Hon'ble Akhtar Husain Khan, J.
(Per: Tarun Agarwala,J.) (Delivered on: 11th July, 2014) This is an appeal under Order 43 Rule 1(r) of the Code of Civil Procedure filed by the defendants against the order dated 31.5.2013 granting an injunction restraining the defendants-appellants from using the "green dot" on the label of the packaging of its product "Zincovit Syrup".
The facts leading to the filing of the appeal is, that the plaintiff filed a suit for permanent injunction alleging that the plaintiff is a copyright and trademark owner of the product "Zincovit", which is a food supplement. The plaintiff contended that the trademark "Zincovit" was originally used by the plaintiff's father Sri K.V.Rana and his family members as far back in the year 1986 when they were running a business in the name and style of M/s S.G. Agencies, which firm was involved in the business of manufacture and marketing of food products and the same is now being continued in the name and style of M/s Hezen Pharmaceutical Ltd. It was contended that the defendant, M/s Apex Laboratories Ltd., which is also a pharmaceutical Company approached the plaintiff in the year 2007 requesting them to manufacture and supply the food supplement to the defendants. An agreement dated 24.8.2007 was entered for a period of two years. The plaintiff contended that they made supplies worth Rs.16 Lacs during the year 2007-08 and Rs.2.20 Crores during the year 2008-09. The plaintiff, under this agreement, was manufacturing food supplement in the name of "Zincovit". The defendants with malafide intention and to cause wrongful loss to the plaintiff started making wrongful claims against the plaintiff alleging that the defendant was the owner of the trademark and copyright of "Zincovit" more particularly in the category of food supplements.
The plaintiff alleged that initially, the defendant stopped the payments as a result the plaintiff filed Original Suit No.15 of 2009 in the court of Senior Civil Judge, Medak District for recovery of dues and also sought an injunction against the defendant from lifting the stock and from interfering in the plaintiff's business. It is alleged that an interim order was granted, but subsequently the same was not extended. It was also contended that the said dispute was with regard to the use of the trademark "Zincovit". It was alleged that the defendants lodged an F.I.R. No.74 of 2009 at Patna against the plaintiff and his Company and managed to get the distributor arrested. Another F.I.R. No.41 of 2009 was filed before the R.C. Puram Police Station wherein the plaintiff's brother was arrested and remanded to judicial custody. Various other F.I.Rs. were lodged by the defendants at various places in India. The plaintiff contended that he is the first user of the copyright of the artistic work "Zincovit" with fruits and device label and has been using it since 1986 whereas the defendant after cancelling the agreement started manufacturing the food supplement "Zincovit Syrup" surreptitiously violating the copyright of the plaintiff.
The plaintiff contended that the defendants had the trademark right of "Zincovit" for manufacture of pharmaceutical products whereas the plaintiff had the copyright of manufacture of food supplement of Zincovit. The plaintiff contended that the ingredients used in both the products are different and that in food products the ingredients used are nutraceutical whereas in the case of pharmaceutical products chemicals are used. The plaintiff contended that they had been consistently dealing with the food supplements and the marks and the artistic work on the label has unique characteristic and features, which shows the fruits, vegetables and the symbol "green dot" on its products referring to multi vitamin mineral supplement evolves a unique design and artistic work, which was being infringed by the defendants. The plaintiff submitted that he applied for registration of Zincovit with fruits and device label under the Copyright Act on 29.12.2009, which was duly registered on 29.3.2011 indicating therein that the plaintiff had been using this copy right since 1986 whereas the defendants had filed an application for issuing of copyright in the year 1997 showing the date of first usage since 1990. The plaintiff contended that the defendant had been caught red handed at several places by the Drug Controller in selling the pharmaceutical products under the guise and garb of nutraceutical products, not only violating the plaintiff's copyright, but also violated the intellectual copyright of the plaintiff, which constituted a criminal offence. The plaintiff contended that the defendants entered into the nutraceutical products in the year 2006 while the plaintiff was in business of nutraceutical products since 1986. The label, which was being used by the defendants, is the registered and original artistic work of the plaintiff. The plaintiff, accordingly, filed the suit praying for a permanent injunction restraining the defendants their assigns, business franchises, licensees distributors and agents from infringing the copyright in the artistic work of "Zincovit" belonging to the plaintiff manufactured under the food licence with green dot over the packaging. The plaintiff also filed an application for grant of temporary injunction based on the same facts.
The defendant-appellants filed their objections to the injunction application contending that respondent No.1 Company was incorporated in the year 1978 for manufacture of pharmaceutical and nutraceutical products. The trade mark "Zincovit" was adopted by the defendant in the year 1988 and that the products were manufactured and sold since 1990. The defendant applied for registration of trademark "Zincovit" under classification-5 which was granted on 16.3.1988 and the same is valid since then.
The defendants contended that the artistic work, namely, "Zincovit" was registered under the Copyright Act on 22.10.1997, which indicated that the defendants were using the said trade mark since 1990. The defendants contended that in the course of their business the defendants appointed various job workers to manufacture and handover the products to them. In the year 2005, the defendants expanded the "Zincovit" products also as a nutritional supplement. In view of the tremendous demand for "Zincovit" products, the defendants entered into a supply of agreement dated 24.8.2007 with M/s Hezen Pharmaceuticals Ltd. represented by its Director, M/s K. Prasad Reddy, who is the plaintiff in the instant suit, wherein the said M/s Hezen Pharmaceutical Ltd. consented to manufacture and supply products under the trade mark "Zincovit" to the defendants. The agreement was for manufacture and supply of multi vitamin mineral supplement known as "Zincovit Syrup". The defendants contended that in February 2009, upon receiving several complaints and, upon investigation, it was found that M/s Hezen Pharmaceuticals Ltd. was not honouring the agreement dated 24.8.2007 and, accordingly, the agreement was cancelled by letter dated 6.2.2009. The defendants contended that the plaintiff had concealed the material facts and that Original Suit No.15 of 2009 was dismissed by rejection of the plaint under Order 7 Rule 11 of the C.P.C.
The defendants further contended that the plaintiff was neither the owner of the copyright nor was the owner of the trade mark of Zincovit food supplement and denied that the trade mark "Zincovit" was originally used by the plaintiff's father or his family members since 1986. The defendant contended that they are absolute owner of the product "Zincovit" and that the defendant Company has the exclusive right to manufacture and sell the Zincovit products. The defendants further contended that the plaintiff filed Original Suit No.402 of 2010 before the Ist Additional District Judge, Ranga Reddy District in State of Andhra Pradesh alleging that he was the prior user of the Zincovit in which he had prayed that the defendants may be restrained from using that trade mark. The Court, by an order dated 18.10.2011 rejected the injunction application holding that the defendants prima facie were the first user of the Zincovit product. The Court found that no document was filed by the plaintiff to show that he was the prior user of the brand name "Zincovit". The Court found that the plaintiff did not produce the sales tax registration, food licence, drug licence, etc. to show prima facie proof that he was the first user of the product. The Court found that the defendants had produced the licence under the Prevention of Food Adulteration Act 19.5.2006 onwards and that the trade mark was registered since 16.3.1988. The Court also found that the plaintiff had approached the defendants for manufacturing the defendants products "Zincovit Syrup" and that the defendants had engaged the plaintiff as an outsourcing Company to manufacture Zincovit food products of the defendants. The defendants further submitted that the appeal filed against the rejection of the injunction application by the plaintiff was also rejected by the Andhra Pradesh High Court. The plaintiff further submitted that after the termination of the agreement dated 24.8.2007, the plaintiff wrote an e.mail dated 2.5.2009 assuring the defendants that they will not produce a single bottle of Zincovit Syrup at their factory and that they will apply for cancellation of the food licence of Zincovit Syrup and withdraw the injunction order which they had obtained. The defendant further contended that they have challenged the registration granted to the plaintiff under the Copyright Act, which is pending consideration. The defendants contended that it is on the basis of the registration dated 29.3.2011 that the plaintiff had started contending that he was the first user of Zincovit and that that his father had been using it since 1986, which fact has not supported by any documentary evidence.
The defendants contended that it has obtained the copyright registration in respect of Zincovit product for the artistic work of the word "Zincovit" since 22.10.1997 by enclosing the artistic pattern showing the fruits and vegetables arranged in a particular manner. The defendants submitted that pursuant to the notification dated 20.12.2001, issued by the Ministry of Health and Family Welfare, it became mandatory for all manufacturers and sellers of vegetable products to put a green colour dot on their packaging. Accordingly, in order to comply the notification issued under the Prevention of Food Adulteration Act, 1954, and thereafter, under the Food Safety and Standard Act, 2006 and the Regulations of 2011 framed therein, it become mandatory to display a green dot on the packaging. The defendants submitted that the definition of word "artistic work" under the Copyright Act does not envisage a green dot, which is required to be placed mandatorily by statute, nor can a green dot become an artistic work. The defendants contended that they are having a copyright registration for its product "Zincovit" from 1987 and that the plaintiff is misrepresenting before the authorities on the basis of the Copyright Registration Act obtained for the same product in the year 2011. The defendants further contended that they filed Original Suit No.304 of 2011 for a declaration before the Additional District Judge Ranga Reddy District against the plaintiff, in which an injunction application was filed praying that the plaintiff should be restrained from manufacturing and selling the Zincovit product. The Court, by an order dated 6.4.2012, issued an injunction restraining the present plaintiff from manufacturing and selling the Zincovit product in the form of drops, syrup, tablets and capsules.
In the light of the stand taken by the defendants the defendants submitted that the original suit filed by the plaintiff before the Varanasi Court was an abuse of the process of law and was liable to be dismissed.
The trial court, after considering the matter issued an injunction restraining the defendants from using the green dot on the label of its product "Zincovit Syrup". The trial court, found that the defendants were using the product since 1990 for prophylactic use with no green dots on its label and that their trade mark was registered for pharmaceutical and medical preparation under classification-5 since 16.3.1988 whereas the plaintiff's copyright of the artistic work of "Zincovit" with fruits devices on the package including green dot has been registered on 29.3.2011, which indicates that the plaintiff was using this copyright since 1988 and, therefore, the plaintiff was the prior user. The Court further found that under the notifications issued under the Prevention of Food Adulteration Act, 1954 as well as under the Food Safety and Standards Act, 2006, the mandatory requirement of placing a green dot on the package was where the product was manufactured and sold after 2001 and that it was not a mandatory requirement for manufactures and sellers who were manufacturing the product prior to 2001. The trial court held, that since the artistic work with green dot was registered in favour of the plaintiff, the said green dot could not be used by the defendants in its product and, consequently, issued the injunction order.
The defendants-appellants, being aggrieved by the injunction, filed the present appeal, which was entertained and an interim order dated 6.6.2013 was passed staying the operation of the impugned order.
We have heard Sri Navin Sinha, the learned Senior Advocate assisted by Sri Kartikeya Saran and Sri M.D.Singh Shekhar, the learned Senior Advocate, assisted by Sri Shad Khan, the learned counsel for the respondents.
Before proceeding further, it would be relevant to take a look at some of the relevant provisions of the Copyright Act, 1957.
Section 2(c) of the Copyright Act defines the "artistic work" to mean:-
"(c) "artistic work" means-
(i) a painting, a sculpture, a drawing (including a diagram, map, chart or plan), an engraving or a photograph, whether or not any such work possesses artistic quality;
(ii)a work of architecture; and
(iii) any other work of artistic craftsmanship;"
Section 13 of the Copyright Act provides that a copyright would subsist throughout India in the following classes of works, that is to say, original, literary, dramatic, musical and artistic works, cinematograph films and sound recording.
Section 14 of the Copyright Act defines copyright to means the exclusive right subject to the provisions of this Act, to do or authorise the doing of any of the following acts in respect of a work or a substantial part thereof and in the case of an artistic work to reproduce the work in any material form including the storing of it in any medium by electronic or other means or depiction in three-dimensions of a two-dimensional work or depiction in two-dimension of a three-dimensional work, etc. Section 16 of the Copyright Act postulate that no person shall be entitled to copyright or any similar right in any work, whether published or unpublished, otherwise than under and in accordance with the provisions of the Act or of any other law for the time being in force. Section 17 of the Copyright Act provides, that the author of a work shall be the first owner of the copyright therein.
Section 44 of the Copyright Act provides, that there shall be kept at the Copyright Office a register in the prescribed form to be called the Register of Copyrights in which may be entered the names or titles of works and the names and addresses of authors, publishers and owners of copyright and such other particulars as may be prescribed.
Section 45 of the Copyright Act provides, that the author may make an application in the prescribed form for entering the particulars of the work in the register of copyrights and in respect of an artistic work, the application would include a statement to the effect and shall be accompanied by a certificate from the Registrar of Trade Marks to the effect that no trade mark identical with or deceptively similar to such artistic work has been registered under that Act. For facility, Section 45 of the Copyright Act is extracted herein under:
" 45. Entries in register of Copyrights. -(1) The author or publisher of, or the owner of or other person interested in the copyright in, any work may make an application in the prescribed form accompanied by the prescribed fee to the Registrar of Copyrights for entering particulars of the work in the Register of Copyrights :
[Provided that in respect of an artistic work which is used or is capable of being used in [relation to any goods of services], the application shall include a statement to that effect and shall be accompanied by a certificate from the Registrar of Trade Marks referred to in [section 3 of the Trade Marks Act, 1999 (47 of 1999)], to the effect that no trade mark identical with or deceptively similar to such artistic work has been registered under that Act in the name of, or that no application has been made under that Act for such registration by, any person other than the applicant.] (2)On receipt of an application in respect of any work under sub-section (1), the Registrar of Copyrights may, after holding such inquiry as he may deem fit, enter the particulars of the work in the Register of Copyrights."
Section 48 of the Copyright Act provides that the Register of Copyrights shall be prima facie evidence of the particulars entered therein and documents purporting to be copies of any entries therein shall be admissible in evidence in all Courts without proof or production of the original.
Section 51 of the Copyright Act provides the circumstances under which a Copyright is infringed. Section 55 of the Act provides the civil remedies for infringement of copyright, namely, that an owner of the copyright would be entitled to all such remedies by way of injunction, damages, accounts and otherwise as may be conferred by law for the infringement of a right. Section 62 of the Copyright Act provides the jurisdiction of the Court covering in respect of infringement of copyright in any work.
In the light of the aforesaid provisions and in view of the documents brought on record before the trial court, it is clear that the defendant-appellants' copyright of the artistic work "Zincovit" was registered under the Copyright Act w.e.f. 22.10.1997. The extract from the register of copyright as supplied under Section 48 of the Act indicates that the defendant-appellants have been using the artistic work since 1990. The label also indicated a cluster of fruits and vegetables along with the word "Zincovit". On the other hand, the plaintiff's application for copyright was registered on 29.3.2011 indicating the title of the work as "Zincovit" with fruit device label, which is similar, if not identical, with a label of the defendants. The extracts of register of copyrights issued under Section 48 indicate that the plaintiff was using the artistic work since 1986. On the basis of this copyright dated 29.3.2011, the plaintiff is contending that they are the first user of the word "Zincovit" with cluster of food devices on the package and that the defendants are not only copying but selling their products illegally.
The Court finds that the plaintiff filed Original Suit No.402 of 2010 before the Ist Additional District Judge, Ranga Reddy District alleging that he was the first user of the word "Zincovit" and prayed that the defendants may be restrained from using that name/mark under the Trade Marks Act. The injunction application was rejected, on the ground, that no documents was filed by the plaintiff to show that he was the prior user of the brand name "Zincovit" nor produced any sales tax registration, food licence, drug licence, etc. On the other hand, the defendants had produced the licence under the Prevention of Food Adulteration Act as well as Certificate of Registration under the Trade Marks Act. In addition to the aforesaid, we find that the appeal filed by the plaintiff was rejected by the Andhra Pradesh High Court. On the other hand, the defendants filed Suit No.304 of 2011 and an injunction was granted by the trial court restraining the plaintiff from manufacturing or selling "Zincovit" product. This injunction order is still continuing.
From the aforesaid litigation inter-se between the parties, it is apparently clear that the defendant-appellants' trade mark of "Zincovit" was registered under the Trade Mark Act on 16.3.1988 and the artistic work on Zincovit label was registered on 22.10.1997, which they have been using since 1990. In this regard the defendants have filed documents indicating their usage. On the other hand, the plaintiff is exclusively relying upon a document dated 29.3.2011, which is the extract from the register of copyright indicating registration of their work "Zincovit" with fruit device label, which extract also indicates that they have been using it since 1986.
The contention of the learned counsel for the plaintiff is, the entries in the register of copyright under Section 48 of the Act are prima facie evidence of the fact that they were the first user since 1986. The submission in this regard cannot be accepted.
In the first instance, the registration of a copyright under Section 45 of the Act is not a condition precedent for filing any action against infringement of copyright. The provision for registration is only optional and is only intended to provide a prima facie proof of the particulars. The particulars indicated in the extract from Register of Copyright issued under Section 48 only gives a prima facie evidence of the particulars, but the same is required to be proved. In this regard, Section 45 of the Act clearly indicates that while applying for registration of the copyright, the application would include a statement to the effect and shall be accompanied by a certificate from the Registrar of Trade Marks to the effect that no trade mark identical with or deceptively similar to such artistic work has been registered under that Act.
In the instant case, the Court finds that nothing has been indicated by the plaintiff that while applying for registration under the Copyright Act vide his application dated 29.12.2009, the said application was accompanied by a certificate from the Registrar of Trade Marks to the effect that no trade mark identical with or deceptively similar to such artistic work has been registered under the Trade Marks Act. On the other hand, the Court finds from the naked eye that the artistic work of the plaintiff, which was registered on 29.3.2011 is not only deceptively similar, but more or less identical to the artistic work of the defendants, which was registered on 22.10.1997. Consequently, the Court is of the opinion, that prior user of the word "Zincovit" with the artistic work of the cluster of fruits and vegetables was of the defendants and not of the plaintiff.
There is another aspect of the matter. It has come on record that an agreement dated 24.8.2007 was executed between the parties to manufacture Zincovit Syrup as a multi vitamin mineral supplement by the plaintiff on behalf of the defendants. The plaintiff was the manufacturer and the product was to be supplied to the defendants under the agreement which was to be utilized exclusively by the defendants. Clause 8 of the agreement indicated that the manufacturer, namely, the plaintiff would in no way directly or indirectly use the manufacturing process or the composition or the technical knowhow applicable for the said product during and until one year after the expiry of the tenure of the agreement for its own use or for use of other parties.
Clause 9 of the agreement indicated that the manufacturer, i.e., the plaintiff would affix the trade mark label of the defendants and that the plaintiff would not at any time use the said trade name or the intellectual property right of the defendants or create any right, title or interest therein, which would be advert to the defendant.
Clause 10 of the agreement provided that upon termination of the agreement, the plaintiff would return all the machinery belonging to the defendants and in case of any discrepancy, the plaintiff would make good of loss of such machinery to the defendants. It has come on record that on account of the dispute, the agreement was terminated by the defendants.
From a perusal of the agreement, it is apparently clear, that the plaintiff entered into an arrangement to manufacture the product "Zincovit Syrup" on behalf of the appellants as a multi vitamin mineral supplement. The e.mail issued by the plaintiff to the defendants on 2.5.2009 indicates that the plaintiff was manufacturing "Zincovit Syrup" in violation of the agreement and that the plaintiff agreed to initiate the process for cancellation of the food licence given in their favour for manufacture of Zincovit Syrup and also indicated that they will take steps to file an application for withdrawal of the injunction order that they had obtained and undertook not to produce Zincovit Syrup in their factory from that day onwards. The plaintiff in the e.mail clearly apologised for their misadventure, which they had undertaken in manufacturing a product of which the copyright was that of the defendants.
In the light of this agreement the plaintiff cannot contend or come forward alleging that he was the prior user of Zincovit Syrup and had the copyright of the artistic work. Had the plaintiff been a prior user of Zincovit Syrup and was the prior user of the artistic work on the label, the agreement executed between the parties on 24.8.2007 would have clearly mentioned this fact. The Court fails to understand that if the plaintiff was the owner and prior user of the artistic work Zincovit and the artistic work of cluster of fruits and vegetables on the label, the plaintiff would not have agreed to manufacture the product and the label in their factory for the defendants. The fact, that the plaintiff agreed to manufacture the product for the defendants, clearly indicates that the right on the product was of the defendants and that the defendants were the prior user.
In the light of the aforesaid, it cannot be accepted that the plaintiff was the prior user of the word "Zincovit" or that the artistic work on the label indicating the cluster of fruits and vegetables was of the plaintiff. The evidence, which has been brought on record, indicates that the defendants were the prior user.
The Ministry of Health and Family Welfare issued a notification dated 20.12.2001 amending Rule 32 of the Prevention of Food Adulteration Rules, 1955. The relevant extract of Rule 32 pursuant to the amendment is extracted herein:
"Provided also that for all Vegetarian Food,-
(a) a declaration to this effect shall be made by a symbol and colour code so stipulated for this purpose to indicate that the product is Vegetarian Food. The symbol shall consist of a green colour filled circle, having a diameter not less than the minimum size specified in the Table given below, inside the square with green outline having side double the diameter of the circle, as indicated in clause (17) of sub-rule (ZZZ) of rule 42;
TABLE S.No.
Area of principal display panel Minimum size of diameter in mm 1 Upto 100 cms square 3 2 Above 100 cms square upto 500 cms square 4 3 Above 500 cms square upto 2500 cms square 6 4 Above 2500 cms square 8
(b) the symbol shall be prominently displayed,-
Under this amendment, a symbol consisting of green colour filled circle having a minimum size inside a square with green outline is required to be indicated on the package/label to show that it is a vegetarian food. The proviso also clarifies that such symbol was not required to be indicated where any vegetarian food was manufactured prior to this Amendment Rules, 2001. Similar provision was incorporated in Regulation 2.2.2 (4)(iii) of the Food Safety and Standards (Packaging and Labelling) Regulations, 2011. For facility, the said provision is extracted hereunder:
"4. Declaration regarding Veg or Non veg -
(i ) Every package of "Non Vegetarian" food shall bear a declaration to this effect made by a symbol and colour code as stipulated below to indicate that the product is Non-Vegetarian Food. The symbol shall consist of a brown colour filled circle having a diameter not less than the minimum size specified in the Table mentioned in the regulation 2.2.2 (4) (iv), inside a square with brown outline having sides double the diameter of the circle as indicated below :
Brown colour (ii ) Where any article of food contains egg only as Non-Vegetarian ingredient, the manufacturer, or packer or seller may give declaration to this effect in addition to the said symbol.
(iii ) Every package of Vegetarian Food shall bear a declaration to this effect by a symbol and colour code as stipulated below for this purpose to indicate that the product is Vegetarian Food. The symbol shall consist of a green colour filled circle, having a diameter not less than the minimum size specified in the Table below, inside the square with green outline having size double the diameter of the circle, as indicated below :
Green colour Under the Regulation of 2011 it has become mandatory that a declaration has to be made on every package of vegetarian food by a symbol and a colour code to indicate that the product is a vegetarian food. There is no relaxation for the manufacturers not to put a green dot on the label who were manufacturing vegetarian food prior to the Regulation of 2011.
In the light of the aforesaid provision, it has become mandatory for every manufacturer or seller of a vegetarian food product to disclose on every package of vegetarian food, i.e., on the label by using a symbol of a green dot inside a square with green outline. This has become necessary by a statute in order to show that the article which is contained in the package is a vegetarian food.
The copyright gives the owner the exclusive right to authorize or prohibit certain uses of his works by others. It gives the owner an element of control over the exploitation of his work. Copyright is a term used to describe a bundle of rights that has been granted by a statute for a limited period of time and subject to certain permitted exceptions in respect of original, literary, dramatic, musical or artistic work. The term "artistic work" has been defined under Section 2(c) of the Copyright Act, which means a painting, a sculpture, a drawing and an engraving or a photograph or a work of architecture or any other work of artistic craftsmanship. In other words, the term "artistic work" means a graphic work, photograph, sculpture or a collage. A green dot inside a square outlined by green colour by no means becomes an artistic work for which an exclusive right can be claimed by the plaintiff. The green dot inside a square with green outline is a symbol, which has been prescribed by law under the Food Safety and Standards Act, 2006 as well as under the Prevention of Food Adulteration Act, 1954 and, therefore, such symbol cannot become the exclusive artistic work of an individual. Further, there is nothing to indicate by any evidence filed by the plaintiff to show that such symbol was being used by him prior to the enforcement of the Symbol under the Prevention of Food Adulteration Act, 1954 and its Rules of 1955 as well as under the Food Safety and Standards Act, 2006.
In the light of the aforesaid, the Court is of the opinion, that the green dot inside a square outlined by green colour is a symbol for which no copyright claim can be made by any individual since that symbol is prescribed by statute. The contention that this symbol was the artistic work of the plaintiff is patently erroneous.
Much argument was made by the plaintiff on the issue that the defendants were licensed to manufacture pharmaceutical products under Classification-5 of the Trade Marks Act and that the plaintiff had a right to manufacture under Clause 29 of the Trade Marks Act.
We are of the opinion, that the issue is not relevant to be decided at this stage where the main allegation is with regard to infringement of the artistic work of the plaintiff under the Copyright Act. Whether Zincovit Syrup vitamin substitute as a food product can be manufactured either under classification-5 or classification-30 of Schedule IV of the Trade Marks Act, is a matter to be resolved by the Trade Marks Registrar and is not the subject matter of consideration by this Court.
In view of the aforesaid, the Court finds that no prime facie case was made out by the plaintiff for grant of an injunction. The balance of convenience was totally lacking. The Court below committed a manifest error in granting injunction restraining the defendants from using the green dot, which was mandatory required in law to be placed on the package to show that the package contained a vegetarian food.
Consequently, the impugned order cannot be sustained and is quashed. The appeal is allowed.
In the circumstances of the case, parties shall bear their own cost.
Dated:11.7.2014.
AKJ.
(Akhtar Husain Khan, J.) (Tarun Agarwala, J.)