This appeal is directed, against the judgment dated 26-6-1992 through which the trial Court accepted the application of the respondent for issuance of temporary injunction during the pendency of the suit for a decree of permanent injunction.
2. , In the suit it was alleged by respondent No. 1 that it was manufacturing Soap under the Brand name "Lifebuoy" which was a registered trade mark under the Trade Marks Act, 1940, which was enjoying good reputation and goodwill in the Market. According to them the appellant had also started fraudulently selling "Telephone Soap" in packing deceptively similar and in a same colour scheme in order to spoil plaintiff's goodwill and injure commercial reputation of its product which was infringement of the trade and property mark and also amounted to passing of their goods as goods of the plaintiff. Alongwith the suit an application was filed for issuance of temporary injunction to restrain the appellant during the pendency of the suit from infringement of the plaintiff trade and property mark and from passing their goods in the rap deceptively similar to that of plaintiff's trade mark.
3. The trial Court after considering the material placed before him and in particular the two pieces of the soap being manufactured and sold by both the parties in their raps, held that the rap of the soap of the appellant was in such a colour scheme and get up similarity to that of the respondent on account of which an ordinary illiterate customer could very well be misled, as such, it was found to be a prima facie case of passing of goods by the appellant as those of the plaintiff as such apart from a case of infringement of trade mark of the plaintiff a case was also prima facie made out under section 20(2) of the Trade Marks Act, and the application was accepted and temporary injunction issued through order dated 29-6-1992 which has been assailed in this appeal.
4. Learned counsel for the appellant argued that from the certificate issued by the concerned authorities registration of trade mark "Lifebuoy" it is manifest that the same was not registered in the name of the plaintiff-firm, as such, the plaintiff being not the proprietor of the said trade mark could not be held to have prima facie case in his favour to maintain the suit and issuance of temporary injunction. He also maintained that on the rap of the soap of the appellant the picture of Telephone in black colour had been visibly given due to which there was vast difference between the two raps sufficient to distinguish the product of the appellant from the respondent. He also argued that in the impugned order observations on the merits of the case have been made which amounts to final expression of opinion which if maintained would prejudice the trial of the suit and prejudging the merits of the case.
5. Learned counsel for the respondent submitted that the plaintiff under an agreement from the proprietor/holder of the trade mark was authorised to use it about which evidence shall be produced during the trial. He maintained that there was no dispute that the appellant had been manufacturing Lifebuoy Soap for the last number of years which was sufficient to establish prima facie case in his favour and his application could not be thrown out that at present he did not produce the said agreement authorising him to use the said trade mark.
6. The argument has force. The respondent shall certainly produce all the evidence entitling him to use the said trade mark. Mere fact that the trade mark of the appellant had also been registered under the Trade Marks Act, would not entitle him to use the same if it amounted to infringement of trade mark of the plaintiff. I have also examined the raps of both the soaps manufactured by the parties and find that though there may be voice difference and picture of Telephone appears in the trade mark of the appellant but the dispute has to be decided considering over all get up of both the trade marks. When examined I also find that prima facie there is close similarity as regards colour scheme and other features of both the trade marks, therefore it was rightly held that prima facie case existed in favour of the respondent and it was respondent who was to suffer irreparable loss in case the appellant was not restrained from infringing the trade mark of the respondent and passing his goods as goods of the respondent during the pendency of the suit as the loss which has to occur to the business reputation of the respondent was not I measurable in terms of money.
7. As regards the objection that the trial Court expressed the opinion regarding merits of the case, it may be observed that the assessm ent made by the trial Court about merits of the case is tentative and meant only for the purpose of disposal of the application of temporary injunction and the same does not amount to expression of final opinion regarding merits of the case which shall be decided on the basis of evidence to be produced in the suit.
8. For the foregoing reasons the impugned order does not suffer from any legal infirmity. The appeal has no merits which is accordingly dismissed with no order as to costs. The trial Court is, however, directed to dispose of the suit before 30-9-1993 positively. The next date fixed in the suit is 4-5-1993 to await the decision of this appeal. The parties are directed to appear before the trial Court on the said date. Needless to say that the suit shall be decided after considering the evidence to be produced by the parties uninfluenced by the opinion recorded or observations made in the impugned order and in this order on the merits of the case.