R.C Lahoti, J.:— The plaintiffs who are registered owners of the trade mark ‘22’ for manufacturing and marketing bidis have filed this suit complaining of infringement and passing off of their trade mark ‘22’, also complaining of infringement of their copyright in respect of their label.
2. According to the plaintiffs they have been carrying on manufac-turing and marketing of bidis for more than 5 decades. Their trade mark is “22”. The trade mark labels comprising of numerals ‘22’ have been duly registered and renewed from time to time. They have been valid on the date of the suit. The label consisting of “22” is an artistic work duly registered under the Copyrights Act. The plaintiffs are having substantial sales and have incurred huge amounts in publicity of their trade mark and label. The plaintiffs have branch officers in Delhi, Agra and Lucknow and Head Office in Sagar. The plaintiff's are one of the oldest and leading manufacturers of Bidis of superior quality. Shortly before the institution of the suit, the plaintiffs have noticed the defendants manufacturing and selling their bidis under the Trade Mark 122, also having slavishly copied the plaintiffs label. The plaintiffs have also sought for an ad-interim injunction. Vide order dated 17.12.1991 This court has granted an ex-parte ad-interim injunction restraining the defendants from selling bidis under the trade mark “122.”
3. The defendants have denied all the material plaint averments. According to them they have been manufacturing bidis since 1978 using 122 in their trade mark. It is denied that the defendants label is deceptively similar with that of the plaintiffs. It is also submitted that numerals cannot be the monopoly of the plaintiffs as there are several bidis in the market bearing numerals of 122, 212, 21, 120, 822 and similar others.
4. At the very outset, it may be stated that while the plaintiffs have set-out in details the figures of their sales and the amounts incurred on publicity over a number of years in respect of their bidis sold under the trade mark “22”, the defendants have failed to furnish any details much less any documents to show their having been in the market with the trade mark 122 since 1978. The defendants have utterly failed in substantiating even prima facie that the allegation of the plaintiffs of the defendants having entered in the market under the trade mark 122 only a little before the institution of the suit was false. It has, therefore, to be held that the plaintiffs are prior users and registered owners of the trade mark 22. The defendants have recently entered the market with the trade mark 122.
5. Lebels and the bundles containing the bidis which are round and conical in shape have been produced in the court for the perusal. It has been contended by the learned counsel for the plaintiffs that bidi is a commodity of consumption in the lower strata of the Indian society and they are mostly illetrates or semi-literates who consume the bidis. It is further submitted by the learned counsel that the phonetic semi-labels between the figures 22 and 122 is likely to result in deception of the unwary customers and passing off of the defendants goods as of the plaintiffs. There is substance in the submission.
6. Not much of case law is available on the use of numericals as a trade mark, yet aothorities are available for the proposition that numericals can be used as trade mark and rights acquired by such use.
7. In Amritdhara Pharmacy v. Satya Deo Gupta . AIR 1963 SC 449, their Lordships have id down the following principles:
“A trade mark is likely to deceive or cause confusion by its resem-blance to another already on the Register if it is likely to do so in the course of its legitimate use in a market where the two marks are assumed to be in use by traders in that market. In considering the matter, all the circumstances of the case must be considered. What degree of cause confusion must in the nature of things be incapable of definition a prior. For deceptive resemblance two important questions are: (1) who are the persons whom the resemblance must be likely to deceive or confuse, and (2) what rules of comparison are to be adopted in judging whether such resemblance exists. As to confusion, it is perhaps an appropriate description of the state of mind of a customer who, on seeing a mark things that it differs from the mark on goods which he has previously bought, but is doubtful whether that impression is not due to imperfect recollection.”
8. In Century Traders… v. Roshan Lal Duggar & Co… . AIR 1978 Delhi 250, a Division Bench of this court has held:
“The proof of actual damage or fraud is unnecessary in a passing off action whether the relief asked for is injunction alone or injunction, accounts and damages, If there is a likelihood of the offending trade mark invading the proprietary right, a case for injunction is made out.”
9. It is common knowlege that bidis are consumed by illetrates or., semi-literates. The numericals 22 and 122, as used by the parties on their labels are in English writing-style. As the lables and the wrappiog paper are used on the bundles which are conical and round in shape the possibility of the unwary consumers being led away in purchasing defendants bidis as that of the plaintiffs cannot be ruled out. This is sufficient to give a cause of action to the plaintiffs. In so far as the labels and the wrappers are concerned, having perused the colour scheme, design and set-up of the two. I am not satisfied that the defendants have committed a breach of plaintiffs copyright prima facie. It would surface if they are restrained simply from using the trade mark “122”.
10. For the foregoing reasons, IA No. 1962/92 is allowed and IA No. 8016/92 is rejected. The interim order dated 17.12.1991 is confirmed. The defendants are restrained from using the trade mark “122” and any other trade mark consisting of such numricals as may be diceptively similar with that of the plaintiffs “22”.