Manish Pitale ORDER
Manish Pitale, J.
1. By this appeal, the original defendant has challenged order dated 20.06.2017 passed by the Court below i.e. District Judge, Akola, whereby an application for temporary injunction filed by the respondent-original plaintiff has been allowed and the appellant has been temporarily restrained from manufacturing, trading, offering or dealing in the product "Fafda Powder" under the name of "New Gai Chhap", which is found to be deceptively similar to the registered trade mark "Gai Chhap" of the respondent pertaining to the same product, till the decision of the main suit.
2. The respondent-plaintiff filed suit for permanent injunction, infringement of registered trade mark and for claim of damages against the appellant on the ground that the appellant was manufacturing and selling the aforesaid product Fafda Powder under a mark that was deceptively similar to the registered trade mark "Gai Chhap" with a picture of cow being a registered trade mark of the respondent. In this suit, an application for temporary injunction under Order 39 Rules 1 and 2 of the Code of Civil Procedure was moved by the respondent, seeking to restrain the appellant, his agents and servants from infringing the registered trade mark, during the pendency of the suit. The appellant filed written statement in the aforesaid suit and denied the claims of the respondent.
3. By the impugned order dated 20.06.2017, the Court below has allowed the application for temporary injunction filed by the respondent, holding that there was sufficient material on record to demonstrate that the impugned mark of the appellant was deceptively similar to the registered trade mark of the respondent and that there was every likelihood of confusion in the mind of customers of the appellant. On this basis, the Court below concluded that the respondent had satisfied the requirements for grant of temporary injunction and it passed the impugned order.
4. Mr. N.A. Lalwani, learned counsel appearing on behalf of the appellant, submitted that the impugned order was unsustainable because it was not in terms of the law laid down by the Hon'ble Supreme Court on the issue as to when can a temporary injunction order be granted in cases where infringement of trade mark is alleged. It is contended that the mark of the appellant is distinct from the registered trade mark of the respondent and that caricature of cow being very common in the trade and class to which the trade mark in the present case relates, it could not be said that the mark of the appellant was deceptively similar to that of the respondent. It was further contended that for making a comparison between the two marks, they would have to be considered as a whole and that significant dissimilarities in the marks could not be ignored. It was also contended that "Gai Chhap" pertained to a generic word commonly used and that therefore, the respondent could not claim a monopoly over the same. It was the case of the appellant that when evidence about actual damage or loss suffered by the respondent as also about any person being confused by the mark of the appellant, was not brought on record by the respondent, it could not be said that prima facie case was made out for grant of temporary injunction by the respondent. On this basis, it was contended that the court below had committed a grave error in allowing the application for temporary injunction filed by the respondent. The learned counsel for the appellant placed reliance on the following judgments:-
(i) M/s. S.M. Dychem Ltd. vs. M/s. Cadbury (India) Ltd. -