JUDGMENT
B.N. Kirpal, J.
1. The plaintiffs have filed a suit for perpetual injunction against the defendants alleging that the defendants are infringing the trade mark and the copy right of the plaintiff. In the suit the present application has been filed in which the prayer is that the defendants, pending the disposal of the suit, should be injuncted from using the trade mark which is stated to be similar to the registered trade mark of the plaintiffs. According to the plaintiffs it is the registered owner of the trade mark No. 142136 in Clause 34 since 31st May, 1950. This trade mark is in respect of snuff which is manufactured and sold by the plaintiffs. This snuff is sold under the brand name of Himalaya snuff. The trade mark label under which this snuff is sold consists of four panels. On panel No. 1, there are 5 photos of Sh. Bishamber Dass and on panel No. 3, there are 5 photos of Sh. Khetu Ram, the founders of the firm. The photographs show that Sh. Bishamber Dass was clean shaven whereas Sh. Khetu Ram had a beard. In panels No. 2 and 4, there are pictures of hills, fields, rivers and flowers in multi colours giving an idea of hills and its surrounding atmosphere. There is, also a black square panel under all the pictures and the name Himalaya snuff is written in Hindi, English, Punjabi and Urdu. On the panel in which the name is written in English the name of the manufacturer is indicated. That name is also indicated on the panel in which the writing is in Hindi.
2. According to the plaintiffs their mark is being infringed by the defendants who are manufacturing and selling snuff under the trade name of Himachal snuff. The trade label of the snuff sold by the defendants has been produced in court. The two labels namely the label of the plaintiffs as well as of the defendants are remarkably similar. In panel Nos. 1 and 5 of the label of the defendants there are 5 frames which are shown. In the middle frame on panel No. 1 is a photograph of a clean shaven man with a turban, similar to the turban of Sh. Bishamber Dass. On panel No. 3 is a photograph of a bearded person, similar to the photograph of Sh. Khetu Ram. It is true that on each of these panels other photographs are not these but in place of photographs a shape of playing card club, in the four corners of the label is printed. On panel Nos. 2 and 4 are the pictures of hills, fields, rivers and flowers in multi colours and they clearly appear to be a copy of the pictures on the panel of the trade mark label of the plaintiff. Just like the trade mark label of the plaintiff, in the label of the defendants also there are black colour panels under all the four pictures and the name Himalaya snuff is given in Hindi, English, Punjabi and Urdu. Similar to the trade mark label of the plaintiffs under the words Himachal Naswar written in Hindi, the name of the manufacturer in Hindi is also given. The name of the manufacturer is not given under the Urdu and Punjabi writings. Even the colour of the label is remarkably similar.
3. The visual impression of the two labels is that they are remarkably similar. It appears to me that there can be little doubt that an effort has been made by the defendants in copying the label of the plaintiffs but some attempt has been made to try and disguise the copy.
4. The plaintiffs further states that the trade mark PANCH PHOTO is also registered under the registration No. 105800 and they are also the registered proprietors of the artistic work/label under copy right No. A 35760/82. The registration certificates have been produced before me in original. The same clearly support the averments made by the plaintiffs, notwithstanding the fact that the factum of registration has been denied by the defendants.
5. According to the plaintiffs they manufacture and sell snuff under the trade and style of Himalaya snuff of the value of about Rs. 1 crore per year. The counsel for the defendants on the other hand admits that the sale of Himalaya snuff manufactured by the defendants is not more than Rs. 2 lakhs a year. Sh. Trivedi vehemently contends that no injunction should be granted because there are a number of persons who are using similar labels having the same features. In my opinion, however, merely because a large number of persons many work have tried to copy the trade mark label of the plaintiffs can be no ground for refusing to grant an injunction. When a trade mark is registered certain rights are conferred on the proprietor of the same under the provisions of Sections 28 and 29 of the Trade and Merchandise Marks Act, 1958. As regards the defendants are concerned it cannot be said, as at present advised, that there has been a honest concurrent user of the said label by them with that of the plaintiffs. As I have indicated above the manner in which the label have been prepared clearly shows that the inspiration has been drawn from the label of the plaintiffs. It is not disputed that the label of the defendants was prepared subsequent to the label of the plaintiffs. The plaintiffs' label was registered as for back in 1950 whereas according to the defendants it had started manufacturing only in the year 1973 namely after lapse of 23 years. It is difficult to believe, therefore, that the defendants adopted the label without being aware of the label of the plaintiff. There appears to have been a conscious effort on the part of the defendants in trying to copy and adopt the label of the plaintiffs.
6. It is submitted by the learned counsel for the defendants that an application has been filed by the defendants in 1980 for the registration of their label. It is further stated that this application has been admitted and has been ordered to be advertised. In my opinion, as held by a Division Bench of this Court in the case of Metro Playing Card Co. v. Wazir Chand Kapoor AIR 1972 Delhi 248, merely because an application has been admitted and ordered to be advertised would give no rights to the applicant under Section 12(3) of the said Act. It is only after the objections, if any, are dealt with and a registration is granted under Section 12(3) that the applicant who may then become a registered owner would be entitled to use the mark for which it has applied. Till the said application is allowed and the registration granted, in my opinion, the registered trade mark of the plaintiffs has to be protected and cannot be allowed to be infringed by the defendants.
7. It was lastly contended that there has been a delay on the part of the plaintiff in approaching this Court. According to the defendants they have been manufacturing since the year 1973. No documentary evidence has been placed on record to substantiate this claim. However, assuming this to be correct the averment of the plaintiffs, however, is that it is only in the year 1980 that it came to know about the manufacture and sale of Himachal snuff by the defendants. It immediately thereupon issued a notice to the defendants to desist from manufacturing and selling the same but the defendants refused to do so. But that as it may, 'the delay, if any, can only be one of the circumstances which is to be taken into consideration while deciding whether temporary injunction should be granted or not. If I come to the conclusion that there has been an acquiescence on the part of the plaintiffs then of course the injunction may not be issued. In the presence case, however, there is nothing on record which can persuade me to come to the conclusion that the plaintiffs willingly or knowingly permitted the defendants to carry on the sale of snuff. It will be seen that where as the sale of the plaintiffs is about Rs. 1 crore the goods which are sold by the defendants are only worth about Rs. lakhs. So it cannot be said that the goods of the defendants are freely or openly marketed as that of the plaintiffs. In such a circumstance it is not improbable that a large manufacturer may not be immediately aware of the small manufacturer copying his labels and infringing his trade mark.
8. It was also contended by Sh. Trivedi that this would be a fit case where the defendants should not be injuncted from manufacturing and selling under the trade and style of Himachal snuff and it would be in the interest of justice if the defendants are merely asked to maintain accounts. It is now common knowledge that most of the intending purchasers of snuff include agriculturalists, labourers, uneducated men and women living in suburbs and villages. The fact that the sale of the plaintiffs is over a crore means that it has acquired a certain amount of reputation in the market. If the defendants are permitted to sell the snuff in cartons bearing labels which are deceptively similar to that of the plaintiffs, there is every likelihood that amongst such type of consumers, there will be a genuine mistake committed by them. They may feel that they are purchasing the snuff manufactured by the plaintiffs, whereas in fact this may not be so. There is every likelihood, if this quality of the snuff prepared by the defendants is not the same as that of the plaintiff, that there may be serious damage to the reputation of the plaintiffs which will adversely effect its business.
9. For the aforesaid reasons I allow this application and restrain defendants from using the impugned mark/label annexure 'X' to the plaint--in respect of snuff sold by them under the name and style of Himachal snuff. Mr. Trivedi has prayed that I may stay the operation of this order. I see no reason as to why I should stay the operation of the order, when I am prima facie of the opinion that there has been a deliberate attempt on the part of the defendants to infringe the registered trade mark of the plaintiffs. The application stands disposed of.