P.K.Sethuraman, J:-

Application nos. 3262 to 3264 of 1988 are by the applicant /plaintiff praying for (a) interim injunction restraining the respondents by themselves their servants and agents their printers and distributors from committing and infringement of the copyright the applicants have in their artistic work filed as documents nos. 1 and 2 and 3 brooke bond super dust tea label by displaying printing or causing to be printed raj kamal super dust tea label filed as document nos. 4, 5 and 6 or any other, leaflet or artistic creation or using the wrapper /label in the cause of the trade which is a colourable imitation or an infringement of the plaintiffs artistic creation namely document nos. 1, 2 and 3 to the plaint (application no. 3262/88). (b) for granting injunction restraining the respondents by themselves servants or agents or anyone claiming through them from infringing the applicants registered trade mark no 301187 and 250152 by the use of the offending trade mark filed as document nos. 4, 5 and 6 and or using any mark containing their essential and main features or any part the thereof or from manufacturing or selling or offering for or advertising for sale any product bearing the said trade marks or part of it or any other trade marks which are in any way deceptively similar to or a colorable imitation of the applicants aforesaid registered trade marks (application no. 3263/88; (c) for granting an interim injunction restraining the respondents by themselves servants or agents or anyone claiming through them from passing off their goods m. O. Nos. 1 and 2 as and for the applicants celebrated super dust tea m. O. Nos. 4, 5 and 6 or doing any act or deed calculated or likely to deceive purchaser or to enable others to pass off and for such other orders.

2. The assistant personnel manager of the applicant/plaintiff at madras has filed the affidavit contending that the suit has been filed for a permanent injunction and other consequential relief's an account of the infringement of the plaintiffs registered trade mark no. 301187 and 250152 and passing off and infringement of copyright. The wrapper used by the defendant field as document no. 4, 5 and 6 is a reproduction in all particulars of documents 1, 2 and 3 of the plaintiff use in their marketing of their tea, and such infringement of the copyright and passing off by the defendant will be offence under sections 78 and 79 of the trade and merchandise marks act hereinafter referred to a as the act and also offence under section 63 of the copyright act punishable with imprisonment and fine. The scrutiny of the plaintiffs label and the defendants impugned wrapper will show that the respondents have copied deliberately and intentionally all the essential features of the plaintiffs artistic work trademark/getup/and colour scheme. The object of such exercise is to pass off the defendants goods as the goods of the plaintiff. Hence the plaintiff has come forward with there applications.

3. With regard to the three applications filed by the applicant/plaintiff a. Nos. 3262 to 3264/88 which were filed along with the plaint, in which interim injunction had been ordered by learned justice s. T. Ramalingam, the defendant has filed there applications to vacate the interim injunction granted in three applications filed by the applicant and at the same time filed the affidavit in support of those applications as counter to the applications filed by the plaintiff. On behalf of the defendant the proprietor of the defendant has filed the counter contending that the suit itself is not maintainable and this court has no jurisdiction to entertain the suit and as such there is no infringement of any trade mark. The certificate issued by the registering authority under the act is very clear that the registration shall give no right to the exclusive use of the words super dust. There is no infringement of any trade mark as such. The plaintiffs trade mark is brooke bond, while the defendant is marketing under raj brand. The defendant is marketing his product fine super dust tea. The word 'fine' is not found in the plaintiff's table. Denying the allegations that the wrapper used by the defendant reproduced all particulars in the wrapper of the plaintiff used in their marketing of their tea, it has been contended that there are sufficient significant difference in words, colour and emblem and get up.

4. According to the counter there could be no civil liability as alleged and it has been further contended that there had been no deliberate and international copying of all the essential features of the plaintiffs artistic work, get up and colour scheme. The defendant has no intention or object to sell the good as that of the plaintiff.

5. The business of the defendant is registered under small - scale industry and the area of operation is restricted at present to vizianagram and srikakulam districts of a. P. Only, and the product is not sold at tamil nadu anywhere much less in petty shops as alleged. The defendant is marketing the tea in small quantities in those two districts only and as present the goods worth about rs. 2, 00, 000/ - had been produced and stored and in view of the injunction the defendant is unable to market the same. The tea will deteriorate in quality if it is stored for a long time and the defendant is maintaining proper accounts and are also assessed to excise and sales tax. They have marketed only form 17. 5. 1938, and if injunction is continued, the defendant will be put to great hardship and loss. There are 25 workers employed in the industry and already they are idling in view of the injunction and the interim injunction ordered in the three applications has been prayed to be vacated.

6. The point that arises for consideration in all these applications is as to whether the applicant/plaintiff is entitled to temporary injunction as prayed for in the applications pending disposal of the suit or the interim injunction already granted in four of the plaintiff is liable to be vacated.

7. The applicant plaintiff has come forward with the case that the plaintiff is selling different types of tea under defend brand names and one of the popular brand of the plaintiff under which tea is sold is super dust tea and they are selling that name since 1968 in various sizes of packets. According to the plaint, the plaintiffs is using registered trade marks more or less similar with very minor variations is their packets of defend quantity from 50 grams to 1 kg in defend sizes. The essential features of all the said series of trade marks are the unique co lour combination of background, the words super dust tea in white and the floral get up. All the trade marks of four defend sizes are registered, and two unregistered. The slight variations in the get up have been designed to suit the sizes of packets carrying defend quantities of tea, but they all have unique distinctive identity in conception. Colour schemes lettering of the words and the floral get up.

8. The trade marks of the plaintiff with which the suit is concerned are registered as nos. 301187 and 250152 dated 4. 12. 74. The yellow globe encircling the expression super dust tea was introduced in january, 1987 to highlight the plaintiff banner. The plaintiff had copyright in the pictorial and artistic creation. Even prior to the rights acquired by the plaintiff under the trade and merchandise marks act, 1958, as it was conceived and created by the staff employed by the plaintiff in the years 1968 and 1974 and since then the plaintiff has been using it extensively. The addition of the yellow globe since january, 1987 has not altered in the least the identity of the original artistic creation or the essential feature of the work. The plaintiff has spent considerable amount for publicity.

9. While so, the plaintiff has come across in the market all over south india including the city of madras tea pockets of defendant with a wrapper identical to that of plaintiffs label, the label with a green background with the words super dust tea with floral devise, cluster of flowers and in globe the expression raj brand in small letters with two leaves. The wrappers used are in the same fashion which the plaintiff is using and thus the conduct of the defendant amounts to infringement of plaintiffs registered trade mark no. 301187 and 250152 passing off and infringement of the plaintiffs copyright in the plaintiff wrapper.

10. It is the contention of the defendant that there is no such similarity as contended by the plaintiff any there had been no infringement of the copyright or passing off the goods and according to the learned counsel for the defendant, this court has no jurisdiction since the defendants sale is confined to two districts, vizianagarm and srikakulam and the business is registered under small scale industry. It is also the contention of the learned counsel for the defendant that there could be no exclusive right of the plaintiff to the super dust tea and there is no question of infringement of any trade mark as such.

11. It is to be pointed out as mention earlier the plaintiff has come forward elaborately complaining that the defendant used the labels for his super dust tea which are similar in colour design floral design and pictorial and artistic creation. The ld. Counsel for the plaintiff wanted this court to per use the respective labels, affixed in the plaint, of the plaintiff and the defendant and even a casual perusal of them makes one feel that both are one and the same. But for the words use 'raj kamal enterprises' in the defendants wrapper absolutely there are no defenses in both the labels. Even a literate purchaser could easily be misled the first sight and will be misled to accept the defendants tea packets as that of the plaintiff.

12. There could be no dispute with regard to the fact that the plaintiff is selling defend types of tea under defend brand names throughout the country and the plaintiff also has claimed four of the trade marks had been registered and two unregistered further, according to the plaintiff, floral design or pictorial and artistic design were conceived and created by the staff employed by the plaintiff in the year 1968 and 1974 and since then the plaintiff is using them extensively.

13. The defendant has put forward the contention than the word 'fine' is there for their tea in the wrapper or packet, and it is not there in the plaintiffs wrapper and that will be a distinguishing feature to show that there had been no infringing of any copyright or infringement of trade mark or passing of the goods of the defendant as that of the plaintiff. It may be pointed out here than the plaintiff has not come forward with the case that mere user of the words super dust tea or of using circle or globe in which the name of the tea with the words super dust tea have been printed.

14. It may also be pointed out that while the plaintiff has come forward of using the wrapper from 1968 to 1974, the defendant has stated in the counter itself that they had been marketing the goods only may, 1988 it may be sometime earlier or in or about that time which is a matter to be investigated at the time of trial having regard to the evidence to be adduced by the parties. According the plaint trade mark no 250152 (document no. 7 filed along with the plaint) which is one of the registered trade marks of the plaintiff, colour combination of green background for lettering and bunch of flowers, had been registered and they are used in packets of 500, 100 or 50 gram and they are used from the year 1968 and registration no. 301187 (document no. 9 filed along with the plaint) has been registered on 12. 9. 1974 and it relates to 25 grams packet. No doubt when the wrappers of the plaintiff as well as the defendant are placed side by side and if they are very carefully compared and scrutinized one may find the difference in colour of one of the flowers, one being pink and another being yellow, and the word 'fine' as mentioned already in the wrapper of the defendant and also the word 'use' in the plaintiffs wrapper but as already pointed out in the passing of it will not be one of comparing the wrappers of placing them side by side because such an occasion will never arise for any purchaser, section 29 (1) of the trade and merchandise mark act, 1958 is as follows; *

29. Infringement of trade marks: (1) a registered trade mark is infringed by a person who not being the registered proprietor of the trade mark or a registered user thereof using by way of permitted us, uses in the course of trade mark which is identical with or deceptively similar to the trade mark, in relation to any goods in respect of which the trade mark is registered and in such manner as to render the use of the mark likely to be taken as being user as a trade mark.

So according to that section there is infringement by a person who not being the registered proprietor of the trade mark as registered user thereof using by way of permitted use, uses in the course of trade a mark, which is identical with or deceptively similar to the trade mark, in relation to any goods in respect of which the trade mark is registered, and there is clear infringement of the registered trade mark. Merely because the registration certificates say that registration of the trade mark shall give no right to the use of the words super dust tea it cannot be contended by the defendant that the applicant cannot maintain the applications and the suit, as already pointed out, action is not based solely on the use of that word. It may also be pointed out that having regard to the contentions put forward by the defendant, it is not a case where what is contemplated under section 29 (2) comes into play.

15. The contention with regard to jurisdiction cannot as such be determined at this stage, as according to the plaintiff, the defendant's goods are sold in madras but he is unable to get a voucher from such petty traders. Having regard to the fact that the suit has been filed alleging sales at madras and also taking into consideration the fact that the plaintiff has produced the wrapper of the defendant and has put forward the allegation that they are being sold in madras, at this stage the application cannot be dismissed stating that the snit itself could not have been filed for want of jurisdiction.

16. The learned counsel for the applicant or plaintiff also submitted that in a case of this nature, as regards the infringement of copyright the plaintiff has got a right to file the suit where the plaintiff resides or carries on business and when the said act gives jurisdiction with regard to the said cause of action (infringement of copyright) the suit claiming relief with regard to the other causes of action could be filed in the same court with the leave of the court. The learned counsel, for the applicant or plaintiff also submitted the decision glaxo operation uk. L td. V. Samrat pharmaceuticals 1984 (4) ptc 66, 1984 air (delhi) 265). In the said decision rendered by a learned single judge of the delhi high court, the case, relating to cartons of glucose d. And glucose n dealt with the case of infringement of copyright act and infringement of trade and merchandise marks act. It has been held in that decision that the plaintiff having the registered office at bombay and local office at delhi could file the suit and maintain the application for injunction before the delhi high court, since it carries on business at delhi. The learned counsel also further contended that in that case leave had already been granted and there had been no application for revoking the leave.

17. The learned counsel for the respondent/defendant submitted that in this case there could be no passing of even though the wrappers may look similar and in this connection the learned counsel for the respondent/defendant submitted the decision m/s. Johnson and johnson v. Christine holden india p. Ltd. 1988 (8) ptc 39, 1988 air (del) 249

) (july part). That is a case relating to sanitary napkins and the plaintiff selling 'stayfree', on packing filed the suit and the application restraining the defendant from using words 'stayfree' on packing of the defendant's sanitary napkin. It was held, dealing with the facts in that case by the learned judges of the delhi high court, that excepting use of the words stayfree packings of the defendant having no similarly to the plaintiffs packings and also the totality of the defendants trade mark, there was no likelihood of causing deception or confusion or mistake in the minds of the ultimate customers, who were literate or semiliterate and illiterate ladies to take the goods of the defendant thinking that they were the goods of the plaintiff. The said decision cannot at all be said to be helpful to the case of the respondent/defendant. We are dealing with the tea packets, which tea packets may be purchased by illiterate tea stall holders, illiterate woman fold and as pointed out earlier, even the person knowing to read english are likely to be deceived if they do not very carefully look and read the labels properly.

18. The learned counsel for applicant plaintiff placed the decision in ebrahim currium and sons v. A. K. Abulla sahib 1934 air (madras) 226) in support of the contention paying for injunction. In the said decision it has been held that in case of infringement of trade mark if there is a prima facie case of deliberate intent to pass off. Interlocutory injunction should be granted, even though an ignorant purchaser will not be deceived into taking one for the other when the two goods are placed side by side and critically examined, which the purchaser never does. He probably trusts to his recollection of one or the other description of it that has been given to him or seeing it in the shop window goes to the person selling the infringement who exhypothesi does not give him the two, the genuine one and the infringement to choose from.

19. In the case, relating to umbrella where the plaintiff had put no. 611 on his umbrella and the infringement complained by the defend using no. 1611, it was held to be a clear prima facie case of deliberate intent to pass off. The learned counsel for the applicant/plaintiff also placed before me the decision in the daily calendar supplying bureau v. The united concern (1964 (12) madras 666). That was a case relating to calendar and the question of infringement of copyright arose in that case. It has been held by learned chief justice s. Ramachandra iyer and ramakrishnan, j. , that copyright is property, and therefore, a suit seeking relief for infringement of a copyright is a suit of a civil nature. If such infringement occurs, and the cause of action for a suit based on the infringement arises within the area of the ordinary originally civil jurisdiction of the high court, that court can be deemed to be a district court as per definition in section 2 (4) of the civil procedure code and will have power to try the suit. Accordingly, it was held that the high court has jurisdiction to try the suit.

20. The learned counsel for the plaintiff also relied on the decision reported in 1959 r. P. C. 83 (tavener rutlsge ld. V. Specters ld.). In the decision the essential features of infringement had been dealt with. It has been pointed out in than decision than on infringement of trade mark, the question is whether label on the defendants tin or the tin as a whole is likely to be confused with the representation in the trade marks journal by persons with imperfect recollections. The learned counsel also placed the decision reported in parle products (p) ltd v. J. P. & co. , mysore 1972 (3) scr 239). In that decision relation to a suit filed under the trade and merchandise marks act, the learned judges of the supreme court have pointed out the proper approach to be made by the courts for determining if one mark is deceptively similar to another. The learned judges gave pointed out that under the trade and merchandise marks act, 1958, a registered trade mark is infringed by a person who uses, in the course of trade, a mark which is identical with or deceptively similar to the trade mark in relation to any goods in respect of which the trade mark is registered and the expression deceptively similar means a mark which so early resembles another mark as likely to deceive or cause confusion. In order to come to the conclusion whether one mark is deceptively similar to another the broad and essential feature of the two are to be considered. They should not be placed side by side to find out if there are any differences in the design, and if so, whether they are of such character as to prevent one design from being mistaken for the other. It would be enough if the impugned mark bears such an overall similarity to the registered mark as would be likely to mislead a person usually dealing with one to accept the other if offered to him.

21. On a careful consideration of the contentions put forward on either side and also the principles laid down in the decisions i hold that the applicant/plaintiff will be entitled to the order of temporary injunction pending disposal of the suit. Accordingly, application no. 3262 to 3264 of 1988 are allowed and the interim injunction granted in favour of the applicant/plaintiff is made absolute. Application no. 4135 to 4137 of 1988 are dismissed. Having regard to the facts of the case, the parties are directed to bear their own costs.

Held : held that the scrutiny of the plaintiffs label and the defendants impugned wrapper will show that the defendant has copied deliberately and intentionally all the essential features of the plaintiffs artistic work trade mark get up and colour scheme with the object of passing off defendants goods as the plaintiffs goods, the interim injunction granted in favour of the plaintiff is made absolute. The defendants contention that he is not selling goods in tamil nadu and as such this court has no jurisdiction cannot be considered at his stage as the plaintiff has produced a wrapper of the defendant and has put forward the allegation that they are being sold in madras, moreover u/s 63 of the copyright act the suit could be field where the plaintiff resides.