1. The defendant has come up in appeal against the order of the learned Additional District Judge, Ludhiana dt. Feb. 2, 1989 whereby the application under O. 39, Rr. 1 and 2, C.P.C. filed by the plaintiff has been allowed and the defendant, his agents, servants, stockists, dealers, representatives and all other persons acting for and on his behalf have been restrained from manufacturing selling, offering for sale or otherwise dealing in deodorants under the trade marks. 'Lion Elephant' or 'Double Elephant' brands or under any other trade mark identical with or deceptively similar to the trade mark of the plaintiffs 'Elephant' brand or doing any such other act amounting to the infringement of the plaintiff's trade mark.
2. The respondent (hereinafter referred to as the 'plaintiff) filed a suit against the appellant (hereinafter referred to as the 'defendant') for a permanent injunction restraining the defendant, their servants, agents, stockists, dealers, representatives etc. from manufacturing selling and offering for sale or otherwise dealing in deodorants and disinfectants or other goods of similar descriptions under the trade marks 'Lion Elephant' and/ or 'Double Elephant' brands or under any other trade mark identical with or deceptively similar to the plaintiff's trade mark 'Elephant brand', which is registered under No. 335156 under the Trade and Merchandise Marks Act, 1958 (for short, the Act).
3. The defendant denied the allegations made in the plaint. He contended that he was using 'Lion Elephant' and 'Double Elephant' as their trade marks for the product deodorants and disinfectants sold by them and the plaintiff was using the trade mark 'Elephant' Brand on the deodorants sold bythem. Along with the suit, an application under 0. 39, Rr. 1 and 2 read with S. 151 of the Civil P.C. was filed by the plaintiff for grant of an ad interim injunction.
4. The learned trial Judge found that the plaintiff had a prima facie case and a balance of convenience was also in their favour and, on the circumstances, granted the ad interim injunction. The defendant has come up in appeal against the order of the trial Judge.
5. During the pendency of the appeal, an application under 0.41, R. 27, read with Section 151, Civil P. C. (Civil Misc. No. 3338-C. II of 1989) was moved by the defendant for placing on record the certificate issued by the Registrar of Trade Marks dt. Feb. 15, 1989, registering the trade mark 'Lion Elephant' under No. 418474 in respect of the deodorants sold by him. The certificate ought to have been produced before the trial Judge. In the circumstances of the case, 1 permitted the certificate to be placed on record vide order dt. Sept. 27, 1989.
6. Counsel for the plaintiff did not choose to adduce any evidence in rebuttal.
7. It is well settled that no one is entitled, to represent his goods as the goods of some-body else and no man is permitted to use any mark, sign, or symbol device or other means whereby without making a representation himself to the purchaser who purchases from him, he enables such person to tell a lie or to make a false representation to somebody else who is the ultimate customer. In each case, it is to be seen whether the name or description given by the defendant to his goods is such as to create a likelihood that a substantial section of the purchasing public will be misled into believing that his goods are the goods of the plaintiff. The main question is not the intention of the defendant in using certain words but the probable effect of such action on the minds of the customers. The Court has to trust to its own perception into the mind of the reasonable man. In the words of Lord scarman 'balance is to be maintained between the protection of a plaintiffs' investment in his product and the protection of free competition' on which side the balance lies is to beseen in the facts and circumstances of each case.
8. In the instant case, the counsel for the defendant produced the products manufactured by the parties bearing the respective trade marks and wanted me to examine both the products and thereafter come to a conclusion that the purchasers will be misled into believing that his goods are the goods of the plaintiff. I examined both the products and found that they were dissimilar and a reasonably prudent buyer is not likely to be misled. Furthermore, the trade mark has been allotted to the defendants's product by the Registrar of Trade Marks under the Act, The defendant is the registered proprietor of the trade mark 'Lion Elephant' and has exclusive right to the use of trade mark in relation to the goods in respect of which the trade mark is registered. Issuance of any interim injunction in favour of the plaintiff will amount to depriving the defendant from using the trade mark on his product which has validly been granted under the Act by the Registrar of Trade Marks.
9. For the reasons above mentioned, the appeal is allowed and the order of the learned trial Judge dt. February 2, 1989 is set aside. However, it is directed that the suit should be disposed of within six months. The observations in this order is only for the purposes of disposing of the application under O.39, Rr. 1 and 2, Civil P. C. and in no event it should be taken to be an expression of opinion on the merits of the case. The parties shall bear their own costs,
10. Appeal allowed.