their products are in conformity with European Union Standards. According to the first Respondent, it is neither a trade mark nor a certificate issued by any Statutory Authority and any manufacturer, who intends to market their product in the European Economic Community have to declare in the product by affixing ''CE'' mark to show that the standard of their products are in conformity with the standard specifications issued by European Union. Therefore, according to the first Respondent, they have not infringed the product of the Appellants and that the suit was filed only in order to achieve monopoly in the field of business by the Appellants.
13. In the course of argument, the learned Counsel for the Appellant produced one of the Switch Gears to show that if the outercasting, if opened, will denote the ''CE'' marking and ''CG'' and numbers were also given. But in the outercasting, the word ''MCG'' is shown. According to the Appellant, this marking namely ''MCG'' used by the first Respondent in their product is deceptively similar and it was used by the first Respondent to deceive the customers and to make it appear that it is the quality product of the Appellant. Further, according to the Appellant, the marking ''MCG'' is misused by the first Respondent in the guise of supplying the same to their customers, on behalf of the Appellant.
14. The first Respondent in fact denies any right as claimed by the Appellant mainly for the reason that the products are not the actual products of the Appellant. In fact, the first Respondent is the manufacturer of the product. The Appellant only gives an order to the first Respondent for manufacturing goods to be sold by them as their product. The Appellant only purchases the product of the first Respondent and sells it in their brand name. Therefore, if at all, the Appellant could be aggrieved only if the products are sold under the name of
''CG'' or ''CE'' with a distinctive number given to them. The first Respondent would further contend that for the word ''CE'' there is No. distinctive number is given and therefore, the allegation that the first Respondent is using the distinctive number given to the Appellant does not arise. On the contrary, the product code mentioned in the product is the product code of the first Respondent. The first Respondent produces various products and assigns a particular product code for every product. Therefore, in that product and in the number given, the Appellant has ''no say''. Similarly, the Appellant can complain of infringement of its trade mark, only if their tradmark ''CG'' is exhibited in the products. Whereas, on verification of the products produced for our perusal and as per the argument of counsel for both sides, it is clear that the first Respondent is not using the brand name ''CG'' or the folio number which has been given to the Appellants. In fact, the first Respondent had given an undertaking before the learned single Judge that they are not utilising the brand name ''CG'' or distinctive numbers in their products and what exactly is done by the first Respondent is that they are executing the orders given by the second Respondent or the logo of the dealers/ buyers. Merely because the second Respondent was earlier a customer of the Appellant, that by itself will not disentitle the first Respondent from manufacturing the products for the second Respondent or for others.
15. Section 29 of the Trade Marks Act deals with infringement of trade marks and explicitly states as to the various acts which constitutes infringement. The ingredients of Section 29(1) are as follows:
1. The Plaintiff''s mark is registered.
2. The Defendant''s mark is identical with, or deceptively similar to the Plaintiff''s registered mark.
3. The Defendant''s use of the mark is in the course of trade in
respect of goods/services covered by the registered trade mark.
4. The use by the Defendant is in such manner as to render the
use of the mark likely to be taken as being used as a trade mark.
5 The Defendant''s use of the mark is not by way of "permitted user" and accordingly unauthorized infringing use.
16. Section 29 (6) of the Act states the circumstances when a person is considered to use a registered trade mark for the purpose of Section 29. Section 29(6) inter alia states that a person uses a registered trade mark if he imports or exports goods under the mark. Thus, u/s 29(6)(c) there is a deeming provision of infringement of registered trade mark even if the goods are imported or exported infringing the registered trade mark. Section 2(2) states that the reference to the use of a mark shall be construed as use upon or in any physical or in any other relation what so ever to such goods. In view of this provision, any use of the registered trade mark in any manner without the consent of the registered proprietor will fall within Section 29(6).
17. In
a Plaintiff in a suit on basis of infringement has to provide not only that his trade mark is infringed by a person who is not a registered proprietor of the mark or a registered user thereof but that the said person is using a mark in the course of his trade, "which is identical with or deceptively similar to the trade mark of the Plaintiff, in such manner as to render the use of the mark likely to be mistaken as the registered trade mark". u/s 2(d), the words ''deceptively similar'' are defined as follows: "a mark shall be deemed to be deceptively similar to another mark if it so nearly resembles that other mark as to be likely deceive or cause confusion.
18. Applying the ratio of the above decision we have considered the matter. We also examined the Switch gear box produced before us. On opening the box containing the switch gear produced for perusal, we find that the word "CG" is not visible on the face of the goods. The mark "CG" appears in the inner casing of the switch gear and it becomes visible only if the screws are unscrewed and are released or the outer-casing is removed. At the time when the Appellant has placed the order to the 1st Respondent to produce the product with trade mark "CG", naturally the Appellants have permitted the 1st Respondent to use the trade mark and their products which were then manufactured by the 1st Respondent. In so far as the infringing mark "MCG" appearing in the outer casing of the Switch gear, it cannot be contended that there is similarity of the mark, much less deceptive similarity.
19. It is well known that the question whether the marks are likely to give rise to confusion or not is a question of first impression. It is for the Court to decide. In so deciding the question of similarity between two marks, the marks have to be considered as a whole.
20. Here is a case where the offending symbol ''MCG'' is a brand name owned by a third party and that third party is not arrayed as a party before this Court. Whereas, the first Respondent can sell the product to any one as he is the manufacturer of the product. One such purchaser of the product from the first Respondent is the second Respondent, who in turn is selling it to the original owner of the trade mark ''MCG''. In fact, the second Respondent, which is a company based in United Kingdom did not import products from the Appellants since they had full knowledge about the fact that the products are only manufactured by the first Respondent on behalf of the Appellants. Merely because the second Respondent now directly ordered goods from the first Respondent, that by itself will not bar the right of the first Respondent from selling their product for the second Respondent. In fact, there is No. trade secret, which has been disclosed by the first Respondent. Contra, the product, was then manufactured by the first Respondent as per the specification of the Appellant. Further, the Appellant need not even give the customer name for outsourcing their product. Therefore, the question that the first Respondent violated the trade secret does not arise.
21. The learned Counsel appearing for the Appellant relied on the decision reported in
46. The grant of an interloctuary injunction during the pendency of legal proceedings is a matter requiring the exercise of discretion of the Court. While exercising the discretion, the Court applies the following tests - (i) Whether the Plaintiff has a prima facie case; (ii) Whether the balance of convenience is in favour of the Plaintiff; and (iii) whether the Plaintiff would suffer an irreparable injury if his prayer for interloctuary injunction is disallowed. The decision whether or not to grant an interloctuary injunction has to be taken at a time when the existence of the legal right assailed by the Plaintiff and its alleged violation are both contested and uncertain and remain uncertain till they are established at the trial on evidence. Relief by way of interloctuary injunction is granted to mitigate the risk of injustice to the Plaintiff during the period before that uncertainity could be resolved. The object of the interloctuary injunction is to protect the Plaintiff against injury by violation of his right for which he could not be adequately compensated in damages recoverable in the action if the uncertainity were resolved in his favour at the trial. The need for such protection has, however, to be weighed against the corresponding need to the Defendant to be protected against injury resulting from his having been prevented from exercising his own legal rights for which he could not be adequately compensated. The Court must weigh one need against another and determine whether the balance of convenience lies (See:
22. In this case, the Appellant has not made out a prima facie case for our interference because the product is the product of the first Respondent and the Appellant ouly outsourced their requirement for selling the product outside India The products were being manufacturd by the first Respondent to the satisfaction of the appllant, but at the same time, the first Respondent also could sell its own products to others. There is No. agreement between the parties to stop manufacturing or rmarketing the products by the first Respondent. Similarly, there is No. agreement that the first Respondent should not supply goods to the buyer of the appllant. In the absence of the above, definitely, the first Respondent himself, as manufacturer of the product, can sell its goods to any one, including the buyer of the Appellant namely the second Respondent. Therefore, if an injunction is granted, though under the guise of brand name being misused or trademark being misused, the entire manufacturing activity of the first Respondent in their industry will be crippled especially when the first Respondent is able to prove that what is being sold is not the product of the Appellant company but it was the product manufactured as per the patent holder''s specification namely ''MCG''. When the patent holder ''MCG'' permitted the first Respondent to use the mark, it is not open to the Appellant to attempt to stop the manufacturing process of the first Respondent by way of an injunction on the ground that the product manufactured by the first Respondent is deceptively similar as that of their product. Therefore, the balance of convenience is only in favour of the first Respondent. When prima facie case and the balance of convenience are not made out by the Appellant, the learned Judge is right in dismissing the applications filed by the Appellants. Even in the decision cited supra, the Honourable Supreme Court relied on the decision reported in
23. The learned Counsel appearing for the Appellant relied on the decision of the Delhi High Court reported in (Kiorimal Kashiram Marketing and Agencies Private Limited v. Sachdeva and Sons Industries Pvt Ltd.,) (2009) (39) PTC 142 (Del) wherein in para No. 16, it was held as follows:
16. By seeing the label and the mark of the Plaintiff and the Defendant, I am prima facie of the opinion that the mark/label of the Defendant is deceptively similar to that of the Plaintiff. The buyers of the goods are likely to retain in their memories the word deer or the pictures of the deer in association with the goods. The said buyers are likely tobe confused by the two trademarks and I find the chances of the buyers distinguishing between the two marks to be minimal. Evne otherwise in the present day retail explosion, when from time totime the manufacturers/sellers of goods come out with schemes to empty their shelves, the use of the expression double has become very common. The said word is normally used to denote as well as promote scheme where double the quantity is being offered at the prices much lower than double. The word double is also normally associated with strength and quality and the only impression which a consumer of Rice is likely to carry is that the Rice of the brand Double Deer is double in quantity or quality than that of the mark/label Deer and the consumer cannot be expected to differentiate. The customer is likely to believe both as originating from the same source and the consumer cannot be in the normal course of human behaviour be expected to understand that the two are different manufacturers having No. connection whatsoever with each other.
24. In that case, it was held that both the rival products are deceptive in nature, but such similarity do not exist in the products which are the subject matter of this case. The facts of this case are totally different. In fact, the learned Judge also considered both prima facie case and the balance of convenience in favour of the Appellant before rejecting their claim. Furthermore, the question of deceptive similarity does not arise in this case as it is clear from the word ''MCG'' that it is being used in totally bold letters in the outercase. The grievance of the Appellant is inside the switch box, only after removing the outercase, the word ''CG'' is used by the first Defendant. Unfortunately, the Appellant could not explain or produce any documentary evidence to the effect that it is dishonestly adopted by the first Respondent or it is being marketed in India. Moreover, on seeing the outer cover of the product, we find that the word MCG is used in a totally different fashion from that of the registered mark CG. The two letter word CG is used in such a manner that the word ''C'' overlaps on the word ''G''. Whereas, the three letter words MCG are independently printed in black bold letters. The font style used in both the marks are also different and therefore, there cannot be any deceptive similarlity, as claimed by the Appellants.
25. In the decision of the Division Bench of this Court, in which one of us (R. Banumathi, J) was a party, in (Blue Hill Logistics Ltd., v. Ashok Leyland Pvt Ltd., and another, O.S.A. Nos. 7 and 8 of 2011 dated 05.05.2011, it was para No. 60 as follows:
60. Since Plaintiff is the registered proprietor of the trade mark, its statutory right is to be protected. The end service is to the passengers. Once prima facie case of infringement of trade mark is established, normally an injunction must follow. Since the case of Plaintiff isnot marginal, there is No. doubt that Plaintiff will suffer, if the Defendants are not restrained from using the infringing mark "LUXURIA". On the other hand, if the Defendants are restrained from using the mark "LUXURIA" the first Defendant may not lose thebusiness. Having regard to the Plaintiff''s exclusive right to use of the mark and weighing the various factors and also balance of convenience, the learned single Judge rightly granted temporary injunction.
26. In para No. 61 of the above said judgment, it was stated that the appellate court will not usually interfere with the exercise of discretion of the Court of the first instance and substitute its own discretion, except where the discretion has been shown to have been exercised arbitrarily by relying on the decision of the Supreme Court in
27. It is seen from the records that the learned Judge has held that even to claim protection u/s 30 (2) (3), only if both the trademarks as well as infringed marks have been registered under this Act, such protection can be granted. It was also found by the learned single Judge that the Appellant had obtained registration of the trade mark ''CG'' logo as a community trade mark and the ultimate supplier i.e., CEF has also obtained registration of the trade mark ''MCG'' in UK. Therefore, if the Plaintiff initiates action in UK against ''CEF'', then they might get protection. Such a finding of the learned Judge is based on the materials available on record and we do not see any reason to interfere with the same.
28. We also take note of the fact that the first Respondent is affixing the registered trade mark namely ''MCG'' only on the goods exported to the second Respondent, at the instance of the first Respondent himself to supply it to the actual owner of the trade mark ''MCG''. Therefore, as rightly pointed out by the learned Judge, the first Respondent was only carrying on the job work assigned to them by the second Respondent, which the first Respondent was earlier carrying out on behalf of the Appellant. Therefore, there is No. question of infringement of the products of the Appellant by the first Respondent, as alleged. As stated supra, when there is vast difference between the two products, there cannot be any deceptive similarities between the symbols, hence, there cannot be any infringement as alleged by the Appellant.
29. As rightly pointed out by the learned Judge, the dispute between the parties is not a trade mark rivalry, but a trade rivalry. The first Respondent has categorically stated that they are not using the similar trade mark in the course of their business as that of the Appellants and that they only manufacture the goods on behalf of the second Respondent as per the specification of the second Respondent. There is No. scope for the purchasers to get confused between the products sold by the Appellants on their own behalf and the products sold on behalf of the Appellants. The reasons assigned by the learned Judge for dismissing the applications are well founded and we do not find any material to interfere with such decision. Accordingly, the original side appeals are dismissed. No. costs. Consequently, connected miscellaneous petitions are closed.
