JUDGMENT
C.M. Nayar, J.
(1) The present application is filed by the plaintiff, under Order 39 Rules 1 and 2 read with Section 151 of Civil Procedure Code, for restraining the defendants, their servants, agents, dealers etc. from selling the carbonated beverages under the trade mark Citra and also from advertising the same till the final disposal of the suit.
(2) Briefly, stated the facts of the case are that the plaintiff is carrying on the business of bottling of carbonated beverages, ready to serve and their concentrate from November 8, 1989, under the name and style of CITRO International Beverage CO. Plaintiff has alleged that the trade mark CITRO/CITRO International in respect of the
(3) The plaintiff has further submitted that it is unlawful for any other person/firm to use the identical/deceptively similar trade mark in respect of the carbonated beverages, ready to serve beverages and their concentrates. The plaintiff came across on May 20,1991, that the carbonated beverage under the trade mark Citra, is manufactured by the defendants. The said beverage came into the market later than the product of the plaintiff. The plaintiff also represented to the defendants to stop the use of the trade mark Citra, which was deceptively similar to their own trade mark known as CITRO INTERNATIONAL. It was subsequently revealed that the defendant no.2 had Filed an application on July 27,1990, in the Trade Marks office on the proposed use of CITRA. The plaintiff contends that the trade mark Citra is deceptively similar to the trade mark CITRO/CITRO International, which is being used by the defendants in respect of the identical goods and there is likelihood of deception and confusion among the public because of the use of the deceptively similar trade mark Citra by the defendants leading to passing off.
(4) The defendants have Filed the written statement in the suit. as well as, reply to the application. In their reply, defendants have stated that their product “CITRA” is a clear lemon-lime beverage, bottled in green colour bottles and sold under the trade name “CITRA” – “SUPER COOLER”. The product was conceived by the defendant no.2 in the year 1984. Defendant no.2 got an application made to the Registrar of Trade Marks, Bombay, for its registration on March 22, 1984, through Shri Dinesh Bhatt, a Senior Executive working with the defendant No.1 M/s Parle Exports Limited, p73 Bombay. The registration number allotted to the said application is 419898. The defendants also caused a search to be made in the office of the Registrar of Trade Marks in the second week of October, 1989, before launching the above said beverage, if any such trade name has been registered and having been informed that there is no such trade name registered, either in the name of “CITRA” or “CITRO” or any other similar name, the defendant no.2 wrote a letter dated December 14, 1989 to their Advertisers M/s Ambience Advertising Private Limited, Bombay, requesting them to prepare a design of the logo for “CITRA” and also prepare art work for design for outdoor advertisements. The defendant no.2 reapplied for the registration of the trade mark “CITRA” on July 25, 1990, which application was duly registered as No. 598686, which application is still pending. The beverage “CITRA” was launched in September, 1990 at Chandigarh, Kanpur and subsequently in all parts in India. The plaintiffs product is only confined to a very small territory i.e. Jodhpur in Rajasthan . The visual comparison of the two bottles would show (i) that the plaintiffs product is “CITRO INTERNATIONAL” with a logo printed on the bottle as well as the crown cap whereas the defendants’ product is sold under the trade name “CITRA” – “SUPER COOLER” printed on both sides of the bottles; (ii) “CITRO International” is bottled in a white bottle whereas p73 “CITRA” is bottled in a green bottle; (iii) the logo of the plaintiff’s product is entirely different from that of “CITRA”; (iv) Plaintiff’s bottle is cloudy whereas Citra is clear colourless beverage; (v) the product of the plaintiff ‘CITRO’ even otherwise has not become so exclusive that the defendants’ product could be passed off as ‘CITRO’ etc.
(5) Learned counsel for the plaintiff has strongly contended that the plaintiff has already established prior user and there is likelihood of deception and confusion. He, however, has admitted that the product is in usage in Rajasthan and he will be satisfied if the temporary injunction is issued against the defendants only in that territory. Reference is made to the judgments in Ruston and Homby Ltd. v. Zamindara Engineering Co. ; Century Traders v. Roshan Lal Duggar and Co. and others ; Usha Intercontinental & others v. Usha Television Ltd. 1986 Arbitration Law Reporter 36 and National Garments, Kaloor, Cochin v.National Apparels, Emakulam, Cochin .
(6) Learned counsel for the defendant on the other hand has argued that the mere alleged actual user of about six weeks earlier is not sufficient to establish that plaintiffs product has created reputation amongst the consuming public and, in any case, there is no likelihood of deception and confusion and the two bottles are not deceptively similar. The prior user of only six weeks by the plaintiff would not be the sole criteria in granting injunction. It is further argued that there is no likelihood of deception and confusion in the minds of public and no interim injunction should be granted on the facts and circumstances of the present case. The defendants have attained the reputation and exclusivity for their product Citra and the marks are also not deceptively similar, which would entitle the grant of injunction to the plaintiff. The defendants had been conceiving the idea of introducing the product in the market in the year 1984 and the plaintiffs are trying to take undue advantage from the popularity of the product Citra which has been launched in most places in the country. The defendants also have no motive to copy or pass off CITRO International as the trade name of “CITRA” – “Super Cooler”.
(7) The basic test as referred in the judgment of the Hon’ble Supreme Court in.Ruston and Homby Ltd. (supra) in a passing off action is as follows: “Is the defendant selling goods so marked as to be designed or calculated to lead purchasers to believe that they are the plaintiffs goods.” In Century Traders (supra), the Division Bench of this Court reiterated the law that if there is a likelihood of the offending trade mark invading the proprietory right, a case of injunction is made out. The authorities cited by the learned counsel for the plaintiff are on the facts and circumstances of those cases and will have no application to the present facts. The bottles have also been produced before me and I have examined the same. To my mind they do not seem to be deceptively similar and would also not cause confusion in the mind of the public. The product of the plaintiff CITRO International is bottled in a white bottle whereas Citra is bottled in a green bottle. The logo of the plaintiff’s product is also different from that of Citra, which has three big colour dots, one in yellow and two in red colours, whereas the logo of CITRO International is engraved in one sheet type logo with a cross.
(8) There is no likelihood of the defendant’s trade mark invading the proprietory right of the plaintiffs product. The test as to likelihood of confusion or deception arising from similarity of marks is, therefore, not satisfied in the present case. The finding is further supported from the careful examination of the two products, which have been produced before me. The tests for comparing the genuine and the infringing marks have been specified by this Court in M/s Anglo-Dutch Paint, Colour and Varnish Works Pvt. Ltd. v. M/s India Trading House , and the same may be reproduced as follows: “THE Court should decide if on first impression the two marks are so similar as likely to cause confusion or deceit, (2) which question should be decided from the point of view of a man of average intelligence having imperfect recollection, (3) if their overall visual and phonetic similarity is likely to deceive or confuse such a man that he may mistake the goods of the defendant for those of the plaintiff and (4) as to who are the persons likely to be deceived and as to what rules should govern the comparison in deciding the existence of resemblance.”
(9) The above tests are not satisfied in the present case. Thus, the plaintiffs, prima facie, have not established infringement and are not entitled to the ad interim injunction prayed for. The plaintiffs shall also not suffer irreparable loss and injury if no injunction is granted at this stage. The balance of convenience is also not in favor of the plaintiffs.
(10) On the facts and circumstances of the case, I find no merit in this application and the same is dismissed accordingly. Nothing herein contained will amount to an expression of opinion on the merits, which may cause prejudice to the parties in the pending suit.
(11) 1.A.NO. 7510/91 stands dismissed.