Dr. M.K. Sharma, J.@mdashThe plaintiff has instituted a suit for perpetual injunction restraining infringement of trade mark, passing off and rendition of accounts in respect of the trade mark of the plaintiff ''JUMBO LABEL'' with device of Aeroplane in relation to edible oils (Mustard Oil). The main relief sought for in the suit is for a permanent injunction restraining the defendant, its servants, agents and others working on its behalf from manufacturing, marketing, selling or offering for sale or otherwise dealing in Tea or any other allied and cognate goods under the trade mark ''JUMBO LABEL'' or any other trade mark which may be deceptively similar to the plaintiff''s trade mark ''JUMBO LABEL''.
2. In the suit the plaintiff has also filed an application under Order 39 Rules 1 & 2 of the CPC seeking for an ad interim injunction restraining the defendants in the aforesaid terms from manufacturing the aforesaid articles under the trade mark ''JUMBO LABEL'' which may be identical and/or deceptively similar to the plaintiff''s trade mark.
3. This court, while issuing summons to the defendants considered it fit to issue only a notice to the defendants on the injunction application and did not grant any ad interim injunction as prayed for by the defendants at that stage. Now the said injunction application has come up for consideration and final disposal.
4. In order to appreciate the points and issues urged by the Counsel for the parties it is necessary to delineate and recapitulate certain facts giving rise to the suit.
5. It is stated that the plaintiff is the proprietor of the trade mark ''JUMBO LABEL'' with device of aeroplane in relation to edible oils (Mustard Oil) and is registered in class 29 from 7.5.1980 in respect of edible oils. The plaintiff adopted the said trade mark in respect of aforesaid goods from April 1973, and has been continuously using the same till date. The business carried on by the plaintiff is very extensive and the aforesaid trade mark ''JUMBO LABEL'' with device of aeroplane has become distinctive and associated with business of the plaintiff. The plaintiff has given vide publicity to the said trade mark and in view of the same the said trade mark came to acquire a unique reputation and enviable goodwill among the public and trade.
6. The defendants are engaged in the business of processing, offering for sale and marketing tea and has adopted the trade mark ''JUMBO LABEL'' with device of elephant in respect of its product tea. The user of identical and/or deceptively similar trade mark by the defendants of ''JUMBO LABEL'' in relation to the same good or goods of the same and cognate description is in clear and flagrant violation of the plaintiff''s legal, vested and statutory rights. According to the plaintiff the initial knowledge of the plaintiff of the defendant using identical and/or deceptively similar trade mark was in the month of August, 1994.
7. The defendants contested the suti by filing a written statement contending inter alias that the trade mark of the defendant is entirely different to that of the plaintiff as also the goods which are of different description. According to the defendants ''JUMBO LABEL'' is commonly used in all trades and is descriptive of the goods having no trade mark value, and Therefore, the plaintiff is not entitled to claim exclusive use of the word ''JUMBO LABEL'' which is common to trade and publicity juris. According to the defendant the trade mark of the defendant consists of ''JUMBO LABEL'' containing a device of elephant which is being used from 1977 to mean an elephant with the word ''JUMBO LABEL'' which is a dictionary word and has no connection or relevance to the meaning or impression of a ''JUMBO'' aeroplane conveyed by the trade mark of the plaintiff.
8. It is stated that the defendant has been openly using the said trade mark for a long time and there could be no confusion or deception on the part of any one as the two trade mark cannot be said to be either visually or phonetically similar, and also as the goods dealt with by the plaintiff and defendants are dissimilar.
9. The principles governing the law of infringement and passing off and its distinction and similarity is no longer rest integra in view of the decisions of the Supreme Court and the High Court in
10. The principle governing the grant of injunction in the matter of trade mark is also by now well settled by the decisions of the Supreme Court and the High Courts, which in my opinion, need no reiteration.
11. Learned Counsel for the plaintiff also drew my attention to the various provisions of the Trade & Merchandise Marks Act and on the basis thereof as also on the basis of the decisions of the Supreme Court and this court the Counsel submitted that although the device might be different, yet the use of the very word ''JUMBO'' can also amount to a similarity which might cause deception or confusion in the minds of customers and purchasers of these article which are purchased from the market by all classes of persons including the illiterate persons. In support of his submission the learned Counsel relied upon the decision of the Supreme Court in K. B. Chinna Krishna Chettiar v. Sri Ambal & Co. and another (supra), Ruston & Hornby Ltd. v. Zamindara Engineering Co. (supra), and of Bombay High Court in M/s. Eagle Potteries Pvt. Ltd. v. M/s. Eagle Flask, Industries Pvt. Ltd. and in Kirloskar Diesel Reacon Pvt. Ltd. v. Kirloskar Proprietory Ltd. (1996 (1) Arb. LR 636, and of this Court in Roshan Lal Oil Mills Ltd. v. Shakti Industries 1995 PTR 140.
12. On the other hand the contentions of the defendant are that the word ''JUMBO'' is commonly used and descriptive in nature. The word ''JUMBO'' with device of elephant used by the defendant and ''JUMBO'' with device of aeroplane used by the plaintiff, both are descriptive words and Therefore, there cannot be a case of passing off or an infringement in the present case. According to the defendants the colour combination and lettering of both the trade marks are different and they are also different in design and layout and the goods are also different and not allied goods. He also relied upon various decisions of the Supreme Court in
13. Learned Counsel for the defendants also drew my specific attention to a decision of the Privy Council in
14. I have given my thoughtful consideration to the submissions made by the Counsel for the parties. The question that arises for my consideration is whether the words ''JUMBO LABEL'' with device of aeroplane and ''JUMBO'' with device of elephant could be said to be descriptive and common in the business parlance and/or whether these two words are deceptively similar to each other. The two words although have a common word ''JUMBO'', but they do not look to be similar. The average or ordinary purchaser would be able to know the difference between the two when he goes to the market to buy the said product. From the visual point of view as shown to me by the learned counsel for the defendants during the course of arguments the two trade marks as used by them in their respective goods appear to be also visually dissimilar and Therefore, the decision of the Supreme Court relied upon by the learned counsel for the plaintiff are not applicable. The two decisions of Bombay High Court in Eagle Flask Industries Ltd. (supra) and Kirloskar Diesel (supra) and the decision of this court in Roshan Lal Oil Mills (supra) are also distinguishable on the facts and circumstances of the case, inasmuch, as in the present case goods in question are different and fall in different class and the device used by both are also different and visually the two marks are different.
15. In my opinion could be said that there is an innocent resemblance of the word ''JUMBO'' between the two trade marks but it cannot be said that the defendants have deceptively copied the trade mark in its letter and its essential features. It appears to me the trade mark of the plaintiff denotes ''JUMBO'' aeroplane whereas that of the defendant denotes ''JUMBO'' elephant. The idea is to convey superpower or strength in strength in edible oils and tea respectively and, Therefore, it cannot be said that there is an imitation by the defendant of the plaintiff''s trade mark and that the defendant is using the same with the sole object of diverting the business of plaintiff.
16. In this connection I may appropriately refer to the decision in the case of Coca Cola Company of Canada Ld. v. Pepsi Cola 1942 (59) RPC 127. In that case the question was whether the word ''COLA'' was descriptive and commonly adopted in naming of beverages. It was held that ''Cola'' was descriptive and commonly used by the manufacturers of non-alcoholic drinks. It was held that :
"The distinguishing feature of the mark Coca Cola was Coca and not Cola. For the same reason the distinguishing feature of the mark Pepsi Cola was Pepsi and not Cola. It was not likely that any one would confuse word Pepsi with coca."
17. On analysis of all decisions placed before me including the decision in Vishnu Das Trading (supra) wherein it is stated by the Supreme Court that if a trader or manufacturer trades in one or some articles coming under a broad classification, such trader or manufacturer cannot be permitted to enjoy monopoly, and applying the said principles of law to the facts of the present case, I am prima facie of the opinion that issuance of interim injunction at this stage is not called for in the present case. Accordingly, the application filed by the plaintiff and registered as I.A. 8444/1994 stands dismissed. It is made clear that the findings arrived at by me herein are my tentative and prima facie opinion and shall not be treated as my final and conclusive opinion on the merits of the case.
18. I.A. dismissed.
