K.S. TIWANA, J.

(1.) This appeal has been directed against the temporary injunction granted by the learned Additional District Judge, Ludhiana, restraining the appellant-defendants from infringing the copyright number A-18463-77 in respect of "MMB" whisky and also selling their product, that is whisky, under the label "BMB" through their agents, servants, stockists or dealers in any manner whatsoever.

(2.) The respondent-plaintiff Mohan Meakin Breweries Limited, which has a registered office at Solan Brewery in Himachal Pradesh, filed a suit for permanent injunction against the defendant for the infringement of their Copyright and passing off goods. The facts stated in the case by the plaintiff are that the plaintiff-company are leading Brewers and Distillers of repute and are selling whisky under various brands one of which is "MMB". This brand of whisky was introduced in the Republic of India by the plaintiff in January, 1975 and is generally sold in bottles of "750 ml", "375 ml" and "180 ml" with distinctive labels thereon. The salient features of the said labels of the company are the House and general mark printed in black colour at the top, letters "MMB" appearing in bold type in black lettering super-imposed in red lettering, and the word "whisky" in bold red lettering beneath the said "MMB" letterings and the name of the company appears at the bottom. The plaintiff-company is the registered owner of the Copyright for the Artistic designs of its "MMB" whisky labels, which have been registered under the Copyright Act. This whisky is sold and offered for sale by the plaintiff throughout the country. By reason of long continuous, extensive and exclusive use of the said "MMB" labels and the get-up of the whisky in connection with or in relation to whisky, and advertisement and publicity, the said "MMB" whisky labels and the get-up etc. have become the exclusive property of the plaintiff-company. The plaintiff has made a lot of publicity after spending huge amounts of money on it and the sales from February, 1975 to September 1977, have amounted to 5,20,83,890. In or about August, 1977 the plaintiff came to know that the defendants-appellants have introduced into the Market whisky under the trade mark "BMB" whisky in labels which are a slavish copy of the plaintiff- company's "MMB" whisky labels in all respects. The appellants are also selling the whisky in the three sizes of bottles as the plaintiff. There is a phonetic and visual similarity in the letters "MMB" and "BMB" and the appellants have slavishly copied the design, lay-out, get-up and colour-scheme of the plaintiff-company's whisky labels under the trade mark "MMB", which is an infringement of the rights of the plaintiff-company. The case of the plaintiff is that the defendants have deliberately and fraudulently adopted "BMB" whisky labels with the design, get-up, lay-out and colour-scheme in order to cause confusion and deception in the mind of the trade and the public and in order to pass-off their whisky as the genuine product of the plaintiff-company. This phonetic and visual similarity of the labels is not a matter of chance but has been done with a deliberate intention to deceive the ultimate purchasers and to earn profits, to Which the defendants are not entitled and this similarity has enabled and will enable the defendants to pass off the whisky of their manufacture as the whisky of the plaintiff-company.

(3.) On 1st of September, 1977, the plaintiff got purchased bottles of "BMB" whisky of the defendants from Natha Ram and Company, G.T. Road, Ludhiana and Vikramjit Singh, L-2 licences, Hari Singh Nalwe Road, Ludhiana. On the basis of these facts, the plaintiff-company filed the aforesaid suit with a prayer to permanently restrain the defendants from manufacturing and selling the said whisky.

(4.) The defendants in their written statements raised multifarious preliminary points about the maintainability of the suit, joinder of the causes of action, non-joinder of the Excise and Taxation Commissioner Haryana, as a Party to the suit and jurisdiction. A plea was also raised that as the label was not a work of art, there was no question of the infringement of the Copyright. On merits, the case of the plaintiff was denied. It was stated that there was no question of infringement of any Copyright as the label was not a work of art and could not be registered as a Copyright and the plaintiff was not entitled to claim any such right for the label "MMB". The case of the plaintiff on the point of similarity of the label was refuted. It was stated that the seals of the bottles of the defendants had a different colour pattern and design. Even the label had a difference. In the defendant's label the words written were "PAN COP DISTILLERY" and the device of two hand shaking form appears at the bottom of the label. The right of the defendants to use the words "BMB" was defended and it was pleaded as an instance that many other distilleries were using similar words as "DMP" etc. The mala fide intention in introducing such labels to facilitate the goods of the defendant to be passed off as the goods of the plaintiff were denied and the right of the plaintiff to attribute those letters to itself was contested.

(5.) Along with the plaint, an application under Order 39, Rules I and 2 for the issue of ad-interim injunction by the plaintiff was filed for restraining the defendants from selling their whisky under the same label with letterings "BMB" till the disposal of the suit. The learned trial Judge after perusing the contention made by the rival parties and going through the records, vide his order dated 11th of January, 1978, accepted the application and issued an ad-interim injunction restraining the defendants (now appellants) from contravening the Copyright of the label in the suit and also selling their product under the label "BMB" in bottles of "750 ml", "375 ml" and "180 ml". The learned Judge also restrained the sale by the defendants or through their agents, servants, stockists or dealers in any manner whatsoever with a direction that as the stocks had been distributed by the defendant-company and it will take time for them to enforce the said decision, so the operation of the injunction order was delayed till 21st January, 1978.

(6.) Feeling aggrieved against this order, the defendants have filed the present appeal.

(7.) During the pendency of the appeal, on certain observations made by the Bench at the time of motion stage, the appellants have brought some changes in their labels by changing the colour-scheme etc.

(8.) The main case is yet at a preliminary stage before the trial Court and we are seized of an appeal only against the temporary injunction granted in favour of the plaintiff-respondent. The issues are yet to be framed and the parties have yet to lead evidence. At this stage the intricate questions of law and facts raised by the defendant-appellant about the maintainability of the suit, jurisdiction, cause of action etc. need not have been gone into by us as the parties are yet to lead evidence and substantiate their pleas. We need not, therefore, discuss elaborately the law about the infringement of Copyright or passing off, as canvassed before us by the counsel for the parties, at this stage, in view of the limited material before us in the form of only the pleadings and affidavits of the parties. We have only to see if the plaintiff has made out a case in its favour for the grant of a temporary injunction from the facts so far available on the file and whether the order under appeal is justified. For this decision, the facts of the case and the pleas to some extent are to be gone into and even observations have to be made.

(9.) Any such observations made by us in favour of one or the other side should not be taken by the trial Court, which is yet to decide the case between the parties after recording evidence, as a decision on the merits of the case.

(10.) During the course of the arguments, the counsel for the parties mainly concentrated on the point of the passing off of the goods and the breach of infringement of the Copyright of the plaintiff. Distinction between an infringement action and a passing off action has been succinctly given by the Supreme Court in Ruston and Hornby Ltd. v. Zimindara Engineering Co. Ltd., AIR 1970 SC 1649 as under :

"The distinction between an infringement action and a passing off action is important. Apart from the question as to the nature of trade mark the issue in an infringement action is quite different from the issue in a passing off action. In a passing off action the issue is as follows : 'Is the defendant selling goods so marked as to be designed or calculated to lead purchasers to believe that they are the plaintiff's goods?'

(11.) But in an infringement action the issue is as follows:-

"Is the defendant using a mark which is the same as or which is a colourable imitation of the plaintiff's registered trade mark?' It very often happens that although the defendant is not using the trade mark of the plaintiff the get-up of the defendant's goods may be so much like the plaintiff's that a clear case of passing off would be proved. It is on the contrary conceivable that although the defendant may be using the plaintiff's mark the get-up of the defendant's goods may be so different from the get up of the plaintiff's goods and the prices also may be different that there would be no probability of deception of the public. Nevertheless, in an action on the trade mark that is to say, in an infringement action, an injunction would issue as soon as it is proved that the defendant is improperly using the plaintiff's mark. The action for infringement is a statutory right. It is dependant upon the validity of the registration and subject to other restrictions laid down in Sections 30, 34 and 35 of the Act. On the other hand the gist of a passing off action is that A is not entitled to represent his goods as the goods of B but it is not necessary for B to prove that A did this knowingly or with any intent to deceive. It is enough that the get-up of B's goods has become distinctive of them and that there is a probability of confusion between them and the goods of A. No case of actual deception nor any actual damage need be proved."

(12.) In view of this distinction made by the Supreme Court and the facts as contained in the pleadings of the parties, we propose to decide this appeal only on the question of 'passing off'.

(13.) In the case of 'passing off', the plaintiff has to allege that the goods of the defendant offered to the hands of the public are likely to be mistaken for the goods of the plaintiff, thus leading to deception. Actual deception is not necessary. The plaintiff has to prove substantial user of his goods. In order to restrain the defendant from production and marketing of goods he has to further prove that the two goods are so similar in their labels, packing, get up etc. that they are likely to cause confusion in the mind of the purchaser or to deceive him on first impression. It is to be appreciated whether the overall visual and phonetic similarity of the plaintiff's and defendant's labels, marks, get-up etc. is likely to deceive a man of imperfect recollection, or in the case of a fading memory even a man of average intelligence, so as to lead him to mistake the goods of the defendant to be the goods of the plaintiff. It is keeping in view of these well-recognised principles approved by the Courts of this country, that the question of granting temporary injunction has to be examined.

(14.) The label of the plaintiff's whisky contains the letter's "MMB", which are an abbreviation of "Mohan Meakin Breweries". This label has a distinctive colour and has words written on it. The defendant's label contains letterings "BMB" and is similar to the plaintiff's label with of course different House mark. Before the learned Additional District Judge, the counsel for the defendants could not say what did "BMB" mean. Before us the counsel for the defendants stated that these letterings meant "Best Marketing Brand". We appreciate the ingenuity of the learned counsel for giving us this phrase, but unless a background for the use of these words is given, these words do not mean anything and seem to have been devised only to satisfy the query of the Court. The learned counsel for the appellant has argued that the label which has been changed is materially different from the first one in which the colours of the letterings "BMB" have been distinctly changed. On a careful examination of the labels, we find that it is so, but this does not clinch the matter for the purpose of temporary injunction in favour of the defendant. This fact we have appreciated as we are conscious of it and our pointed attention has been drawn to the difference during the course of the arguments. This comparison of the two labels side by side by the Court is not an appropriate method to know whether any purchaser would be deceived or not because the purchasers never compare the labels side by side. The similarity or dissimilarity is not to be noticed but an overall view of the label is to be taken by the Court, so as to find out whether it is so designed in its get-up, letterings, colouring etc. so as to deceive any unwary or unsuspecting purchaser of imperfect recollection. The label of the plaintiff has a distinctive feature, especially the letterings "MMB". The Court is not to visualise the reaction of an intelligent purchaser with a sharp memory and astute power of observation. It has to see the type of the goods and the people who commonly use it and purchase it. This is the main guiding factor in such cases. The parties stated that the price of the whisky of both the parties was Rs. 32/-per bottle. Such a type of whisky is used by a middle class man or the upper class people. It has been stated on behalf of the plaintiff that the sales of this whisky between January 1975 upto September 1977, were Rs. 5,20,83,890/-. This shows that large number of people in the country are using it. Every user of this whisky cannot be said to be a man of perfect recollection with astute observation and many out of them may be uneducated, illiterate and may not make deep or proper enquiries at the time of purchase. The chances are that the purchasers may be misled by the similarity of the label, or may be persuaded by the persons selling whisky of the defendant to accept it as the whisky of the plaintiff. This risk is greater when the prices of both the brands of whisky are the same. The element of deceitful passing off by the sellers at this stage on the facts presently on the file cannot be ruled out.

(15.) From the allegation of the plaintiff that the sales from January, 1975 to September, 1977 have been to the tune of Rs. 5,20,83.890/- it appears that the plaintiff's "MMB" brand whisky is being substantially used by the public. The defendant which started the production of its "BMB" brand in 1977 did not give the figures of its sale in the case. Substantial user of its whisky by the public for the purpose of temporary injunction has been established by the plaintiff.

(16.) Though the reputation of Mohan Meakin Breweries, which is a successor of' Dyer Meakin Breweries is not to be taken into account, from the figures of the sale of this whisky as given by the plaintiff, it appears that as between the parties the plaintiff has a reputation for its whisky in question.

(17.) Testing the case on the touchstone of the principles given above and after hearing the counsel for the parties, we are of the opinion that the plaintiff has made out a case in its favour for temporary injunction and it was rightly granted by the learned Additional District Judge, Ludhiana. In view of the above observations, we dismiss the appeal. In the peculiar circumstances of the case, however, no order as to costs is made.

(18.) As the sale of the defendant's whisky is being stopped, the learned counsel appearing on its behalf requested for a speedy disposal of the case. The learned counsel for the Plaintiff also showed his anxiety to finish the case as soon as he possibly could. Both the counsel for the parties agreed before us that they will not take more than three months to finish the case. The learned trial Judge should make efforts to decide the case within three months from the date he received the file from this Court in his Court.