1. This appeal is directed against the order of Additional District Judge, Sanghar, dated 31st May, 1981, refusing to grant a temporary injunction, restraining the respondent from selling wax matches under the mark "Minar" with colour scheme and get up as shown in Annexures D-1 and E-1 to the memo of appeal, in a pending action brought by the appellant to restrain infringement of their trade mark "Shama".
2. The appellant is a manufacturer of wax matches and sell them under the mark "Shama" which is registered under the Trade Marks Act, 1940 in class 34. According to the entries in the register of Trade Marks, certified copy whereof is filed in this appeal the appellant's mark consists of a device of burning candle placed in the middle of a oval shape cup having a base and two handles at its ends. The base cup rests on the ground which is dark red in colour. The registration of the above mark is limited in the particular colour scheme shown in the attached label supplied alongwith the .Certificate issued by the Registrar of Trade Marks. The colour scheme of front label shows dark yellow background with words "Shama" written in bold fashion across the label in dark red colour; the base cup in dark pink colour with black outlines is resting on ground dark red in colour. The candle in the centre of cup is in black and white stripes while its final is in red lines. On the top right hand side of the label there is a small red circle and below it the words "elegant wax matches" are printed in red colour. On the top left side of the label word "Burnico" is printed in a box. The back label carries black background with white stripes all over it and words "Shama" written in a corner on the right side at the top while the words "Burnico" printed on the left corner down below. The respondent who are also manufacturing wax matches, sell their product under the mark "Minar". It is the case of appellant that in the beginning the respondent started using the label with the device of "Minar" on a house top with bushes around it in the background with colour scheme which is yellow in the background with "Minar" and the bushes in blue and white colour, the housetop in light red and the ward "Minar" written across the label in dark green colour as shown' in the label Annexure `D' and `E' to the appeal. The respondent it is-alleged recently changed the colour scheme of their label and adopted the colour schema used by the appellant which is dark yellow and red. They allegedly also altered the device of -`Minar" which is now placed on a boat with a housetop. This change in the device and the colour scheme it is claimed by the plaintiff was mad--e by the respondent with the object of bringing their mark closer in resemblance to the mark of the appellant. The offending label used by the respondent is produced along with the memo. Of appeal as D-1 and E-1. I may mention here that at the hearing of this appeal Mr. Lqbal Kazi, the learned counsel for the appellant stated before me that the appellant will have, no objection to the use of label in the Colour scheme and the device as was previously used by the respondent (Annexures 'D' & --E') until decision of the suit and that this prayer for a temporary injunction pending decision of suit may be treated as restricted only to the use of the label in the colour scheme and device as shown in Annexures 'D-1 and E-1' by the respondent. The learned counsel for the respondent, how--ever, did not agree to this offer of Mr. Kazi.
3. It is not disputed before me by the learned counsel for the respondent that prior to the use of label D-1 and E-1 the respondent were using the label Annexures 'D' and 'E'. On a visual comparison of the registered mark of the appellant as shown in the label 'C' and 'C-1' with the respondent's mark as shown in D-1 and E-1 it cannot be disputed that by adoption of the present colour scheme more resemblance has been created between the labels of respondent and appellant that it was before when the respondent were using the label 'D' and 'E'. The present colon scheme of the label of respondent and the manner and style in which the words "Minar" are written thereon are almost identical to that of appellant. The present device of ' Minar' which is now on a boat with a housetop is nearer in resemblance to the device of appellant than it was before as shown in Annexures 'D' and 'E'. Both the respondent and the appellant are admittedly engaged in the same trade and are manu--facturers of the same items. The items sold by them are purchased by people of all classes and ages and is an item of daily use. It also cannot be overlooked that the majority of the population in our country lives in villages and small place where standard of intelligence and literacy is not very high. The test of an unwary purchaser, therefore, in this case, has to be applied keeping in view the nature of the customer, the article in question and the intelligence of the likely purchaser. The Court below refused to grant injunction mainly on the ground that dissimilarities in the two labels are more than the similarities and that the colour scheme adopted by the appellant in their label is common to that trade. No doubt both similarities and dissimilarities are to be taken into account while considering the question of infringement of trade mark but it should be borne in mind that while making comparison of the two articles in Court the Judge has the opportunity of visually looking at both the articles side by side at a time while an unwary purchaser while looking at the article at the time of its purchase may not have this opportunity available to him. The unwary purchaser would purchase the article with the recollection which he may have in his mind about the mark which may some time be faint. Such an unwary purchaser is, therefore, not expected to examine the mark so critically while purchasing it. The dis--similarities can be compared only when both are available at a time and therefore it is the similarities in the resemblance of two articles which are likely to influence more a unwary purchaser in such circumstances. The articles which is subject-matter of dispute is an article which is purchased by the literate and illiterate and people in the town and villages alike. On a careful comparison of the two articles and their similarities and dissimilarities I am of the view, (keeping in view that the majority of the purchasers of this article will be from among those class of society where standard of education and intelligence is not very high.), I am tentatively of the view that an unwary purchaser may be confused and Induced to purchase the goods of respondent as goods of appellant if he sees the one in the absence of other. Mr. Kizalbash, the learned counsel for the respondent very strongly urged before me that the colour scheme used by the appellant is commonly used in this trade and therefore the appellant cannot claim an exclusive right to use the same. This contention of the learned counsel cannot be determined at this stage when only application for grant of temporary injunction is considered by the Court. This contention can be examined only when the parties had led their evidence and the Court has sufficient material before it to give a finding in that regard. For the present it is only to be seen whether the use of the p mark by the respondent in its present form is likely to cause deception or confusion in the trade. It may also be mentioned here that section 7 of the Trade Marks Act provides that where a mark is limited wholly or in part to one or more specified colour then such colour limitation is to be taken into consideration while deciding the distinctiveness of a trade mark. From the certificate produced by the appellant it is proved that the mark of the appellant is registered subject to the particular colour scheme as shown in the label attached with it. Therefore, while considering the distinctiveness of the mark of appellant at this stage the colour scheme has to be taken into consideration. I am therefore satisfied that the appellant has succeeded in making out a prima facie case for grant of a temporary injunction. The appellant is prima facie the registered proprietor of the mark and, therefore, he has the exclusive right of its user. The balance of convenience and the likelihood of an irreparable injury in these circumstances therefore, also lies in his favour. I accordingly accept the appeal, set aside the order of trial Court and grant temporary injunction restraining the respondent from using the mark of "Minar" with the device and colour scheme as shown in labels Annexures 'D-1' and 'E-1'. However, as the learned counsel for the appellant had stated at the hearing of this appeal that the appellant will have no objection to the use by the respondent of the label Annexures 'D' and 'E' during the pendency of the suit. 1 clarify that the use by the respondent of the label Annexures 'D' and `E' to the appeal till the disposal of the suit will not be covered by the injunction granted by me. There will be no order as to costs.