At, High Court of Judicature at Calcutta
By, THE HONOURABLE MR. JUSTICE SOUMEN SEN & THE HONOURABLE MR. JUSTICE SAUGATA BHATTACHARYYA
1. By consent of the parties, the appeal and the application are treated as on the day's list and disposed of by this order.
2. The appeal is arising out of an ad interim order of injunction dated 6 February, 2020 passed by the learned District Judge whereby the defendant/appellant was restrained from using the trademark ' BENGAL'S PRIDE' on its liquor bottle sold in the locality.
3. On 28 February, 2020, we suggested that the colour of the label used by the appellant should be changed as the present get-up of both the labels containing the respective marks appear to be deceptively similar, insofar as the colour combinations are concerned. However we did not prevent the defendant/appellant from using the mark ' BENGAL'S PRIDE' but we restricted it with regard to the colour combinations of the infringing label produced before us. It appears that better sense had been prevailed and the parties have now agreed that the get-up as proposed by the defendant/appellant with blue colour in the background can be used by the defendant/appellant.
4. In course of hearing, Mr. Ranjan Bachawat, senior Advocate submitting through video conference, has drawn our attention to the infringing label and the changed labels proposed by the appellant and has submitted that the black background has now been replaced with blue and orange. There is no substantial change in the get-up of the two proposed labels out of which the plaintiff has approved blue. We have compared two proposed labels with the infringing label framing the subject-matter of the suit and we find that having regard to the get-up and the colour combinations as proposed now the said two labels are substantially different from the infringing label and can also be used by the defendant/appellant. We direct that the infringing labels having same and similar colour combination and get-up should be immediately destroyed by the defendant/appellant. Mr. Bachawat, in all fairness, submits that about 28,000 (twenty-eight thousand) bottles containing the infringing labels are lying in the godown and has sought for leave to permit them to sell the said bottles with the infringing labels. In view of the fact that the said bottles are still lying in the godown of the defendant/appellant and a single sale might result in a confusion being created, we do not allow such prayer but we allow the defendant/appellant to replace the labels on these bottles with any of the two labels that we have permitted to be used on the said bottles. The two labels, as approved by us, shall be countersigned by the Assistant Registrar (Court) and also by the respective Advocates-on-record of the parties to be kept with the original record.
5. The learned counsel for the parties have submitted that since nothing remained to be decided in the suit, the suit itself may be disposed of the basis of this order.
6. Accordingly, the suit is decreed by directing the appellant to remove the infringing labels and not to deal with their product having the labels of which infringement is claimed and forms subject-matter of the suit and permit the appellant to use labels as approved by us. The order of the learned trial Judge stands modified to the aforesaid
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extent. 7. In view of this order, Excise Department may permit the defendant/appellant to sell 28,000 (twenty-eight thousand) bottles presently lying in the godown of the defendant/appellant with changed label/labels, upon compliance of all other formalities. 8. The department is directed to draw up the decree as expeditiously as possible.