M.S.A. Siddiqui, J.
1. This is appeal from the order dated 30-3-1991 passed by the ADJ, Delhi in Civil Suit No. 754/1990 under Order 39, Rules 1 & 2 CPC restraining the appellant/plaintiff from manufacturing selling offering for sale the face cream and cosmetics under the trade mark name of 'clear fresh' or 'clear face' of any other deceptively similar trade mark.
2. The facts are as follows the appellant/plaintiff filed a suit for rendition of account and for permanent injunction against the respondents restraining them from manufacturing selling offering for sale, directly or indirectly dealing in cosmetics or any other cognate or allied goods under the trade mark 'Real' or any other deceptively similar trade mark or from doing any other thing as is likely to lead to passing off its goods and business as the goods and business of the plaintiff. Along with the plaint the appellant also filed an application under Order 39, Rules 1 & 2 CPC. On 22-5-1990, learned trial Judge granted ad interim injunction in favor of the appellant. The suit was resisted by the respondent. The respondent No. 2 filed the written statement and a counter claim. The respondent No. 2 also filed an application under Order 39, Rule 4 CPC for vacating the ad interim injunction granted by the trial court. Along with the counter claim, the respondent also filed an application under Order 39, Rule 1 & 2 CPC for a temporary injunction restraining the appellant from manufacturing, selling, offering for sale or otherwise dealing in the cosmetics goods under the trade marks 'clear fresh' and 'clear face' or under any other identical and/or similar trade mark/carton as those of the respondent No. 2. By the impugned order, the learned trial Judge vacated the ad interim injunction order dated 22-5-1990 and allowed the respondents application for interim injunction. Feeling aggrieved, the appellant/plaintiff has preferred this appeal under Order 43, Rule 1 CPC.
3. It is well that the granting of ad interim injunction is purely within the discretion of the Court but the discretion has to be exercised in accordance with the sound judicial principles. Ordinarily, it is not open to appellate court to substitute its own discretion for that of the trial court but if it appears to the appellate court that in exercise of its discretion the trial court has acted capriciously or has adopted an unjudicial approach then it would be open to the appellate court to interfere with the trial court's discretion. The principles which govern the exercise of the discretion are that the party claiming ad interim injunction should establish that it has a prima facie case, that if it is not granted it is likely to suffer a greater mischief and that interference by the court is necessary to protect it from an irreparable injury.
4. The impugned order has been assailed on the ground that the learned trial court has erroneously exercised its discretion by granting a temporary injunction against the appellant. It is significant that the appellant has filed the suit for perpetual injunction against the respondents restraining them from infringing the plaintiff's registered trade mark 'Real'. It is stated in the written statement that the respondents had never adopted or used the alleged trade mark 'Real' of the appellant in respect of their products of cosmetics. The respondent No. 2 has specifically pleaded in para No. 1 of the written statement that '...... The defendant No. 2 was shocked md surprised to see that the plaintiff could go to such an extent that he has manipulated and placed on record of the Hon'ble Court a false alleged carton of defendant No. 2 with the additional of word 'Real' which has been got prepared by the plaintiff himself. The said alleged carton has never been used by the defendant No. 2 and it has been done so dishonestly and is a fraud on the part of the plaintiff to obtain the ex parte ad interim injunction order against the defendants ........' These allegation of facts have not specifically been denied by the plaintiff in the replication filed by it. In this view of the matter, the learned trial court was perfectly justified in vacating the ad interim injunction order dated 22-5-1990, which was obtained on the specific plea that the defendant No. 2 had been infringing the plaintiff's registered trade marks 'Real' and passing off his goods and business as the goods and business of the plaintiff. The defendant No. 2 has not stacked his claim with regard to the said trade mark of the plaintiff.
5. On a careful perusal of the pleadings, it appears that the main dispute, between the parties is with regard to use of words 'Clear Fresh' by the defendant No. 2. In para No. 13 of the replications, the plaintiff has unequivocally stated that he has no objection with regard to this use of words. 'Clear Fresh' by the defendant No. 2 in relation to has cosmetics product. It is beyond the pale of controversy that Madan Lal Jain, Proprietor of the plaintiff firm M/s. Ravon India Cosmetics and Avinash Kumar Jain, Proprietor of the firm M/s. Fresh Angel Cosmetics are real brothers and the plaintiff firm is the proprietor of the registered trade mark 'Revon'. It is stated in para No. 4 of the plaint that the plaintiff has products are being sold under the trade mark 'Ravon' along with various slogan such as 'clear fresh' 'time less', 'midair' and various other slogans. It is nowhere pleaded in the plaint that the plaintiff is proprietor of the registered trade mark 'Clear Fresh' or 'Clear Face' or that the plaintiff has been selling its cosmetics products under the trade name 'Clear Fresh' or 'Clear Fresh' which acquired great reputation and goodwill among the members of the public. On the contrary, the case of defendant No. 2 is that the defendant firm has been using the trade marks 'Clear Fresh' and 'Clear Face' in relation to their cosmetics products since 1-1-1989 and 1-4-1984 respectively and by reason of sales and publicity its products have become popular in the market and by reason of distinctive get-up and colour scheme, the tubes and the cartons have come to be associated by the trade and the members of the public as the products of the defendant firm. It is stated in the counter claim filed by the defendant No. 2 that in the month of September 1989, the plaintiff had wrongfully adopted the defendant's trade mark 'Clear Fresh' in relation to its cosmetics product and it has also adopted the distinctive get up and colour scheme of the collapsible tubes and cartons with a view to pass off of its goods as and for the goods of the defendant No. 2. It is further stated that the plaintiff and imitated the get up, colour combination and the description of defendant's products in order to cause confusion and deception and to earn profits in an illegal manner. It is also stated in the counter claim filed by the defendant No. 2. That the defendant is holding a license for manufacturing and marketing the said products from the Drugs Controller, Delhi Administration under the said trade mark 'Clear Fresh' and 'Clear Face'. A photostat copy of the said license has been filed an support of the said contention. Section 18(c) of the Drugs and Cosmetics Act prohibits manufacture for sale or distribution of any cosmetics except under and in accordance with the conditions of a license issued under the Act.
6. The defendant No. 2 has filed a copy of the license granted to the defendant No. 2 by the Drugs Controller for . and others v. Usha Television Ltd. 1987 PTC 240; Super Seals India (Pvt.) Ltd. v. Mautri Bros 1996 PTC 341; M/s. K. B. Heralal & Sons v. M/s. Kumar Ind. and another 1985 Arb. LR 265. The Fair deal Corporation (Pvt.) Ltd. v. Vijay Pharmaceutical 1985 PTC 80 and Jhonson & Jhonson and another v. Christine Heden India (P) Ltd. and another 1988 PTC 39.
7. It is pertinent to note here that in the present case the defendant No. 2 claims passing off by the plaintiff of his product as and for the product of the defendant No. 2 on the basis of copy of the distinctive get up and colour scheme of the collapsible tubes and cartons by him. The plaintiff is not entitled to represent his product as being the product of the defendant No. 2. Thus, the present appeal concerned solely with passing off and not with the infringement of trade mark or patent rights. In the instant case, in order to succeed in getting an interim injunction, the defendant No. 2 has to establish user of the mark 'Clear Fresh' in point of time than the impugned user by the plaintiff (See Century Traders v. Roshan Lal Duggar & Co. (supra). As stated above, the defendant No. 2 is the prior user of the mark 'Clear Fresh' and as such has acquired a quasi proprietary right to the exclusive use of the said mark. This right is to be protected and the balance of convenience is in favor of the defendant No. 2, who has established a prima facie right to the said mark. The defendant No. 2 is also likely to suffer irreparable injury if the plaintiff is allowed to use similar mark or carton and the tube identical with get up and colour scheme adopted by the defendant No. 2. I, thereforee, see no reasons to interfere with the discretion exercised by the learned trial court in granting interim injunction in favor of the defendant No. 2. I need hardly add that the observations that I have made in this order are only for the purpose of the application for grant of temporary injunction and should not be taken or read as observations on the merits of the case.
8. For the foregoing reasons, the appeal is dismissed. The appellant shall pay costs of this appeal to the respondent No. 2 bear his own and, counsel's fee is quantified at Rs. 3,000/-.
9. Appeal dismissed.