JUDGMENT
N.G. Nandi, J.
1. By this IA the defendant states that the plaintiff refused to show the bigger carton of the trade mark ‘ACME’, printed materials, stickers, different printing plates/printing devices with which cartons were prepared.
2. It is stated by the counsel for the plaintiff that as per the writing dated 12.7.1993 given by the defendant, the plaintiff has given inspection of the documents, small carton, one die, bills and that the plaintiff did not have big cartons and stickers in his power and possession at that time and, therefore, not given inspection to the defendant. It is further stated that these bigger cartons and stickers have been produced with the written statement of the counter claim. It is the say of the defendant that in the document shown, some of the documents are fabricated and, therefore, the plaintiff should be directed to file the originals of which the inspection was taken on 12.7.1993. This is not the stage to say whether the documents shown to the defendant are fabricated or not. The basis of relief of the production being the alleged fabrication of the documents, cannot be entertained at this stage since the same would require evidence before reaching the conclusion.
3. In the result, IA does not deserve to be granted and, therefore, rejected with the above statement by the counsel for the plaintiff.
IA 4281/93
4. In this suit for passing off action the plaintiff alleged that the plaintiff has been dealing in business of trouser eye hooks, collar hooks, dress hooks, buttons, buckles and thimbles and tailoring materials etc. under the name and style with the mark ‘ACME’ since 1985; that the plaintiff has applied for registration of mark ‘ACME’. It is alleged that defendant has also been dealing in the same items i.e. trouser eye hooks, collar hooks, dress hooks, buckles and tailoring materials etc. under the mark of ‘LACME’ and that the mark adopted by the defendant is alleged to be deceptively similar and that the defendant has been passing off his goods as that of the plaintiffs. By this IA the plaintiff seeks to restrain the defendant from marketing his items under the mark ‘LACME’ pending the hearing and disposal of the suit.
5. The plaintiff’s carton containing mark ‘LACME’ has been produced at page 26, whereas the carton containing defendant’s mark ‘LACME’ has been produced at page 27. It is true that on both the cartons the trouser hook has been shown in yellow colour; that the word ‘Super’ occurring below the logo. The plaintiff’s logo appears to be ‘TIGER’ whereas defendant’s logo is ‘Bull’. As far as colour combination and the letters are concerned, the same prima facie do not appear to be deceptively similar.
6. It may be appreciated that at page 12 the defendant has produced plaintiff’s carton with mark ‘ACME’ brand containing in white strip in white strip in black letters word “T.M. No. 503988.” In the submission of the counsel for defendant, the plaintiff has hereby attempted to convey that his mark is a registered trade mark. In the submission of counsel for the plaintiff, “T.M. No. 503988” in white strip is the number of the application submitted for registration. Except the bare word of the counsel, there is no prima facie evidence to suggest that “T.M. No. 503988” occurring in white strip at page 12 (Annexure D1) is the number of the application submitted for registration by the plaintiff. The mere look at the carton with “T.M. No. 503988″ in the white strip would create an impression that this is the trade mark number. Had it been an application number, as sought to be contended by the counsel for the plaintiff then the word ‘A’ to denote the application before No.” would have been there. In absence of word ‘A’, as pointed out above, it cannot be said prima facie that No. 503988 is number of application submitted for registration. In the plaintiff’s mark ‘ACME’ at page 26 word TM No. 503988 has been attempted to be read by me with the help of magnifying glass but not possible to read the number clearly and it appears that attempts have been made to remove the same.
7. Thus, it prima facie, appears that the plaintiff got printed number 503988 in white strip to suggests that it is the trade mark number though in fact the plaintiff mark is still not registered and in the submission of the counsel for the plaintiff application for registration is still pending. It need hardly be said that one who wants equity must come with clean hands. In the instant case it prima facie does not appear that the plaintiff has come with clean hands in as much as T.M. No. 503988 in white strip as above stated would convey trade mark number without registration of the plaintiff’s mark with the authority concerned. The plaintiff in my opinion besides the above observations that the defendant’s mark ‘LACME’ does not prima facie appear to be secularly deceptively similar for the reasons stated above, on the ground of having mentioned “T.M. No. 503988” his trade mark number, would not be entitled to ad interim injunction as the equity demands that the plaintiff’s request for ad interim injunction be dismissed.
8. In the result, IA is dismissed.