M.L. Jain, J.
(1) The plaintiffs respondents, the Hind Pustak Bhawan claiming to be the same as Hind Pustak Bhandar and Pustak Mahal a partnership concern; filed a suit on 23-12-1982 against the defendants appellants Diamond Publications for permanent injunction, the substance of which is that in April, 1976, the plaintiffs introduced in the market a book with a distinctive title 'Rapidex' English Speaking Gowk published under Pustak Bhandar and Pustak Mahal. The plaintiffs got it registered in 1976 under the Copyright Act, 1957 and also got the trade mark Rapidex registered in December, 1977 under the Trade and Merchandize Marks Act, 1958. They spent 6 to 8 lakhs of rupees by way of advertisement and publicity over it and their total sales ranged between 73 to 83 lakhs during the last two years or so. They brought out its 50th Edition in the years 1982 and named it the 'Golden Jubilee Edition'. The same year the defendants Diamond Publications brought out in the market a rival book entitled 'Diamond' English Speaking Coune. The plaintiffs complained that the defendants have infringed the trade mark and copyright of the plaintiffs. They have also copied the scheme of presentation of the text matter of the said publication of the plaintiffs. The Chapters prepared by the defendants in respect of their book are on the same pattern as that of the plaintiffs. The dishonest adaptation by the defendants is evident from the fact that the design, get-up, * layout and colour scheme has been copied by the defendants in material form. The style of writing words on the title page, the photographic panels and the slogans used by the plaintiffs have also been copied by the defendants. The back page of the infringing book carries an advertisement of the plaintiffs' publication 'Self-letter Drafting Course'. In their reply affidavit in this court, the plaintiffs respondents have further illustrated their case. They state that the similarities in the two publications are most pronounced in the cover page in the following respects: (1) white background, (2) the title on the top in black colour, (3) pattern, style and size of letters of the title, (4) the words Rapidex and Diamond set in inverted commas, (5) artistic short cuts in white and black, (6) spine, (7) the number of letters contained the words Rapidex and Diamond, in English seven and in Hindi five, (8) arrangement of title, (9) device of star, (10) vertical and horizontal stripes, and (11) pictures. Besides, the size and the thickness is the same having 416 pages. The defendants' book, thereforee, is bound to cause confusion and deception and consequently the book of the defendants shall be passed off or is likely to be passed off as that of the plaintiffs' production considering the type of customers and the trade concerned with it. The defendants' profits are the plaintiffs' losses apart from the loss in reputation which cannot be ascertained in terms of money. However, the plaintiffs reserved their right to claim damages separately. They prayed that the defendants be restrained from publishing, printing, selling or offering for sale or otherwise dealing in the said book. They also applied for an ad interim injunction. It was granted ex parte on 23-12-1982.
(2) The learned Addl. District Judge by his order dated 24-1-1983 held that the plaintiffs have a prima facie case and balance of convenience in their favor and if the injunction were not granted, they will suffer irreparable loss, and confirmed the exparte injunction. Hence, this appeal.
(3) I have heard the learned counsel for the parties. There is no infringement of the trade mark. Some Chapters of the offending book are ^ shown to be similar to those of the plaintiffs' book but their earlier editions do not have the same material. There was, thereforee, prima facie no case that any copyright has been infringed or any considerable piracy has occurred. The only question that was agitated and fell for determination is whether the defendants' publication is designed or calculated to lead purchasers to believe that it is the publication of the plaintiffs. In other words, is there any likelihood of confusion or deception arising from get-up, specially the title And docs it amount to passing off The learned Judge below found prima facie that the two publications look similar and there is a positive dishonest act of passing off. But this conclusion does not seem to be correct.
(4) In a case under passing off, the plaintiffs have to prove (1) that they have acquired a sort of secondary trade mark or a quasi-proprietary right to the exclusive use of the get up or the title, that is they are the owner of a reputation and goodwill of substantial value acquired over some length of time or by large sales over a short period in relation to the publication, and (2) that there has been an invasion of that right by misrepresentation, fraudulent or otherwise, that is the title and get-up so resemble as that of the plaintiffs' as to deceive the purchaser into belief that it is the plaintiffs' publication.
(5) With regard to the first question, the plaintiffs claim that the artistic design of the letters in the title is a type of their own. There is no doubt that the words 'Rapidax' English Speaking Course have been written in a certain artistic style in the edition of 1932 but in the earlier editions which were placed before me, they have not used a similar artistic style of writing. It seems to me, thereforee, that it is difficult to say at this stage that the use of a particular design of letters in one edition has become a property of the plaintiffs so as to preclude any other person to use similar type of letters, in spite of the fact that their artistic design was specially got prepared for the book and was something different from the common and universally accepted cast of alphabets.
(6) As to the second question, the plaintiffs have to show that the defendants' product will cause confusion and deception. For that purpose, the two publications should not be placed side by side in order to find out if there are any differences in the design and if so whether they are of such character as to prevent one design from being mistaken for the other. It is enough if the offending publication bears such an overall similarity with the other as would be likely to mislead a person usually dealing with to accept the other if offered to him : see Rustan and Hornby Ltd,, v. Zamindara Engineering Go. : [1970]2SCR222 , and M/a.Jetmull Bhojraj v. The Stale of Bihar and others : [1972]3SCR193 . It is so because the ordinary purchaser of normal memory purchasing with ordinary caution could not be excepted to make a close and careful side by side examination of the two publications : vide Colgate-Palmolive Ltd. and another v. K.F. Pattron (1978) Rpg 635. One article should be seen in the absence of the other. The test is not how many points are similar or dissimilar, but it is the totality of the impression that has to be taken into account. Except in case of statutory copyright, to copy is not to pass off. Similarity of artistic style and content is not sufficient to support an allegation that a purchaser would be persuaded to buy defendants' publication in the belief that it was the plaintiffs' publication. The plaintiffs must show something more than mere similarity which suggests that the publication of the defendants is in fact the publication of the plaintiffs. Will a person then asking for a Rapidex English Speaking Course, but handed over a Diamond English Speaking course mistake the latter for the former It is urged that it will bs so because the get-up of the offending book is similar in several respects stated above. These are matters of fact to be established by evidence. But without attempting to say a final word, it appears to me that it is not enough if both the books have four colours with white background, the words written in a special and particular manner in black colour, the verticle stripes in orange colour and other matter written in Magenta colour. The main controversy for the present relates more to the manner and artistic style in which the title is printed. But names of the plaintiffs and the defendants are prominently displayed on the publications and it is difficult to say that there is a misrepresentation because the dissimilar names convey that the two books are not connected or associated with the plaintiffs. These books will not be purchased by uneducated or semi-educated men and there appears prima facie no likelihood of their purchasers being confused between the rival publications, one Rapidex and the other Diamond English Speaking Course published by two different publishing houses. Having considered the matter, I am not inclined to hold at this stage that there is any right acquired by the plaintiffs in the design or the so-called artistic pattern of the letters contained in the title of their production or there is any likelihood of confusion in the market so as to affect their goodwill or reduce their sales otherwise than by way of fair cometition. I, thereforee, find no prima facie case in favor of the plaintiffs respondents.
(7) It appears to me that if the respondents were able to show a prima facie case of passing off, irreparable injury and inconvenience will almost necessarily follow. But, since there is no prima facie case, they do not seem to be entitled to an interlocutory injunction.
(8) Consequently, I accept this appeal and set aside the impugned order. No costs.
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