Herb Shop vs Nectar (U.K.) Ltd. And Others
1999 Latest Caselaw 154 Del

ORDER

A.K. Srivastava, J.

1. The interim applications being I.As. No. 5042/98 and 5373/98 have been moved by plaintiff Herb Shop India Private Limited under Order 39 Rules 1 and 2 CPC in S.No. 1123/98. In the first application the relief sought is that the defendant, its proprietor etc. be restrained from using the trade-mark NECTAR/and or any other trade-mark deceptively or confusing similar to the trade-mark NECTAR and from passing off its goods as and for the goods of the plaintiff's, by use of the trade-mark NECTAR. In the second application the relief claimed is to restrain the defendant, its proprietor etc. by a permanent injunction restraining it from using NECTAR/and or any other trade-mark or trade-name deceptively or confusing similar to the trade-mark NECTAR in respect of lipstick or other cosmetics products.

2. Thus in the reliefs claimed in these applications there are few distinctions. Firstly, in the first application, the relief sought is by way of interlocutory injunction whereas in the second application the relief sought for is by way of permanent injunction; secondly, in the first application it is not mentioned as to in respect of which goods the relief is sought for whereas in the second application the relief sought for is in respect of lipsticks or other cosmetics products and, thirdly in the first application the relief sought for is in respect of only the trade-mark NECTAR whereas in the second application, the relief sought for is in respect of trade-mark as well as trade-name.

3. On perusal of the order-sheets in the suit, it transpires that when the first pplication I.A. No. 5042/98 was taken up for consideration on May 29, 1998, C.M. Nayar, J. only issued notice in the same and did not pass any ex parte interim order. Thereafter, the second application I.A. No. 5373/98 was moved during the vacations on July 2, 1998 and K. Ramamoorthy, J., the Vacation Judge, while issuing notice passed an ex-parte interim order directing the defendant, its proprietor, partners, directors,servants, agents, representatives and assigns from using NECTAR/and or any other trade-mark or trade-name deceptively or confusingly similar to the trade-mark NECTAR in respect of lipsticks or other cosmetics products until further orders.

4. Originally the suit was filed against one defendant, namely, NECTAR (U.K.) Limited. On July 21, 1998, the sole defendant NECTAR (U.K.) Limited moved an application being I.A. No. 6026/98 under Order 39 Rule 4 C.P.C. and requested the Court to either vacate the ex parte interim injunction order dated July 2, 1998 or the same be modified/varied so as to permit the defendant to use its corporate name while disclosing the name of manufacturer of the Avon Products on the packaging and the product. It was also,in the alternative, prayed that the said ex parte order dated July 2, 1998 be clarified that the defendant was not restrained from manufacturing and supplying the Avon Product to Avon Beauty Product Private Limited under its existing name NECTAR (U.K.) Limited. At that stage, the suit was transferred to this Board and this I.A. of the sole defendant was taken up by me for consideration in the presence of the counsel for plaintiff on July 30,1998. Notice in this application was given to plaintiff with time to file reply but in the meantime, without prejudice to the rights and contentions of the parties and without expressing any opinion about the respective cases, it was directed that defendant was not restrained in selling its products in the name of Avon to the Avon Beauty Products India Private Limited. It may, however, be mentioned here that in the original plaint as well as in the amended plaint there is no prayer that the defendant be permanently restrained from using its trade-name in respect of lipsticks or other cosmetics products but in the interim injunction application being I.A. 5373/98, the plaintiff sought permanent injunction restraining the defendant from using its trade-name as well in respect of the said goods. During the course of arguments learned counsel for plaintiff, however, conceded that the plaintiff would not press its prayer for restraining the defendant NECTAR (U.K.) Limited from using its trade-name in respect of lipsticks or other cosmetics products.

5. In view of above, there is no difficulty in making absolute the order dated July 30, 1998 passed in I.A. No. 6026/98 till disposal of the suit.

6. Before entering into merits of the two applications of the plaintiff, it would be appropriate to deal with one serious objection raised from the side of defendants. The objection is that the plaintiff fraudulently and by concealment obtained the ex parte order dated July 2, 1998. According to learned counsel for defendants when the plaintiff failed in getting ex parte injunction order on May 29, 1998 from Hon'ble Mr. Justice C.M. Nayar it moved another application under Order 39 Rules 1 and 2 CPC being I.A. No. 5373/98 to seek the same ex parte relief without mentioning that a similar application had earlier been moved by it in which orders for notice only for July 9, 1998 had been passed. The argument is that if the subsequent injunction application had mentioned the factum of having moved similar application earlier, the Hon'ble Judge might have only issued notice in this application as well for July 9, 1998. According to them professional ethics requires that if another application is moved under same provision and for similar relief mention of the fact that an earlier application had been moved, ought to have been made in the subsequent application. Further it was urged by the learned counsel for defendants that there has been a false statement of fact as well by the plaintiff in I.A. No. 5373/98 by stating that during pendency of the suit the defendant surreptitiously started using the name NECTAR on lipstick which they introduce under the brand name Avon and were using their corporate name NECTAR (U.K) Limited on the under side of the product. Para 4 of the said application goes to say that the plaintiff learnt of the above only on June 30, 1998. Learned counsel for defendants invited my attention to para 43 of the original plaint (relating to accrual of cause of action) wherein it is stated that the cause of action accrued against the defendant in April, 1998 when the plaintiff learnt that the defendants were marketing and selling the offending products and that the cause of action had thereafter accrued on each occasion when the defendants used NECTAR in any manner whatsoever. The crux of the argument is that if the defendants were already marketing and selling the offending products since April, 1998, the factual averment in I.A. No. 5373/98 stating that despite pendency of the proceedings before this Court now surreptitiously the defendant started using the name NECTAR on lipsticks which they had introduced under the brand name AVON but were using their corporate name NECTAR (U.K.) Limited on the under side of the product was definitely a false statement only to secure ex parte interim order.

7. Learned counsel for plaintiff during his arguments could not reconcile the aforesaid contradictory averments.

8. However, I find that in the amended plaint, the cause of action clause has been suitably amended. Para 57 of the amended plaint now reads as follows:-

"57. The cause of action first accrued to the Plaintiff when they recently came to know of the Defendant's activities aforesaid. the cause of action thereafter accrued against the Defendants in April 1998 when the Plaintiff learnt that the first Defendants are promoting their products under the name NECTAR. The cause of action has thereafter accrued on June 30, 1998 when the Second Defendant was found selling and offering for products under the name NECTAR. The cause of action has thereafter arisen on each occasion when the Defendants have used NECTAR in any manner whatsoever. The suit is within time."

9. Thus under the amended plaint, now the case of the plaintiff is that the cause of action accrued against the defendants in April, 1998 when the plaintiff learnt that the defendant NECTAR (U.K.) Limited were promoting their products under the name NECTAR and that the cause of action thereafter accrued on June 30, 1998 when the defendant NECTAR (U.K.) Limited was found selling and offering its products under the name NECTAR. It appears that after the serious objection was made from the side of defendants, the plaintiff carefully amended the cause of action clause as above. In my view, the plaintiff definitely made an effort to anyhow obtain an ex parte order during vacation and with that frame of mind the subsequent injunction interim application being I.A. No. 5373/98 was so framed to give an impression to the Hon'ble Judge dealing with that application that when the suit was filed, the defendant was not selling its offending goods and that during the pendency of the suit surreptitiously started using the name NECTAR on lipsticks which they had introduced under the brand name Avon but were using their corporate name NECTAR (U.K.) Limited on the under side of the product. In that application it was affirmatively stated that the plaintiff could learn of that product only on June 30, 1998.

10. Admittedly, there is no mention in the second application that any interim application had already been moved by the plaintiff and in that only notice was issued for July 9, 1998. It is also apparent that a false statement being contradictory to the averments in the cause of action clause of the plaint was made in the subsequent application.

11. Such concealment and false statement was highly an improper conduct on the part of the plaintiff. It may amount to fraud on the court. Counsel for plaintiff is same in the suit as well as in both these applications. It is the duty of the Bar to assist the Court and not to allow placing of contradictory facts before the Court to obtain a relief. Further it is also the duty of the Bar to see that a party is not allowed to make concealment in respect of Court proceedings. Had the counsel been careful the plaintiff could not have been able to do so to anyhow obtain the ex parte relief. Since the ex parte order dated July 2, 1998 was soon modified, I am not taking serious view in this matter so far as merits of the applications are concerned.

12. Originally, NECTAR (U.K.) Limited was the sole defendant but after reply was filed by the defendant, the plaintiff moved an application for amendment of the plaint being I.A. No. 6243/98. It was allowed vide order dated August 11, 1998. As per amended plaint now there are four defendants, namely: (i) Nectar (U.K.) Limited, (ii) Avon Beauty Products India Private Limited, (iii) Nectar Overseas Limited and (iv) Avon Products, Inc.

13. The applications of the plaintiff under consideration were moved before the plaint was amended and after amendment of the plaint, the plaintiff did not take care to seek interim relief against the three newly added defendants as well. The ex parte interim order dated July 2, 1998 was only against the sole defendant i.e. NECTAR (U.K.) Limited. No application was moved on behalf of plaintiff with the prayer that the interim ex parte order dated July 2, 1998 be also made applicable against the three newly added defendants nor any subsequent application was moved by the plaintiff seeking interim injunction against the newly added defendants No. 2 to 4.

14. Reply to I.A. No. 5042/98 was filed by defendant NECTAR (U.K.) Limited on July 24, 1998. Thereafter on August 7, 1998 defendant NECTAR (U.K.) Limited moved an I.A. No. 6890/98 under Order 39 Rules 1 and 2 CPC. One of the prayers therein is that by ad interim injunction order, the plaintiff, its Directors etc. be restrained from using the name NECTAR as a trade-mark or as a trade-name in any manner whatsoever for manufacture and sale of their products during the pendency of the suit. This application was taken up on November 11, 1998 and the plaintiff was directed to file reply within four weeks. Since arguments were being heard in I.As. No. 5042/98, 5373/98 and 6026/98, learned counsel for plaintiff insisted that arguments in these three I.As. only be heard for early decision and I.A. No. 6890/98 moved by defendant No.1 be taken up later on.

15. No replies appear to have been filed on behalf of defendant Nos.2 to 4 to plaintiff's I.As. No. 5042/98 and 5373/98. Written statement and counter-claim on behalf of defendant No.1 was filed on August 7, 1998. It appears that defendant No. 3 has not yet filed its written statement. It may be noted here that defendant No.3 was not a party to this suit when written statement was filed by defendant No.1 on 7.8.1998. After the defendant No. 3 was imp leaded by order dated 11.8.1998 only power of attorney in favour of P.N. Sewak and Navin Chawla, Advocates was filed on behalf of defendant No. 3 but written statement has not been filed. Written statements on behalf of defendant No. 2 and defendants No. 4 were filed on September 1, 1998 and September 17, 1998 respectively.

16. The plaint case is that plaintiff is an Indian Company duly incorporated under the name and style of the Herb Shop India (Private) Limited on June 27, 1995 and Ms.Kalsi Bhartiya and Mr. Ajay Bhartiya are its Directors. Earlier to June 27, 1995 there was a proprietorship concern by the name of Herb Shop started by Ms. Kalsi Bhartiya in or about the end of 1992 and early 1993. Ms. Anita Kalshi Bhartiya is stated to be wife of Mr. Ajay Bhartiya. The trade-mark NECTAR is stated to have been formally adopted for a diverse range of homoeopathic and ayurvedic based herbal treatment produced by the said sole proprietorship concern by the name of Herb Shop and the first bill in that regard was dated April 22, 1993. That owing to the high quality of the products sold under the trade-mark NECTAR by Ms. Bhartiya, the sale of the product under the said mark increased steadily and that on December 5, 1995, the said sole proprietorship concern, namely, the Herb Shop applied for registration of the trade-mark NECTAR in Class 3 in respect of bleaching preparation and other substances for laundry use, cleaning, polishing, scouring and abrasive preparations, soaps, perfumery, essential oils, cosmetics, hair lotions, dentifrices and all goods in Class 3 and the said application was numbered as 689361. The said application was filed on the basis of user since April 22, 1993. The plaintiff company on being incorporated took over all the assets of the proprietorship concern of the Herb Shop.

17. According to the plaintiff right from the beginning the main marketing strategy adopted by the plaintiff and its predecessor in business has been to supply its products through exclusive outlets such as beauty parlors and through exhibitions and that almost all leading beauticians and beauty parlours in several parts of the country had been using products under the trade-mark NECTAR. A list of a few cities were the plaintiff's products under the brand name NECTAR are freely available is given in para 12 of the plaint. It is also stated in the plaint that the plaintiff's trade-mark NECTAR have been frequently appearing in almost all leading publications of India since the last many years. A list of newspapers in which advertise ments of the plaintiff's have appeared is given in para 13 of the plaint giving dates of advertisements. In para 15 of the plaint, a list of the International exhibitions in which plaintiff's products have been exhibited have been given yearwise. In para 16 of the plaint it is stated that in August, September, 1994, the plaintiff company received its first export order from Moser Baer (India) for exports of its products to United States of America.

18. In order to show that the plaintiff company has been using NECTAR as its trade-mark in perfumery and cosmetics since April 23, 1993, the plaintiff has filed several documents.

19. Learned counsel for the defendants vehemently questioned the claim of the plaintiff regarding use of trade-mark NECTAR since 1993, on grounds, inter alia, that the plaintiff company was incorporated in June, 1995 as a private limited company and prior to that date only a proprietorship concern, named, Herb Shop was there in the name of which certain documents have been filed to show that the same was in some way or the other connected with trade mark NECTAR. Though in para 10 of the plaint it has been stated that when the plaintiff company was incorporated it took over all the assets of the proprietorship concern, namely, the Herb Shop but it is strange that on December, 5, 1995, after about five months since the incorporation of the plaintiff company the said proprietorship concern Herb Shop applied for registration of the trade-mark NECTAR. It is not understandable as to how the proprietorship concern Herb Shop applied for registration when all the assets thereof had been allegedly taken over by the plaintiff company. It is also not understandable as to how the plaintiff company itself did not apply for registration of the trade-mark NECTAR. During the pendency of the suit a further mess had been created, that is to say, that for a consideration of rupees one hundred the said proprietorship concern, the Herb Shop on 26.8.1998 assigned, transferred and set over to the plaintiff company its entire right, title and interest to the trade-mark NECTAR together with a goodwill associated with the use of trade-mark in respect of the goods. This assignment is said to be with effect from June 27, 1995. A photocopy of the assignment deed is on record. This assignment deed also says that on June 27, 1995 the plaintiff company was incorporated and it took over all assets of the sole proprietorship concern, namely, Herb Shop. If on June 27, 1995 itself all the assets of the sole proprietorship concern were taken over by the plaintiff company it is not understandable as to why a proprietorship concern which had a natural death on June 27, 1995 applied for registration of trade-mark NECTAR on December 5, 1995 and thereafter on August 26, 1998 assigned its right, title and interest in the said trade-mark together with goodwill in the same to the plaintiff company with effect from June 27, 1995. On perusal of the plaint, it appears that the plaintiff company which was incorporated on June 27, 1995 claims everything since 1993 saying that the plaintiff had since 1993 been using the trade-mark NECTAR. It appears that since Ms. Anita Kalsi Bhartiya was the sole proprietor of the concern Herb Shop and she became one of the first Directors of the plaintiff company, the plaint appears to have been drafted under the impression that the said trade-mark with continuity automatically became the trade-mark of the plaintiff company. It would be apparent if paras 15 and 16 of the plaint are perused in which facts relating to the years prior to the incorporation of the plaintiff company have been stated as the facts relating to the plaintiff company. If the plaintiff company was incorporated on June 27, 1995, naturally it neither could have participated in the International exhibitions which took place in 1993 to 1994 or could have received ts first export order from Moser Baer (India) Ltd. in August-September, 1994 as stated in para 16.

20. It was also vehemently argued from the side of the defendant as to how the plaintiff could bank on the sales and advertisements made on any day prior to June 27, 1995 because they could only relate to Herb Shop, the proprietorship concern. On perusal of the documents it transpires that the plaintiff has filed several documents which relate to Herb Shop, Herb Touch (India) Pvt. Ltd., Ashok Enterprises and Herb Touch. On perusal of the documents, it would appear that for the first time on 29.10.96 that VUPAS Herbal Products India Private Limited gave advertisement with Agniban in which there was an advertisement in respect of NECTAR Herbal Products in the name of the Herb Shop (India) Pvt. Ltd. There is no advertisement in the name of plaintiff company in respect of trade-mark NECTAR prior to October 29, 1996. Likewise the documents on record filed by the plaintiff show that the sale figures in the name of the plaintiff company relate to sales made on February 19, 1997 and onwards in the trade-name NECTAR.

21. Learned counsel for plaintiff contended that the plaintiff's case is on three limbs. Firstly, on the basis of sales made by proprietorship concern Herb Shop since April 23, 1993 because the plaintiff company took over all the assets of the said proprietorship concern including its good-will and the trade-mark NECTAR and as such it being successor to the said proprietorship concern, secondly, on the basis of the sales made after June 27, 1995, the date of incorporation of the plaintiff company and, thirdly, on the basis of the sales made from February 19, 1997, the date from which the plaintiff company has been able to show sales in its name with the trade-mark NECTAR. According to him if the plaintiff company is not accepted to have the trade-mark since April 22, 1993 or since June 27, 1995 then at least the plaintiff has been able to show to the Court that since February 19, 1997, the plaintiff company is using the trade-mark NECTAR in respect of the perfumes and cosmetics articles. He contended that the plaintiff has been prior user of the trade-mark NECTAR in India in respect of the aforesaid articles as compared to the defendants.

22. The case of the defendant Nectar (U.K.) Limited in respect of these applications is that it was incorporated in India on October 12, 1995; that it has a collaboration/tie up with a British Company known Nectar Overseas Limited trading as Nectar Beauty Shops of 95A, Belfast Road, Carrickfergus, Country Antrim BT 38 8XX, Northern Ireland, United Kingdom; that Nectar overseas is an international renowned company organized and existing under the laws of Northern Ireland, United Kingdom and since 1979 the same has been carrying on a world-wide business of manufacturing and marketing Natural Beauty Care products which includes cosmetics, hair and skin products, aroma therapy and natural oils, men's range and fragrance free range of skin care products using natural ingredients; that Nectar Overseas has built enormous reputation and goodwill world-wide in its Nectar product and in at least thirty one countries has its presence; that the said products are highly reputed and sold in approximately 350 exclusive show rooms world-wide in all major markets of the world including in Australia, Canada, France, Germany, Italy, Korea, Mexico, New Zealand, South Africa, Taiwan, Turkey, USA etc.; that in connection with its established business the Nectar Overseas owns and uses, inter alia, trade-mark nectar which is registered and/or applied for in about thirty four countries of the world; that in India said Nectar Overseas has applied for registration of trade-mark NECTAR under application No. 680030 dated September 20, 1995 in Class 3; that the trade-mark NECTAR also forms an essential and integral part of the corporate name of Nectar Overseas and its subsidiaries and affiliates world-wide and that Nectar verseas has authorised the defendant to use NECTAR as a trade-mark and as part of its corporate name. In the written statement in paras 8 and 9 of the counter-claim turnover of the Nectar Group of Companies for the period 1988-98 and the expenses and costs incurred on trade-marks for the period 1992-98 have been shown. In para 11, it has further been stated that the defendant in addition to using NECTAR as its registered corporate name has also been marketing its products under the trade-mark NECTAR in Delhi and adjoining areas in respect of products detailed in the list attached as Annexure A to the written statement. In para 12, it is stated that the defendant has also recently appointed distributors for NECTAR products. In para 13, it is stated that details of sales under the trade-mark NECTAR effected by the defendant for the period October 25, 1997 to July 2, 1998 have been shown as Annexure-B to the written statement. It has further been contended that the plaintiff has no reason whatsoever for adopting and using the trade-mark NECTAR; that Nectar Overseas is the true and honest adopter of the said mark since 1983; that the plaintiff has dishonestly misappropriated Nectar Overseas and the defendant's trade-mark NECTAR in India and that the plaintiff with mala fide intention sold its products under the trade-mark NECTAR in spite of having received legal notices from Nectar overseas and defendant's lawyers. The defendant is stated to have learnt for the first time, plaintiff's use of the trade-mark NECTAR in April 22, 1997 and caused a cease and desist notice dated April 22, 1997. Replies and rejoinders are stated to have been exchanged between the parties before filing of this suit.

23. Defendants No. 2 and 4, namely, Avon Beauty Products India Pvt. Ltd. and Avon Products, Inc. respectively filed their different written statements. In brief their contention is that defendant No. 2 is selling its products in the name of AVON which is neither similar to the trade-mark NECTAR nor in any way deceptively similar thereto. It is also contended that as per legal requirements under the Drugs and Cosmetics Act, 1940 and under the Standards of Weights and Measures Act, 1976, they have to give the name of the manufacturer of the products. According to them, the plaintiff is not entitled to any relief against them and the suit against them deserves to be dismissed.

24. Though defendant No. 3 has not filed any written statement of replies to these applications but arguments were advanced on its behalf of Mr. M.L. Bhatt, Senior Advocate.

25. There is no dispute between the parties that Herb Shop proprietorship concern did exist since 1993; that the plaintiff company was incorporated on June 27, 1995; that defendant No.1, Nectar (U.K.) Limited was incorporated in India on October 12, 1997; that neither the plaintiff company nor any of the defendants are the registered owners of the trade-mark NECTAR and that the entire disputes is of passing off.

26. On careful consideration of the respective contentions of the parties to the suit and the documents filed by them, prima facie, it appears that the plaintiff company started selling its cosmetics products under the trade-mark NECTAR at least from February, 1997. On the other hand, it transpires that defendant No.1 appears to have started selling its cosmetics products under the trade-mark NECTAR for the first time from October 25, 1997.

27. There is an admission by defendant No.1 in its written statement in para 19 of the counter-claim that it learnt the plaintiff's use of the trade-mark NECTAR in April, 1997 and caused a cease and desist notice dated April 22, 1997 to be served upon the plaintiff through its Attorney Ramfry & Sagar, New Delhi on behalf of Nectar Overseas Limited (defendant No.3). Therefore, it can easily be accepted that plaintiff was using trade-mark NECTAR at least from a date prior to April 22, 1997. The sales given by defendant No.1 under the trade-mark NECTAR, as mentioned in the written statement and as per Annexure B thereof, appear to have been started from October 25, 1997. As such, there is no difficulty in coming to a, prima-facie, conclusion that the use of trade-mark NECTAR in cosmetics products by the plaintiff is prior to that of defendant No.1.

28. Mr. Arun Jaitley, Senior Advocate, vehemently argued that the conduct of the plaintiff amounts to a commercial theft. Ms. Kalsi Bhartiya like a clever Indian trader started making marginal/miniscule sale in India to grab the trade-mark NECTAR which belonged to defendant No. 3 at least since 1983. The trade-mark NECTAR is respect of cosmetics products had become very popular in almost thirty four countries and by the travelling popula-tion from abroad to India it had become quite popular in India as well. In 1995 once the financial policy of liberalisation was adopted by the India Company and the economy opened for foreigner investment, Nectar Overseas, the defendant No. 3, tried to enter the Indian market also with its cos-metics products under the trade-mark NECTAR. With that purpose, it entered into an agreement with defendant No.1 and on September 20, 1995 applied for registration of trade-mark NECTAR in India under application No. 680030 prior to the application of proprietorship firm Herb Shop for registration of that very trade-mark which was moved on December, 5, 1995. Defendant No.1 and defendant No.3 were in the process of completing all the legal and financial formalities. With that purpose several applications were moved for several sanctions and permissions. It was contended that right from the year 1995 defendant No.1 and defendant No.3 had been in the process of starting commercial activity relating to the cosmetics products in India under the trade-mark NECTAR. Several documents filed on behalf of defendant No. 1 would corroborate the contentions being advanced.

29. There is no objection to the aforesaid argument and to the several documents filed on behalf of defendant No.1 to show that defendant No.3 and defendant No.1 had been in the process of entering into the commercial sale of cosmetics products under the trade-mark NECTAR on any date prior to February, 1997 but on it own admission defendant No.1 could show sales only with effect from October 25, 1997. There is nothing on record to show that defendant No.3 has directly undertaken commercial activity in India in respect of cosmetics products under the trade-mark NECTAR. It appears that it has only licensed defendant No.1 to use the trade-name NECTAR in India. On perusal of the documents filed by defendant No.1, it appears that an agreement reached between defendant No.1 and defendant No.3. which in fact is confirmation of the pre-incorporation (of defendant No.1) draft agreement dated 4.9.1995 between defendant No.1 an defendant No.3. This agreement is dated February 20, 1996. On careful scrutiny of this agreement it appears that defendant No. 3 gave licence to defendant No.1 to use the trade-name NECTAR. In other words defendant No.3 authorised defendant No.1 to use the trade name NECTAR in its corporate name. Paras 2.3, 3.6.2., 3.13.2, 4.1, 6.10.7, 6.10.8, 6.10.10, which are reproduced below go to confirm the above, prima facie, opinion:-

"2.2 The Licensee wishes to manufacture and/or sell the Products in the Territory.

3.6.2 Trade Name: Nectar;

3.13.2 In the name NECTAR;

4.1 The Licensor grants to the Licensee the Rights.

6.10.7 On the expiry or termination of this Agreement forthwith to cease to use the intellectual property and in particular the Trade Name save as expressly authorised by the Licensor in writing and to change the Licensees name so that it does not incorporate the name 'Nectar'.

6.10.8 Not to apply for registration of the Trade Name as a trade mark but to give the Licensor at the Licensor's expense any assistance it may require in connection with the registration of the Trade Name as a trade mark in any part of the world and not to interfere with in any manner nor attempt to prohibit the use or registration of the Trade Name or any similar name or designation by any other Licensee of the Licensor.

6.10.10 Not to use the intellectual property otherwise than as permitted by this Agreement."

30. It thus appears clear form this agreement that defendant No.3 did not authorise defendant No.1 to use the trade-mark NECTAR. Authorisation appears to be only in respect of the trade-name NECTAR. In para 4.1 it has categorically been stated that licensor grants to the licensee the rights defined in clause 3.13 above. On perusal of para 3.13, it is to be found that the right assigned is in the name of NECTAR. On perusal of para 3.6.1, 3.6.2, 3.6.4 and 3.6.5, the, prima facie, reasonable inference is that the trade-mark, copy right and designs have not been assigned by defendant No. 3 to defendant No.1. Para 2.3 clearly says that the licensee is duly authorised to use the trade-name NECTAR in its corporate name by the licensor.

31. In view of the above position, defendant No.1 has assignment of only the trade-name from defendant No.3. As such, he cannot be said to own the trade-mark NECTAR through defendant No. 3. If it has used trade-mark NECTAR on its cosmetics products in spite of agreement dated February 29, 1996 between it and defendant No. 3, this is a matter between it and defendant No. 3. In these circumstances, in my opinion, defendant No.1 cannot base its case against the plaintiff on the basis of any claim of ownership of trade-mark NECTAR by defendant No. 3. The arguments of Mr. Arun Jaitley and Mr. M.L. Bhatt regarding ownership of trade-mark NECTAR by defendant No. 3 vis-a-vis that of the plaintiff would be material only when the disputes would be considered and heard between the plaintiff and defendant No.3. Since these two applications of the plaintiff are against defendant No.1 only, I refrain from making any observations here in respect of these arguments.

32. It was also urged from the side of defendants that plaintiff got assigned the rights of proprietorship concern Herb Shop in respect of trade-mark NECTAR in 1998, that is to say, during pending of the suit for a sum of rupees one hundred only and, therefore, the goodwill of the Herb Shop in respect of its products under the trade-mark NECTAR was negligible and that could not be taken as a reputation built by said proprietorship firm in India in respect of trade-mark NECTAR. Since in this order, I am dealing with the plaintiff company's direct commercial activity only and have taken into consideration the third limb of arguments of plaintiff's counsel, as mentioned in para 21 of this order. I am not giving consideration to any reputation and goodwill of the proprietorship concern Herb Shop in respect of its products under the trade-mark NECTAR.

33. The plaintiff appears to be a prior user of the trade-mark NECTAR in respect of lipsticks or other cosmetics products as compared to defendant No.1. Therefore, defendant No.1 may, till the disposal of the suit be restrained from using the trade-mark NECTAR in respect of lipsticks or other cosmetics products. It is ordered accordingly.

34. In view of the discussion made in para 13 of this order, there is no interim injunction against defendants No. 2 to 4.

35. In view of discussion made in paras 4 and 5 of this order, order dated July 30, 1998 passed in I.A. No. 6026/98 is made absolute till disposal of the suit.

36. It is, however, made clear that this order does not deal with any contest between the plaintiff and defendants 2 and 4 and the same is kept open.

37. It is also, however, made clear that any observations made in this order are prima facie in nature and shall not have any bearing on the merits of the suit.

I.As. No. 5042/98, 5373/98 and 6026/98 are disposed of. Order dated July 2, 1998 gets merged in this order.