What is Doctrine of passing off ?

- Elements to be proved by plaintiff

for succeeding in passing off action

Jal Drop Vs Jeevan Drop | No Infringement

This is a classic case of claim of Infringement and Passing Off. Short
Background of the Case.
Shree Mauli Chemicals Industries, Newasa at Ahmednagar, Maharashtra
owns and uses JEEVAN DROP as its trademark and market goods as
Water disinfectants. Shree Mauli Chemicals appointed Shree Swami
Samarth Agencies as its Marketing Agent somewhere in the year 2011
and it came to expire in the year 2015. Mutually parties did not renew
the Marketing Agreement.
Shree Swami Samarth Agencies entered into Assignment agreement with
one Seema Bagade and obtained exclusive assignment of JAL DROP
tradenmark and launched similar product as that of JEEVAN DROP. The
chemical Sodium Hypochloride was main content of both products.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
Appeal from Order No.111 of 2015
Shri. Swami Samarth Agencies,
Versus
Mauli Chemicals Industries
CORAM: T.V. NALAWADE, J.
DATE : 8th FEBRUARY 2016
Citation:AIR 2016(NOC)388 Bom

1) Appeal is admitted. Notice after admission, made returnable forthwith. By

consent, heard for final disposal.
2) The appeal is filed against the order made on Exhibit 5 by District Judge-1
Newasa, District Ahmednagar in Trade Mark Suit No.1/2015. In the suit
filed by the present respondent, Chemical Industry, against the
appellants, order of temporary injunction of following nature is made:"The defendants are hereby restrained, by themselves or through their
servants, agents or through anybody else on their behalf, from using
the trade mark "JAL DROP" or any other trade mark identical or
deceptively similar to the plaintiff's registered trade mark "JEEVAN
DROP" till final decision of the suit."

Initially ex-parte order of

temporary injunction was made and it is confirmed on merits, after

hearing both sides.
3) The suit is filed by present respondent under section 134(2) of the Trade
Marks Act 1999 (hereinafter referred to as "the Act"). The plaintiff is a
manufacturer of chemical substance, Sodium Hypochlorite Solution.
This substance can be used as drinking water disinfectant. It is the
case of the plaintiff that it is in the business of manufacturing and
marketing of this substance for more than two decades. It is contended
that in the month of August 1996 the plaintiff conceptualized and
adopted the trade mark "JEEVANDROP". It is contended that application
for registration of the trade mark was made on 30-8-1996 in Class 5 of
the goods of the Act and the trade mark has been registered.
4) It is the case of the plaintiff that it has been using the word "JEEVANDROP"
as trade mark and it is also using artistic logo having this word. The
plaintiff has given the picture of logo in the plaint. It is the case of the

plaintiff that it has been selling the aforesaid product in bottles in

Maharashtra, Gujarat and Goa since more than 2 decades.
5) It is the case of the plaintiff that under the agreement deed dated 29-52012 it had appointed defendant No.2, Shri. Swami Samarth Agencies,
as its sole distributor for Maharashtra region. It is contended that this
agreement came to an end on 29-5-2014. It is contended that the
plaintiff has spent huge amount on the publicity of the aforesaid brand
name. It is the case of the plaintiff that defendants have no right to use
the aforesaid trade mark or similar trade mark in view of the reputation
and good will earned by the plaintiff.
6) It is the case of the plaintiff that in the month of October 2014 the plaintiff
came across an application made by the wife of defendant No.2, Smt.
Jyoti Wani for registration of trade mark "JALDROP" in class 5 and so
the plaintiff took objection to the registration and gave notice to the
said lady about the objection. It is contended that initially Smt. Jyoti
contended that logo was created by her and it was her design but
subsequently she withdrew the application.
7) It is the case of the plaintiff that in the month of March 2015 it came
across a product of defendant No.1 in the market by name "JALDROP"
and he noticed that the label of the bottle was similar to the label of
the plaintiff 's brand "JEEWANDROP". It is contended that as per
information of the plaintiff, defendant No.3 has applied for registration
of trade mark "JALDROP" in Class 5 and this trade mark is deceptively
similar to the trade mark "JEEVANDROP" of the plaintiff. It is contended
that the defendant Nos.2 and 3 are marketing the product "JALDROP"
of defendant No.1 and they are acting together. Defendant No.2
Ratnakar is said to be a cousin brother of defendant No.3 Smt. Seema.

8) With the plaint, plaintiff has produced specimen labels of his own product
and the product of defendant No.1. It is the case of the plaintiff that
there is infringement of his trade mark "JEEVANDROP" due to the use
of trade mark "JALDROP" and it is substantially similar to the trade
mark of plaintiff. It is contended that by adopting the trade mark
"JALDROP" with dishonest intention defendants want to deceive the
people and they want to make the people believe that "JALDROP"
product is also a product of plaintiff. It is contended that the
defendants are trying to trade upon the reputation and good will of
plaintiff by using such deceptive trade mark.
9) It is the case of the plaintiff that in the past, defendant No.2 was
distributor of the plaintiff and he has misused his position by passing
off the product "JALDROP" as the product of the plaintiff. It is the case
of the plaintiff that he has not consented for using trade mark
"JALDROP" by the defendants. In the suit, relief of injunction is claimed
on the basis of registration of trade mark "JEEVANDROP" and another
relief is claimed to prevent the defendants from passing off their goods
as that of the plaintiff. Damages of rupees one lac are also claimed.
10) Defendant Nos.1 to 3 filed joint written statement. Amongst other
contentions they have made following specific contentions in the
written statement and also in the say offered to Exhibit 5 :(I) That, the word "JEEVAN" used by the plaintiff is descriptive in nature and it
has dictionary meaning and it is the word used for water disinfectant.
That, the word "DROP" is used as drops of chemical which act as
disinfectant and the name and description signifies the purpose for
which the product is to be used.

(II) That, till the year 2004 the plaintiff had not used this trade mark and that
can be seen from the journal published in the year 2004 where the
plaintiff has mentioned that itproposes to use the aforesaid trade mark.
(III) that the word "JEEWANDROP" does not involve innovation and it is
combination of dictionary words.
(IV) That, only the word "JEEWANDROP" is registered as trade mark and no
artistic logo as such or device of drop in the background is registered
as trade mark and so the trade mark of the defendants is distinctively
different.
(V) That the defendant No.3 has applied for registration of trade mark
"JALDROP" both as word and also device with two different logos. Two
different logos having such word marks are submitted for registration
and those marks are assigned to defendant No.2 by defendant No.3
under a deed of assignment dated 4-8-2012 and the Deeds are
submitted in the office of the
Registrar under the Act. Thus the words and the logos are not similar to the
registered trade mark of the plaintiff and they are not likely to create
confusion in the minds of purchasers of any kind.
(VI) that due to difference in the trade marks and also other things about the
goods of defendant there is no question of passing off the goods of the
defendants as the goods of the plaintiff.
(VII) that the defendant No.2 has his own network of distribution though he
had worked as sole distributor of the plaintiff. Defendant No.2 had used
his own network and he had spent on publicity and he had taken
initiative for increase of the sale of the product of the plaintiff. When
the agreement between the plaintiff and defendant No.2 came to an
end, the plaintiff did not extend the contract and then defendant No.2

took steps to introduce such product under the name of "JALDROP" as

there was demand for such product in the market. Due to the sale of
the product of the defendants there is possibility that the sales of the
plaintiff are affected but this is not due to the passing off the goods of
the defendants as the goods of plaintiff. Due to increase in sale of
product of the defendant, plaintiff is frustrated and he has taken the
steps like filing the suit against the defendants to prevent them from
selling their product.
11) The defendants have admitted in their written statement that Jyoti Wani
had applied for registration of trade mark but it is described as "Su
Jeevan Drop". It is their case that when the plaintiff filed objection,
there was settlement between the parties and then Jyoti withdrew her
application filed for registration.
12) It is the case of the defendants that they are manufacturing and selling
sodium hypochlorite solution under the name and trade mark
"JALDROP". It is their contention that their trade mark is totally
different in words, in colour combination and in the material mentioned
on the label. It is contended that the adoption of the trade mark by the
defendants is honest and their trade mark is original and it is
conceived by defendant No.3. The defendants have given points of
differences between their trade mark and the trade mark of

the

plaintiff in the written statement.

13) On the basis of physical verification of the bottles of the plaintiff and the
defendants, the trial Court observed that the size, shape etc. of the
bottles are similar. It is observed that the colours of the bottles are
exactly similar and the manner in which the words are printed on the
labels are similar. The trial Court has observed that the defendants
have attempted to make little bit difference in design, the logo and the
background colour but due to such difference the overall similarity is

not removed and there is intention to deceive. The circumstance that

in the past wife of defendant No.2 had attempted to register similar
trade mark is considered against the defendants. It is held by the trial
Court that the plaintiff has already earned reputation and good will in
the market by using the trade mark "JEEVANDROP" and it is observed
that the defendants are trying to cause harm to this reputation and
good will.
14) From the pleadings in the plaint and the reliefs claimed it can be said
that the action of the plaintiff is for infringement of registered trade
mark and also for passing off the goods by defendant by using the
trade mark and label which, according the plaintiff, are deceptively
similar to that of the plaintiff. It is not disputed that there is identity of
goods. In the written statement, the defendants have admitted that in
the past the defendant No.2 was the sole distributor of the plaintiff for
Maharashtra region. It is also not disputed that sales of the plaintiff
must have come down due to introduction of the similar product by the
defendants in the market. In view of these circumstances, the
provisions of sections 27, 28 and 29 of the Act need to be used.
Relevant parts of

the sections for the present purpose are sections

27(1), (2); 28(1) and 29(1),(2),(3) and (9) and they are as under :"27. No action for infringement of unregistered trade mark.-- (1) No person
shall be entitled to institute any proceeding to prevent, or to recover
damage for, the infringement of an unregistered trade mark.
(2) Nothing in this Act shall be deemed to affect rights of action against any
person for passing off goods or services as the goods of another person
or as services provided by another person, or the remedies in respect
thereof."

"28. Rights conferred by registration.-- (1) Subject to the other provisions of

this Act, the registration of a trade mark shall, if valid, give to the
registered proprietor of the trade mark the exclusive right to the use of
the trade mark in relation to the goods or services in respect of which
the trade mark is registered and to obtain relief in respect of
infringement of the trade mark in the manner provided by this Court."
"29. Infringement of registered trade marks.-- (1) A registered trade mark is
infringed by a person who, not being a registered proprietor or a
person 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 goods or services 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 used as a trade mark.
(2) A registered trade mark is infringed by a person who, not being a
registered proprietor or a person using by way of permitted use, uses
in the course of trade, a mark which because of -(a) its identity with the registered trade mark and the similarity of the goods
or services covered by such registered trade mark; or (b) it similarity to
the registered trade mark and the identity or similarity of the goods or
services covered by such registered trade mark; or
(c) its identity with the registered trade mark and the identity of the goods or
services covered by such registered trade mark, is likely to cause
confusion on the part of the public, or which is likely to have an
association with the registered trade mark.
(3) In any case falling under cause (c) of sub-section (2), the Court shall
presume that it is likely to cause confusion on the part of the public. (9)
Wheres the distinctive elements of a registered trade mark consist of

or include words, the trade mark may be infringed by the spoken use
of those words as well as by their visual representation and reference
in this section to the use of a mark shall be construed accordingly.
15) Both the sides have placed reliance on some reported cases. For the
respondent - plaintiff learned counsel has placed reliance on the
following reported cases :(1) AIR 1972 SC 1359 (Parle Products (P) Ltd. v. J.P. and Co. Mysore);
(2) AIR 1970 SC 146 (K.R. Chinna Krishna Chettiar v. Ambal and Co.);
(3) (2007) 6 SCC 1 (Heinz Italia v. Dabur India Ltd.)
(4) AIR 1965 SC 980 (Kaviraj Pandit Durga Dutt Sharma v. Navaratna
Pharmaceutical Laboratories)
(5) AIR 2006 SC 3304 (Ramdev Food Products Pvt. Ltd. v. Arvindbhai Rambhai
Patel)
(6) AIR 1984 Bom. 218 (Hiralal Prabhudas v. Ganesh Trading Company);

(7) 1997 (PTC) 17 (Chimanlal Narsaji Suhan v Parasmal Mithalal Parmar);

(8) AIR 1997 Delhi 172 (Kishor Zarda Factory v. J.P. tobaccos);
(9) 1990 PTC 16 (M./s Richardson Vicks Inc. v. M/s Vikas Pharmaceuticals);
(10) 1995-PTC-209 (M/s Murari Lal Harish Chander Jaiswal v. M/s Raj Zarda
Works)
(11) 1983-PTC-127 (J.P. Coats Ltd. v. Gian and Co.);

(12) 1983-PTC-34 (Prince Rubber Industries v. K.S. Rubber Industries);

(13) 1985-PTC-167 (Richardson Vicks Inc. v. Medico Laboratories);
(14) 1999-PTC-(19) 507 (Cox Distillery v. McDowell & Co. Ltd.)
(15) 1999 IVAD Delhi 967 (Allied Nippon Ltd. v M/s Allied Motors)
(16) 1997 (3) Mh.L.J. 914 (Burroughs Wellcome (India) Ltd. v. Uni-sole Pvt.
Ltd.)
(17) 2009 (2) Mh.L.J. 302 (Deccan Bottling and Distilling Industries Pvt. Ltd. v.
Brihan Maharashtra Sugar Syndicate Ltd., Nasik)
(18) AIR 1963 SC 449 (Amritdhara Pharmacy v Satya Deo Gupta)
(19) 1984 PTC 66 (Glaxo Operations UK Ltd. v. Samrat Pharmaceuticals).
16) The cases on which reliance was placed by both the sides are mostly on
the provisions of the Trade Marks

Act 1958. Not much change has

taken place in the provisions of this old Act due to introduction of the
Act of 1999. It can be said that in view of the interpretation of the
terms, definitions done by the Hon'ble Apex Court the definitions are
made more illustrative and exhaustive in the new Act. Provision of
section 29 of the new Act is more exhaustive in nature than the old
section and it illustrates as to how there may be infringement of
registered trade mark.
17) In the case of Parle Product (cited supra) the Apex Court has quoted and
considered the observations made by it in previous case reported as
AIR

1965

SC

980

(Durga

Dutt

v.

Navratna

Pharmaceuticals

Laboratories). The observations are in para 7 of the report and they are
as under :-

"While an action for passing off is a Common Law remedy being in substance
an action for deceit, that is, a passing off by a person of his own goods
as those of another, that is not the gist of an action for infringement.
The action for infringement is a statutory remedy conferred on the
registered proprietor of registered trade mark for the vindication of the
exclusive right to the trade mark in relation to those good (vide Section
21 of the Act). The use by the defendant of the trade mark of the
plaintiff is not essential in an action for passing off, but is the sine qua
non in the case of an action for infringement."
"In an action for infringement, the plaintiff must, no doubt, make out that the
use of the defendant's mark is likely to deceive, but where the
similarity between the plaintiff's and the defendant's mark is so close
either visually, phonetically or otherwise and the Court reaches the
conclusion that there is an imitation, no further evidence is required to
establish that the plaintiff's rights are violated. Expressed in another
way, if the essential features of the trade mark of the plaintiff have
been adopted by the defendant, the fact that the get-up, packing and
other writing or marks on the goods or on the packets in which he
offers his goods for sale show marked differences or indicate clearly a
trade origin different from that of the registered proprietor of the mark
would be immaterial; whereas in the case of passing off, the defendant
may escape liability or he can show the added matter is sufficient to
distinguish his goods from those of the plaintiff."

18) The case of Heinz Italia v. Dabur India (cited supra) involved use of both
the Trade Mark Act and Copy Right Act and facts of the reported case
were more clear and different. In the present matter product is
different and due to its nature, different approach is required.

19) In the case of Ramdev Food Products (cited supra) the Apex Court has
quoted and considered the law on passing off at paragraphs 88 to 90
and those are as under :"ESSENCE OF PASSING OFF ACTION
88. In a case of this nature, the test for determination of the dispute would
be the same where a cause of action for passing off arises. The
deceptively similar test, thus, would be applicable herein.
89. The doctrine of passing off is a common law remedy whereby a person is
prevented from trying to wrongfully utilise the reputation and goodwill
of another by trying to deceive the public through passing off his
goods.
90. In Kerlys Law of Trade Marks and Trade Names Supplement pages 42
and 43, paragraph 16-02, the concept of passing off is stated as
under:"The law of passing-off can be summarised in one short general proposition
no man may pass off his goods as those of another. More specifically, it
may be expressed in terms of the elements which the plaintiff in such
an action has to prove in order to succeed. These are three in number.
Firstly, he must establish a goodwill or reputation attached to the goods or
services which he supplies in the mind of the purchasing public by
association with the identifying get-up (whether it consists simply of a
brand
name or a trade description, or the individual features of labelling or
packaging) under which his particular goods or services are offered to
the public, such that the get-up is recognised by the public as
distinctive specifically of the plaintiffs goods or services.

Secondly, he must demonstrate a misrepresentation by the defendant to

the public (whether or not intentional) leading or likely to lead the
public to belief that the goods or services offered by him are the goods
or services of the plaintiff.
Thirdly, he must demonstrate that he suffers or, in a quick time action, that
he is likely to suffer damage by reason of the erroneous belief
engendered by the defendants misrepresentation that the source of
the defendants goods or service is the same as the source of those
offered by the plaintiff..."
20) The observations made by the Apex Court in the cases cited supra show
that few basic things need to be established for getting the relief which
the plaintiff wants. If provision of section 29(2) of the Act is compared
with the definition of term "deceptively similar" given in section 2(h) of
the Act, it can be said that the definition itself is incorporated in section
29(2) of the Act in effect. The definition given in section 2(h) runs as
under :
"2. (h)"deceptively similar",-- A mark shall be deemed to be deceptively
similar to another mark if it so nearly resembles that other mark as to
be likely to deceive or cause confusion".
21) The definition shows that the trade mark if it is the word it should be so
nearly resembling to the trade mark of defendant that possibility of
deception or causing confusion in the mind of purchaser is created.
22) The question whether the word mark used by the plaintiff and the
defendants nearly resemble or they do not resemble cannot be
answered by generalizing the things. The approach needs to be
different for different

kinds of goods. In the case reported as AIR 1982 Delhi 308 (Essco Sanitations
v. Mascot Industries) the factors which can be considered to determine
whether particular trade mark is deceptively similar to another trade
mark or not, are enumerated and they are as under :(i) the nature of marks;
(ii) the degree of resemblance between the marks (phonetic, visual as well as
similarity in idea);
(iii) the nature of goods in respect of which they are used or likely to be used
as trade marks;
(iv) the similarity in the nature, character and purpose of the goods of the
rival traders;
(v) the class of purchasers who are likely to buy the goods bearing the
marks, their level of eduction and intelligence, and the degree of care
they are likely to exercise in purchasing the goods;
(vi) the mode of purchase of the goods or placing orders for the goods; and,
(vii) any other surrounding circumstances.
23) There cannot be uniform criteria, factors and so each case needs to be
decided on the basis of facts and circumstances of that case. In the
case reported as 1969 (2) SCC 716 (F. H. Roche And Co. v. G. Manner
And Co.) on which reliance was placed by the learned counsel for the
appellants, question had arisen as to whether the word "Dropovit" was
deceptively similar to the word "Protovit". It was held that there was no
similarity between two words. It was held that terminal syllable "VIT"
was both descriptive and common in the trade and it appears in almost
all vitamin preparations. It was held that the word "Dropovit" can be

treated as invented word because this word is not descriptive if

considered in entirety. It was held that there was difference in the
pronunciation of the aforesaid two words and so they were wholly
dissimilar.
24) The word JEEWANDROP from the present matter can be dissected in
two parts viz. "Jeevan" and "drop". "Jeevan" is dictionary word used
both in Marathi and Hindi and its meaning is "life" for both Marathi and
Hindi language. The word "drop" is also dictionary word though in
English and it is used to describe small portion of liquid (not
necessarily water). On the other hand, the word "JALDROP" can be
dissected in two parties viz "Jal" and "drop". The word "Jal" is dictionary
word for both Marathi and Hindi language and its meaning is water.
Thus there is no similarity in the two words like "Jal" and "Jeevan" in
appearance, in pronunciation or in meaning.
25) In the present matter record is produced by the appellants to the effect
that the word "Jeevan" has been used separately and also in
combination with other words including English word for many years in
class 5 of the goods. Recently for similar product of water disinfectant,
trade mark is registered as NIRMAL JIVAN DROPS DRINKING WATER
DISINFECTANT". This application was made by the proprietor of this
trade mark on 19-5-2011 though it was registered in the year 2015. It
is registered as water disinfectant and in the background of the words
there are drops falling in pool of water.

26) Both the plaintiff and defendants are selling chemical substance (Sodium
Hypochlorite Solution). They have not invented this substance and they
are not claiming that they have discovered the property like
disinfectant. They claim to be manufacturer but anybody can

manufacture and market such chemical substance by giving own name

to the substance and by describing it as water disinfectant. The
manner of use of the substance is also not different as few drops of this
substance are required to be used as disinfectant for particular
quantity of water.
27) For the purpose of proving the infringement of registered trade mark, it
was necessary for the plaintiff to show that there is over all similarity. It
can be said that there are more dissimilarities than the similarities.
Idea behind the two products may be the same but that cannot make
much difference in the matters involving such substance.
28) If the bottles of the plaintiff and the defendant are seen one after the
other, it can be said that the bottles of the defendants are appearing
sky blue in colour due to colour used on the labels. Bottles of the
plaintiff are appearing white. On the bottles of the plaintiff the word
'JEEVANDROP" is used in English in blue colour and the word is
overlapped by device, a drop of water. On the other hand, the
defendant has used the drop of water as alphabet "O" in the word
"drop". This drop is appearing as falling in pool of water. No such pool
of water is in existence on the label of the plaintiff. The plaintiff has
described the substance as "Drinking Water Disinfectant" and the
defendant has described the substance as "Unique Water Disinfectant".
On the bottles of the plaintiff there is a blue colour strip at bottom and
on it the aforesaid description of the substance is written but such strip
has green colour on the bottles of the defendants. Names of
manufacturers are different and on the bottles of the defendant the
name of agency marketing the product is also there when there is no
such name on the bottles of the plaintiff. Manufacturer of the bottle of
plaintiff is shown from Newasa (Maharashtra) and the manufacturer of
the defendant is shown from Ahmedabad (Gujarat). Trade mark of the

plaintiff is shown as registered by mark "R". As against the trade mark

of the defendant, the words "TM" are written to show that the trade
mark is under process of registration. The bottles of the defendant
show that there is certification obtained of ISO and its number is
written on the bottles of the defendant. No such certificate is obtained
by the plaintiff. Only on one bottle of the defendant, which was shown
to be manufactured on 31-12-2014, there is blue strip at the bottom
over which the description of the substance is given and on this bottle
the word "JALDROP" was written in blue colour when on other bottles
this word is written in red colour by the defendant. In the para of cause
of action of the plaint, the plaintiff has contended that he learnt about
the product of the defendant in March 2015 and cash memo of a bottle
of year 2015 is produced by plaintiff. Learned counsel appearing for
the defendants made submission that the defendants are not
manufacturing or marketing the bottles like the bottle shown to be
manufactured on 31-12- 2014. Written undertaking is also filed in that
regard. When plaintiff has registered the word "JEEVANDROP" as trade
mark and it is not as a devise and when there are aforesaid
circumstances, it is not possible to infer that there is infringement of
the registered trade mark of the plaintiff.
29) In view of the law already quoted, the defence of difference in trade
mark is more forceful in passing off action. The defendant has shown
that the matter on his label is different from the matter appearing on
the label of the plaintiff. It is already observed that appearance of the
bottle of the defendant is different and the appearance is sufficient to
distinguish the goods of the defendant from the goods of the plaintiff.
Further for giving the relief in action of passing off, misrepresentation
needs to be made out by the plaintiff. The aforesaid circumstances do
not make out the case of calculated misrepresentation. It is already
observed that a simple chemical substance is being sold by both sides

by giving different names. The aforesaid circumstances show that the

defendants have their own network of distribution and sale when on
the bottles of the plaintiff even name of distributor is absent. In such a
case, prospective purchaser is not illiterate person. The customer
would purchase the chemical substance, sodium hydrochloride solution
as it is to be used as drinking water disinfectant. Like ALAM or
potassium permanganate such substance can be ordered. The name of
the manufacturer or even distributor would not make much difference
for the purchaser. Thus, there is no requirement of possibility of
misrepresentation for selling such product.
30) The learned counsel for the plaintiff, respondent submitted that the trial
Court has used the discretion and so it is not desirable for the
appellate Court to interfere in such order. This submission is not
acceptable in the present case as the trial Court has not considered the
aforesaid peculiar circumstances of the present matter. This Court
holds that interference is warranted in the present matter. Granting of
temporary injunction in such case is serious matter and it prevents the
manufacturer from manufacturing the substance and from marketing
it. Such action comes in the way of fair competition. It appears that the
trial Court was influenced due to circumstance like registration of trade
mark by plaintiff and the circumstance that in the past defendant No.2
was working as distributor in respect of the same product of the
plaintiff. There is clear possibility that the plaintiff has got frustrated as
his sale must have come down after removal of defendant No.2 from
his own usiness. The defendants have every right to manufacture and
sell such substance. No strong prima facie case is made out by the
plaintiff for getting relief of temporary injunction. It appears that the
trial Court had granted ex parte relief on the basis of aforesaid
contentions even when there was no record with the plaintiff to show
the loss sustained by him and to make out the case of deceptive

similarity. In view of the peculiar facts and circumstances of the

present case, this Court holds that no relief of temporary injunction
can be granted in favour of the plaintiff. In the result, following order :31) The appeal is allowed. The order made by the trial Court on temporary
injunction application is set aside. The application is rejected. Interim
relief is vacated. Civil Applications are disposed of.
32) The learned counsel for original plaintiff submitted that interim relief has
been in existence for about five months and he wants to challenge the
decision
of this Court. He wants extension of interim relief. 33) Interim relief is to
continue for the period of one month from today. Sd/-

(T.V. NALAWADE, J. )