R.N Aggarwal, J.:— The plaintiffs United Brothers are the registered proprietors of the trade-mark ‘United’ registered under No. 74649 in class 21 in respect of aluminium hollow ware utensils for house-hold use. The plaintiffs manufacture and sell pressure cookers, different kinds of tiffin box and other allied products. The defendants are manufacturing and selling table ware, i.e, spoons, forks and knives under the trade mark ‘United’. The trade name of the defendants is ‘United Traders’.
2. The plaintiffs have alleged that they are in the trade of manufacturing and selling all types of utensils since 1957 and that in the last 3 yeans their goods have attained a unique name and popularity in the market and that their turn over in the 1980-81 was Rs. 23.25 lakhs and in the same year they had spent Rs. 1,18,722.88 on advertisements; that in June 1981 they found that the defendants were manufacturing utensils affixed with the mark ‘United’ which is exactly similar to the plaintiffs ‘trade-mark’ that the defendants by affixing the said mark on house-hold utensils including spoons are passing off their goods as the goods of the plaintiffs.
3. The plaintiffs have alleged that they are in the market since 1957 and their goods are sold all over India and the defendants had the knowledge of their trade-mark and their adoption of the mark ‘United’ in respect of utensils made of any metal is dishonest and with fraudulent intentions.
4. The plaintiffs alongwith their plaint filed an application under order 39 rules 1 and 2 and section 151 of the Code of Civil Procedure for an ad-interim injunction order restraining the defendants from adopting the offending trade mark in relation to utensils including spoons.
5. The defendants in the written statement have pleaded that they are manufacturing and selling tableware (cutlery) under its own trade mark ‘United’ since 1975. The defendants pleaded that they are not manufacturing and selling any kind of utensils. The defendants alleged that the mark of the plaintiffs is registered in respect of aluminium hollow ware utensils for household use, falling in class 21 of the IVth Schedule and that spoons, forks ana knives manufactured by the defendants fall under class 8 of the said Schedule and, therefore, the allegation that the defendants are likely to pass off their goods as those of the plaintiffs is not well founded. The defendants further alleged that the plaintiffs have never manufactured and/or sold any household utensils.
6. The plaintiffs in the rejoinder to the reply in the I.A pleaded that spoons, knives and forks are cognate goods and the defendants use of the mark is dishonest from its inception.
7. On 18th December 1981 Mr. Justice Avadh Behari passed an order restraining the defendants from using the mark ‘United’ on the cutlery that they manufacture, namely, knives, forks and spoons.
8. After hearing the learned counsel for the parties, I am of the considered view that the injunction ordered should not be continued. The suit of the plaintiff is principally founded on the allegation that the defendants are manufacturing utensils including spoons with the mark ‘United’ which is a registered mark of the plaintiffs and thereby the defendants have infringed the plaintiffs mark. The defendants in their written statement have clearly stated that they are not manufacturing any kind clearly stated that they are not manufacturing and selling spoons, knives and forks. The said goods fall in class 8 of Schedule IV whereas the goods manufactured by the plaintiffs fall in class 21. The plaintiffs have never manufactured and sold spoons, forks and knives, and forks manufactured by the defendants are allied or cognate goods. It is only in the rejoinder to the I.A that the plaintiffs stated that spoons, knives and forks are cognate goods. Without expressing any final opinion I am prima facie of the view that forks, knives and spoons cannot be said to be goods allied or cognate to the goods of the plaintiffs; in any case, the sale of the said goods by the defendants can in no case, be considered by the buyer as the goods of the plaintiffs, for, the plaintiffs have never manufactured and sold spoons, forks and knives. The goods manufactured by the plaintiffs and the defendants may well besold in the same shop or the counter but the said goods are so different in shape and use that there cannot be any confusion in the mind of purchases that the goods manufactured by the defendants are of the plaintiffs.
9. Mr. Anoop Singh, learned counsel for the plaintiffs, in support of his contention placed reliance on some authorities, but in my view they are distinguishable on facts and will have no application to the case in hand.
10. For the reasons stated I would vacate the injunction order granted on 18th December 1981 and dismiss I.A 3917 of 1981. However, the parties are left to bear their own costs.
11. Nothing herein above stated shall be taken as an expression of opinion on the merits on the controversy.