Ms. Pratibha M. Singh, Advocate For The Defendant.

A.K. Sikri, J:

1. IA. 10720/98 is filed by the plaintiff under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure (hereinafter referred to as CPC, for short) for ad-interim injunction. The other two Interlocutory Applications are filed by the defendant under Order XXXIX Rule 4 and Order XXXIX Rules 3 and 4, CPC. Both are for vacation of ex-parte injunction. These applications were accordingly heard together and are disposed of by this common Order.

2. The main Suit filed by the plaintiff is for perpetual injunction against the defendant for alleged infringement of trade mark, copyright, passing of and rendition of accounts, etc. The plaintiff is carrying on business of manufacturing and marketing of steel pipes and fittings thereof. Its case is that since 1984 it has been using the distinctive double colour bands - blue, yellow and red on the steel pipes entitled "Prakash Surya". What is claimed is that plaintiff is the first Company in India to bring new and original artistic design of double colour band in respect of "steel pipes and fittings" and the use of "double colours" is a novel attraction and eye-catching to the customers. It has spent huge account in publicising such distinctive double colour band system. It is further submitted that in order to seek statutory protection the plaintiff has applied for its registration on 27th November, 1996 claiming user since 1984 and the application is pending before the Registrar, Trade Mark, New Delhi. This work already stands registered under the Copyright Act with Registration No. A-54370/97. Thus, it has exclusive right to manufacture and sell steel pipes and fittings under the distinctive double colour bands and no other person has right to use the same distinctive colour bands system in respect of steel pipes and fittings. However, in an attempt to take advantage of the unique, reputation and good-will built by the plaintiff with respect to these goods with the aforesaid distinctive double colour band system the defendants have recently started manufacturing and marketing of steel pipes and fittings using identical and/or deceptively similar distinctive double colour band system in blue, red and yellow colours and is marketing the goods under the trade mark "Metalman". It is submitted that the plaintiff has no objection if he defendant sell the product by using the trade mark "Metalman" but it should use single colour band as permissible under IS:1239 of Bureau of Indian Standards Act.

3. While issuing summons in the Suit and notice was also issued in IA. 12702/98 on 30th November, 1998 returnable on 14th December, 1998. On 14th December, 1998 fresh notice was issue returnable on 5th February, 1999. This notice was received back with the report that the defendant had refused to accept notice. In view thereof, on 5th February, 1999 Order was passed to the effect that until further orders the defendants, their servants, distributors, agents, dealers and representatives are restrained from manufacturing, selling, offering for sale or use of double colour bands in respect of steel pipes and fittings. Thereafter, the defendants filed IAs. 12466-67/99 on 15th February, 1999 for vacation of injunction order dated 5th February, 1999.

4. It may be stated here that IA. 12467/99 is filed under Order XXXIX Rule 3, CPC alleging that compliance was not made as per the said provision. This IA. was not pressed by the defendant as Order dated 5th February, 1999 is not an ex-parte Order. Therefore, this application stands dismissed as not pressed.

5. The case of the plaintiff, as noted above, is that it has objection to the double colour bands used on the steel pipes and fittings claiming that the said double colours used is innovative and artistic design of the plaintiff. Relying upon the various provisions of the Copyright Act and particularly Section 48 thereof it was submitted that plaintiff has exclusive right to use the double colour band. In support, it was submitted that the same double colour being used by the defendant in respect of its product is deceptively similar causing confusion and amounted to infringement of the plaintiffs copyright. It is the overall similarity which is to be seen and therefore the plaintiff was entitled to injunction and Order dated 5th February, 1999 needed to be confirmed. In support he relied upon the case of Eova Ball Bearing Ind v. Mico Ball Bearing, 1980 RLR 683 [LQ/DelHC/1980/356] , Deepchand Arya v. Kiran Soapworks, 1981 RLR 113 [LQ/DelHC/1981/4] : 1981 PTC 108(Del) and Keshavsinh Dwarkadas Kapadia v. Indian Engineering Company, AIR 1972 SC 1539. On the other hand, the case of the defendant is that the plaintiff was no monopoly on the use of these colours. In fact, it is the obligation of the manufacturers to use these colours as statutorily mandated by the Indian Bureau of Standards. It was further submitted that the reading of the plaint and particularly para 3 thereof gives the impression as is the use of colours blue, yellow and red on the steel pipes was the original artistic design propounded by the plaintiff which was wholly misconceived as these colours are prescribed by Indian Standards of Bureau itself. The plaintiff made concealment of the specifications laid down by the Bureau of Indian Standards and rather made misrepresentation in para 3 of the plaint. In the realm of trade mark, it was argued, that there could not be infringement as colours are clearly functional, related to case of ISI specifications and therefore, there cannot be any violation thereof. The specifications of Bureau of Indian Standards are filed which mandates the following marking on such goods

17. MARKING

17. 1 Each tube shall bear legibly the identity of the source of manufacturer.

17.2 The different class of tubes shall be distinguished by colour bands which shall be applied as follows before the tubes leave the manufacturers works :

. `Light tubes, Yellow"

. `Medium tubes, Blue"

. `Heavy tubes, Red"

172.1 Unless otherwise mutually agreed to between the manufacturer and the purchaser, a white colour band shall be applied at each and of the tubes for steam services.

17.3 All long random lengths shall each have two 75 mm bands, one near each and; all other lengths shall each have one 75 mm band.

17.3.1. The tubes may also be marked with the Standard Mark, details for which may be obtained room the Bureau of Indian Standards.

6. Thus, for light tubes yellow colour, for medium tubes blue colour and for heavy tubes red colour is to be used by the manufacturers as per these specifications and this could not be the invention of the plaintiff. In para 3 of the plaint, however the impression given is as if the colours are being used by the plaintiffs as per its on invention. Relevant portion of para 3 reads "that since the year 84, the plaintiff-Company has been using the distinctive double colour bands such as blue, yellow and red on their steel pipes entitled `Prakash Surya. "It was submitted that in view of the provisions of Section 34 of the Act, nucleaus was in public domain and every person has right to use the same. In support reliance was placed in the case of Kellogg Company v. Pravin Kumar Bhadabhai, 1996 PTC 187 and Spraying Systems Company v. Delavan Inc., 19 USPQ 2b 1121 were cited.

7. Replying to the arguments on copyright of the plaintiff, it was submitted that there was nothing artistic about the use of double colour band. It was submitted the colour was to be compulsorily used as per ISI specification and the colour had to be near the end of the lengths. The distinction was to be made between the evidence of particulars and entered in rights of copyrights and the evidence as to the validity thereof, as in trademark, while considering the provision of Section 48 of the Copyright Act. It was further argued that keeping in view the nature of the product, the manner in which these steel pipes are stored and also the vagaries of nature, Bureau of Indian Standards has prescribed the use of different colours for identifying the quality of each pipe, namely, whether it was light, medium or heavy. The case of Camlin Private Ltd. v. National Pencil Industries, 1986 PTC 1 was also cited in support of this.

8. After hearing the counsel for both the sides, I am of the view that the plaintiff is not entitled to injunction. The defendant is right in submitting that para 3 of the plaint gives the impression as if the use of colours such as blue, yellow and red on the steel pipes and use of double colour bands thereon is propounded by the plaintiff, whereas the fact is that use of these colours is prescribed by ISI and therefore it has to be compulsorily used by all the manufacturers. I am also of the opinion that any purchaser will not purchase the product because of these colours which are to be used by every manufacturer but by the trade name. No purchaser is going to get confused by use of colours as these are to be used by every manufacturers. It also follows that there is nothing special about using double colour band and these colours are clearly functionally related to quality, namely, whether the product is in the category of light, medium and heavy and would not relate to the manufacturers. In the case of Camlin Private Ltd. (supra) this Court held that in view of the provisions of Section 13 of the Copyright Act, 1957, copyright does not subsist in a mechanically reproduced printed card board carton and moreover there being no similarity at all whether phonetic or visual between the two marks `CAMLIN FLORA and `NATIONAL ELLORA and there being no likelihood of confusion, nor the words National ELORA can be passed off as the words CAMLIN FLORA, the suit for infringement of alleged copyright or alleged infringement of trade mark or for the alleged passing off cannot be maintained. Injunction was refused and plaint was rejected. Following observations are worth quoting :

"In order to determine whether copyright exists in the cartons, it is necessary to keep in view the legally accepted meaning of `copyright. In essence, in law copyright means the exclusive right to make copies of any copyrightable subject matter in any tangible material form."

9. In Spraying Systems Company v. Delavan (supra) US Court has held that colour coding system used to identify spray nozzels is functional. The question of similarity or likelihood of confusion does not arise at all even when the plaintiff is selling the goods under its trading style `Prakash Surya and the defendant under `Metalman. Use of particular colour which is functional whether in single or double band, is not going to cause confusion. Judgment in the case of Kellogg Company v. Pravin Kumar Bhadabhai (supra) also comes handy in favour of the defendant. In view of these glaring facts of this case, none of the judgments cited by the plaintiff are applicable and are clearly distinguishable.

10. The result of the aforesaid discussion is that IA. 10720/98 is dismissed. IA. 12466-67/99 succeeds. Interim Order dated 5th February, 1999 stands vacated.