M/S Three-N-Products Private ... vs M/S Holistic Health Care Private ...
2010 Latest Caselaw 1773 Del

                  THE HIGH COURT OF DELHI AT NEW DELHI

%                                                   Judgment Reserved on: 21.01.2010
                                                    Judgment delivered on: 06.04.2010

                              IA No. 12561/2009 & IA No. 13358/2009
                                     in CS(OS) No. 1839/2009



M/S THREE-N-PRODUCTS PVT LTD                              ..... PLAINTIFF

                                                  Vs


M/S HOLISTIC HEALTH CARE PVT LTD                          ..... DEFENDANT


Advocates who appeared in this case:

For the Plaintiff :      Mr Sudhir Chandra, Sr. Advocate with Mr Gopal Trivedi, Ms Sonal Madan &
                         Mr Chetan Chadha, Advocates
For the Defendant:       Mr Ravi Gupta, Sr. Advocate with Mr Vikramajit Banerjee & Mr Sumit Attri,
                         Advocates

CORAM :-
HON'BLE MR JUSTICE RAJIV SHAKDHER

1.

Whether the Reporters of local papers may be allowed to see the judgment ? Yes

2. To be referred to Reporters or not ? Yes

3. Whether the judgment should be reported Yes in the Digest ?

RAJIV SHAKDHER, J

IA No. 12561/2009 (O.39 R.1&2 CPC by pltf.) & IA No. 13358/2009 (O.39 R.4 of CPC by Deft.)

1. By this order, I propose to dispose of the captioned interlocutory applications

(hereinafter referred to singularly as „IA‟ and collectively as „IAs‟). IA No. 12561/2009

has been filed by the plaintiff under the provisions of Order 39 Rule 1 & 2 of the Code of

Civil Procedure, 1908 (hereinafter referred to as the „CPC‟) and IA No. 13358/2009 has

been filed by the defendant under the provisions of Order 39 Rule 4 of the CPC for

seeking vacation of the order dated 25.09.2009.

2. First let me articulate the plaintiff‟s case.

2.1 The plaintiff was initially constituted as a partnership firm which was reorganized

into a private limited company w.e.f. 01.01.1993. The plaintiff claims that it is engaged

in the manufacture and marketing of bleaching preparations, soaps, cosmetics, lotions,

essential oils, cream, scouring, kumkum, nail polish and other beauty care products. It is

also claimed by the plaintiff that it is in the business of providing services related to

health and beauty care for the past several years. The plaintiff also claims that it provides

treatment for neuro-muscular disorders, hemiplegia, chronic, rheumatic disorders,

neurological disorders etc. and for rejuvenation etc. It is averred that the plaintiff is

running an institute under the name „AANB‟ which is an acronym for "Ayur Academy of

Natural Beauty".

2.2 It is further averred that the plaintiff is a registered proprietor of trade mark

„AYUR‟ in classes, 3, 5, 16, 21, 29, 30, 31, 32, 33, 34, 41 and 42. It is averred that the

plaintiff‟s mark „AYUR‟ has a global reputation which has been bonafidely adopted by it

since 1984. It is claimed that since then the plaintiff has been using this trade mark

„AYUR‟ openly, extensively and exclusively in relation to its businesses.

2.3 It is specifically averred that the plaintiff is providing services under class 42 of

Fourth Schedule of the Trade Marks Act, 1999 (hereinafter referred to as the „Trade

Marks Act‟) which includes amongst other services, beautician services, massage

services, health farm, beauty spa, beauty treatment, manicuring, provision of sauna

facilities, solarium facilities, consultancy services, nutrition and beauty care and cosmetic

care services.

2.4 It is also averred that the products of the plaintiff falls in various classes including

the ones that fall in classes 3 and 5 which are directly related to the services provided by

the plaintiff. The plaintiff has further averred that the defendant had sought registration

of its trade mark „AYURCARE‟ in classes 5 and 42 vide two separate applications being

no. 1398930 and 1398929 of even date, i.e., 14.11.2005, respectively. These

applications were advertised in the trade mark journal bearing nos. 1373 (Regular) and

1374(Regular) on 01.08.2007 and 16.08.2007. The plaintiff, on coming across the said

advertisements of the defendant‟s mark, filed a notice of opposition in accordance with

the provisions of Section 21(1) of the Trade Marks Act.

2.5 It is, in connection with the above, averred by the plaintiff (in paragraph 19 of the

plaint) that the defendant in respect of its application under class 5 for registration of its

mark „AYURCARE‟ withdrew the same. For this purpose the plaintiff has relied upon

the letter dated 18.01.2008 issued by the defendant‟s attorneys Daswani & Daswani. It is

also averred that the defendant abandoned its other applications filed for registration of

its mark „AYURCARE‟ under class 42. To be noted, this aspect of the matter has been

vociferously disputed by the defendant. I have dealt with this aspect in the latter part of

my judgment.

2.6 In view of the above the plaintiff has averred that it did not pursue the matter any

further; however, in the third week of August, 2009 the plaintiff came across brochures

and pamphlets issued by the defendant with respect to free consultation camps, which the

defendant was supposed to hold at an Ayurvedic Wellness Center going by the name of

„AYURCARE‟ situate at B-368, 1st Floor, Meera Bagh, Paschim Vihar, Delhi- 110063.

It is averred that the defendant‟s adoption of deceptively similar trade mark, i.e.,

„AYURCARE‟ is malafide. It is stated that the infringement of the plaintiff‟s trade mark

has been carried out by the defendant with the sole purpose of encashing the reputation

and goodwill of the plaintiff. It is averred that the plaintiff‟s registered mark „AYUR‟ is

distinctive of the goods manufactured and sold, as also services offered by the plaintiff.

It is thus the case of the plaintiff that not only has the defendant infringed the registered

trade mark of the plaintiff, but also has committed tort of passing off its goods and

services as those manufactured and rendered by the plaintiff only to make wrongful gains

at the expense of the plaintiff. It is further averred that the defendant‟s trade mark

„AYURCARE‟ is visually, phonetically and structurally similar to the plaintiff‟s

registered trade mark „AYUR‟, and hence would cause confusion in the minds of unwary

customers as to the origin and source of the goods and services offered by the plaintiff.

Defendant‟s case

3. The defendant claims that it is involved in providing traditional and traditional

inspired healthcare services. The said business, the defendant claims, is carried out

under the name and style of "AYURCARE" under the tag line "Ayurcare: The Ayurvedic

Wellness Centre".

3.1 It is the stand of the defendant that it first started its business in the city of

Hyderabad in 2005; followed by a center in the city of Bangalore, in 2007. The

defendant contends that at the aforementioned wellness centers it offers various types of

therapies and other health care spa services as also services for wellness of body and

spirit through both traditional as also modern Indian and International techniques. It is

contended that the defendant‟s centers are popular with the public at large and, have thus

been extensively covered by the press. The consequent publicity, that the defendant has

received, is evident from the press coverage it has received since 2006. It is contended

that even though there has been extensive use of the word mark „AYURCARE‟ by the

defendant since 2006 no action was taken by the plaintiff and consequently the objection,

if any, stands waived in respect of the use of the word „AYUR‟ (as part of its mark

„AYURCARE‟) by the defendant. This is without prejudice to the defendant‟s right that

the plaintiff did not have a legal right in the word „AYUR‟.

3.2 The defendant has specifically clarified the fact that even though it had filed an

application for registration of its mark „AYURCARE‟ in both classes 5 and 42 of the

Fourth Schedule of the Trade Marks Act it had only abandoned its application under class

5 after it was opposed by the plaintiff because of the joint venture business, which the

defendant had conceived of which, did not bear fruit. It is specifically denied that the

defendant had abandoned its application filed under class 42 as alleged or at all.

3.3 It is contended that the defendant‟s application for registration of its trade mark

filed under class 42 is pending adjudication. It is not disputed, however, that even the

application filed under class 42 by the defendant has been opposed by the plaintiff.

3.4 It is further contended that the plaintiff has never been in the business of

providing traditional massage therapies or services which is a business which falls under

class 42 of Fourth Schedule of the Trade Marks Act. It is contended that the plaintiff, if

at all, is providing such services under the name and style of "AANB Rejuvenation" and

not „AYUR‟. Even though the receipts filed by the plaintiff in respect of the said

business are in the name of "Ayur Academy of Natural Beauty" the business is not

conducted under the said name. The receipts filed are also for the period of 2006

onwards, which are written in hand, and hence demonstrate that the plaintiff has had a

negligible business in this sector. The plaintiff‟s business in class 42 is restricted to

beauty care which is outside the purview of the services offered by the defendant. The

word „AYUR‟ has been adopted by a large number of manufacturers and traders in the

market. A large number of registered trade marks have „AYUR‟ as part of their trade

mark, and such goods, are freely available in the market. Therefore, the plaintiff cannot

lay an exclusive claim over the word mark „AYUR‟. The word mark „AYUR‟ is a

generic Hindi word which lacks distinctiveness. On the other hand, the defendant‟s

mark „AYURCARE‟ is a coined and invented term. The defendant has denied that the

word „AYUR‟ is either distinctive or has become synonymous with the plaintiff in

connection with goods and services offered by the plaintiff. It is also denied that the

plaintiff enjoys any goodwill and reputation especially in relation to therapeutic services

or that the defendant‟s mark „AYURCARE‟ is deceptively similar to the trade mark of

the plaintiff.

Submissions of Counsels

4. In support of its case Mr Sudhir Chandra, learned senior counsel appearing for the

plaintiff, apart from reiterating the submissions made in the plaint, laid stress and sought

to clear the controversy surrounding the averment made in the plaint with regard to the

alleged abandonment by the defendant of its application under class 42. It was submitted

that in January, 2005 the defendant had applied for registration of the mark Dhanwantri

Ayur Clinic The Super Speciality Ayur Vedic Therapy Centre vide application no.

1335151. The said application was filed in class 42. The application was published in

the journal 1336 (Regular) dated 15.11.2005. To this application an opposition was filed

by the plaintiff on 06.07.2006 vide opposition no. MAS 229516. The defendant chose

not to file any counter statement to the opposition. The application was clearly

abandoned as is demonstrable from the order of the Deputy Registrar dated 20.02.2008.

4.1 There was another application filed by the defendant being application no.

1398929 dated 14.11.2005 for registration of its mark „AYURCARE‟ under class 42.

This application was published in the trade mark journal as 1374 (Regular) dated

16.08.2007. This journal was made available o the public on 30.10.2007. As is evident,

on a perusal of the said application the defendant had indicated that it "proposed" to use

the mark.

4.2 It was submitted that there was a third application filed by the defendant being no.

1398930 dated 14.11.2005 for registration of its mark „AYURCARE‟ in class 5. This

application was published in journal 1373 (Regular) dated 01.08.2007. The journal was

made public on 25.10.2007. The defendant had claimed user from the date of the

application, i.e., 14.11.2005. The plaintiff filed its opposition to the said application vide

its opposition bearing no. MAS-713888 dated 15.12.2007. This application the defendant

withdrew after an opposition was filed by the plaintiff.

4.3. It was submitted that in view of the defendant having withdrawn its application

under class 5 there was, therefore, no user by the defendant of the applied mark in class

5; similarly the abandonment of the defendant of its application no. 1335151 in class 42

for registration of its mark Dhanwantri Ayur Clinic The Super Speciality Ayur Vedic

Therapy Centre, after the counterstatement had been filed by the plaintiff would show

that it recognized the right of the plaintiff. The learned counsel submitted that the reason

given by the defendant for abandoning its application; which was, the failure of the joint

venture was clearly an after thought. It was abandonment of this application in class 42

which led to the inadvertent averment in paragraph 19 of the plaint.

4.4 Mr Chandra submitted that the plaintiff has adopted the mark „AYUR‟ since

1984. The plaintiff has using the mark extensively for its goods and services. While

„AYUR‟ was used by the plaintiff in respect of its goods under classes 3 and 5 it was

extended to services under class 42 in the year 1985. The registration in respect of it was

obtained vide certificate bearing no. 1244815 dated 22.10.2003 after services were

brought within the ambit of the Trade Marks Act.

4.5 It was further contended that this court in the judgment entitled Three-N-

Products Pvt. Ltd. vs Yaswant & Ors 2002 (24) PTC 518 (Del.) has recognized the

plaintiff‟s right in the mark „AYUR‟. The defendant, on the other hand, has been using

the name Dhanwantri Vaidyashala at least till 14.11.2005 since it applied for the mark

„AYURCARE‟ only on 14.11.2005 under classes 5 and 42 of the Fourth Schedule of the

Trade Marks Act. In these circumstances, Mr Chandra claimed that it has not only a

good prima facie case but the balance of convenience also lie in favour of the plaintiff.

4.6 As regards delay it was contended that delay is no defence in a case of

infringement. Reliance in this regard was placed on Midas Hygiene Industries (Pvt) Ltd

vs Sudhir Bhatia & Co 2004 (28) PTC 121 (SC). In any event, it was submitted that,

there is no delay in filing the suit. The defendant‟s adoption of the plaintiff mark is

dishonest. The learned senior counsel relied upon the following judgments:

Ayurherbs Pharmaceuticals Pvt. Ltd vs Three-N-Products Pvt Ltd 141 (2007) DLT 609; Laxmikant V. Patel vs Chetanbhat Shah & Anr 2002 (24) PTC 1 SC; Ambalal Sarabhai Enterprises vs Ms Sarabhai Pharmaceuticals & Ors 1982 PTC 214; and M/s Avis International Limited vs M/s Avi Footwear Industries & Anr AIR 1991 Del. 22.

5. The learned senior counsel for the defendant Mr Ravi Chopra, while reiterating

the stand of the defendant taken in the pleadings stressed upon the following:

(i) that the interim order was obtained by the plaintiff by misleading the court with

regard to the fact that the defendant had abandoned its application under class 42

whereas, the defendant‟s application was pending adjudication. For this purpose reliance

is placed on the written statement made in paragraph 14 of its application under Order 39

Rule 4 of the CPC;

(ii) he further stressed the fact that the plaintiff‟s registration in class 42 is limited to

„beauty care‟ and hence, would not extend to the therapies and other cognate services

offered by the defendant; and

(iii) lastly, that the defendant had applied on 13.10.2009 for cancellation of plaintiff‟s

trade mark under class 42 and the same is pending adjudication.

5.1 In support of its case the defendant placed reliance on the following judgments:

Warner Bros. Entertainment Inc and Anr. vs Harinder Kohli 2008 X AD (D) 508; Om Prakash Gupta vs Praveen Kumar 2001 VII AD (D) 1137; Udai Chand vs Shankar Lal & Ors. AIR 1978 SC 765; Uniply Industries Ltd vs Unicorn Plywood Pvt. Ltd. & Ors. 2001 (5) SCC 95 and S.M. Dyechem vs Cadbury (India) Ltd. 2000 (5) SCC 573.

Reasons

6. I have considered the case set up by both parties in their pleadings as well as

heard the submission of counsels in support of their respective cases. The plaintiff has

undoubtedly obtained registration with respect to the word mark „AYUR‟ in the

following classes: under classes 3, 5, 10, 13, 14, 15, 16, 18, 20, 21, 29, 30, 31, 32, 33, 41

and 42 in India. It has also obtained registration in classes 3, 5, 16, 21, 29, 30, 33 and 42

in Britain and Northern Ireland; under classes 9, 24 and 25 in Bhutan; under classes 5,

16, 21, 30 and 33 in Nepal; under classes 3, 5, 16, 21, 29, 30, 33 and 44 in New Zealand;

in classes 3, 5, 16, 21, 29, 30 and 44 in Australia; under classes 3, 5, 16 and 30 in U.A.E.;

under classes 3, 5, 16, 21, 29, 30, 33 and 42 in U.K.; in classes 3, 5, 33, and 42 in South

Africa; in classes 25, 35 and 41 in Benelux; in classes 3, 16, 29, 30, 31, 41 and 44 in

Malaysia; and under class 5 in Pakistan. The plaintiff has also provided his sales

revenue figures for the year 1984-85 in which it grossed a turnover of Rs 1.27 lacs. This

has, in the year ending 2006-07, increased to Rs 48.06 crores. Similarly, the plaintiff has

indicated that its advertisement spend has increased for Rs 4,980/- in 1984-85 to Rs 42.30

lacs for the year ending 2006-07. Similarly, the plaintiff has also filed copies of

magazine entitled „Pearl Beauty‟ which relates back to July-September, 2003 to

demonstrate that it has been offering beauty and health care services which includes

personality development, panchkarma (Ayurvedic Therapeutic Treatments), Meditation

& Stress Management, Health & Fitness (Yoga, Aerobics & Dance Classes), Abstract

Body Art, Acupressure and Su-Jok, Spiritual and Wholistic Healing, Personal Grooming,

Cosmetology and Aesthetic Skin Diploma under "Ayur Academy of Natural Beauty".

This title is used alongside the acronym AANB. The plaintiff has also filed invoices of

treatments given and fee charged by its division AANB rejuvenation. In my view, the

plaintiff has been able to, at least prima facie, establish that the trade mark „AYUR‟ is

well known and associated with the goods and services offered by it. The submission of

the defendant that the plaintiff‟s registration in class 42 is limited to beauty care is not

quite accurate. While the academy run by the plaintiff AANB (as indicated above a term

which is a shortened version of „Ayur Academy of Natural Beauty‟) offers courses for

both beauty and health care, its division under the name AANB Rejuvenation seems to

render services even for health care. The submission of the plaintiff in this regard is,

according to me, untenable. A bare perusal of the registration certificate would show that

the plaintiff has obtained registration in class 42 for the following services:

"Beautician Services, Massage Services, Health Farm, Beauty Spa, Beauty Treatment, Manicuring, Provision of Sauna Facilities, Provision of Solarium Facilities, Consultancy Services in the field of Herbal Remedies, Nutrition and Beauty Care, Cosmetic Research Services included in class 42."

7. The defendant has claimed that it has been in the business of offering traditional

health services under the impugned mark "Ayurcare" under the tag line "Ayurcare: The

Ayurvedic Wellness Centre" only from 2005. It has admitted that the first centre was

opened in 2005 in the city of Hyderabad, while the second centre was opened in

Bangalore in 2007. As against this the plaintiff‟s registration in class 42 relates back to

05.12.2003. The plaintiff has thus made prior use of the mark „AYUR‟. In these

circumstances, I am of the opinion that the plaintiff is entitled to enforce its rights as a

registered proprietor of the mark „AYUR‟. Even if, for the sake of argument, it was

assumed that the plaintiff was not in the same line of business as that of defendant, since

the plaintiff at least prima facie has been able to establish that its mark is well known and

acquired wide reputation not only in India but also in various countries across the globe;

the plaintiff ought to in my view be in a position to enforce its statutory rights under the

Trade Marks Act, in the circumstances, that the defendant‟s use of the mark is not only

detrimental to the distinctive character and repute of the registered trade mark of the

plaintiff but also has been used by the defendant to take unfair advantage.

8. The other submission of the learned counsel for the defendant that the plaintiff

has obtained the injunction by misleading the court seems to have been satisfactorily

explained by the plaintiff. It is quite clear that the defendant had abandoned its

registration of the mark Dhanwantri Ayur Clinic The Super Speciality Ayur Vedic

Therapy Centre filed under class 42 as is evident from the order of the Deputy Registrar

dated 20.02.2008. The plaintiff it seems inadvertently referred to defendant‟s

application bearing no. 139829 dated 14.11.2005 filed for registration of its word mark

„AYURCARE‟ in class 42 as the one having been abandoned. This mistake appears to

be unintended. The fact remains that defendant has not only withdrawn its application

under class 5 for registration of its mark „AYURCARE‟ but also, as indicated above,

abandoned its application for registration of the mark Dhanwantri Ayur Clinic The Super

Speciality Ayur Vedic Therapy Centre filed under class 42. Moreover, the defendant has

been an entrant in the business admittedly since 2005, and is said to have acquired

exclusive user of the mark „AYURCARE‟ only in the year 2006; as against this, the

plaintiff has been using the mark „AYUR‟ in relation to its goods and services for a much

longer period of time. As indicated above, the plaintiff has expended a vast amount of

money towards advertisement and has substantially increased its revenue since it first use

of the mark in 1984-85. Therefore, given the large turnover of the plaintiff and the extent

of use both in geographical terms as well as in terms of time frame the balance of

convenience appears to be in favour of the plaintiff. The defendant, on the other hand,

has not made any averment in the written statement or its application under Order 39

Rule 4 of the CPC with regard to its sales revenue or advertisement expense. Taking a

holistic view of the matter, I am of the opinion that on a balance the interim order dated

25.09.2009 deserves to be confirmed.

9. The submission of the defendant that the word „AYUR‟ is common or a

descriptive word and hence the plaintiff cannot have monopoly over it is a submission

which cannot be countenanced in the facts of the present case at this stage at least. It

cannot be said, as absolute proposition of law, that a common or a descriptive word mark

cannot attain trade mark significance. Much depends on the distinctiveness that the

mark acquires on account of its use by the proprietor. In the instant case at this stage it

appears that the plaintiff has been able to demonstrate that the mark „AYUR‟ has become

distinctive of the products and services offered by the plaintiff.

10. The other submission of the learned counsel for the defendant that injunction

should be vacated on the ground of delay in approaching the court is also untenable. The

defendant‟s claim that the plaintiff was aware of the fact that it was using the impugned

mark since 2006 is explained, in the facts of this case, by reference to the conduct of the

defendant. It is not disputed that the defendant withdrew its application for registration

of the mark „AYURCARE‟ under class 5 which was communicated by the defendant‟s

attorney Daswani & Daswani to the plaintiff vide their letter dated 18.01.2008. It is also

not disputed that the defendant had withdrawn its application for registration of its mark

Dhanwantri Ayur Clinic The Super Speciality Ayur Vedic Therapy Centre after an

opposition was filed by the plaintiff; a fact which came to be recorded in the Deputy

Registrar‟s order dated 20.02.2008. Therefore, there is nothing on record to disbelieve

the averment of the plaintiff that they came to know about the defendant‟s impugned

actions only in August, 2009 when they came across of the brochures and pamphlets with

respect to the defendant‟s use of the mark „AYUR‟ in August 2009. The plaintiff

approached the court immediately thereafter, in September, 2009. Therefore, in my view

there has not been delay, of the kind, which would disentitle the plaintiff from seeking

protection of this court. In any event, delay and latches itself cannot come in the way of

seeking enforcement of a statutory right conferred on the plaintiff pursuant to registration

of its mark „AYUR‟. [see Midas Hygiene (supra) and Bihar Tubes Ltd vs Garg Ispat

Ltd CS(OS) 1633/2009 dated 26.10.2009].

11. The judgments cited by the defendant in the case of Warner Bros (supra), Om

Prakash Gupta (supra) and Udai Chand (supra) are predicated on a deliberate

suppression of material facts. As indicated by me above, the plaintiff‟s assertion with

regard to abandonment of the defendant‟s application under class 42 was unintended. On

facts the said judgments are distinguishable.

11.1 The case of Uniply Industries Ltd (supra) is also distinguishable on facts. In this

case the appellant, who was in the business of manufacturing quality plywood, laminates,

block boards etc., claimed that it had established its business in 1996 and was selling its

goods under the trade marks Uniply, Uniboard and Uniwud. The appellant also claimed

before the Court that it has registered office in Tamil Nadu and branches in Kerala,

Karnataka and Andhra Pradesh with distributors and agents in Maharashtra, Gujarat,

Delhi and Calcutta. The respondent, on the other hand, claimed that it had established a

small-scale industry in 1993 in the same field of activity, i.e., manufacture of plywood

which was sold under the trade mark Uniply, Uniboard and Unidoor. Both the appellant

and the respondent filed suits in the year 1999. While temporary injunction in the case

of respondent was declined, an interim order came to be passed in the appellant‟s case,

which was revoked subsequently, on the trial court taking the view that the respondent

had been able to establish that it had set up its factory in 1993-94 and, since then have

been using the aforementioned marks. It is in these circumstances that the court in

paragraph 7 observed that:

"7. It is no doubt true that advertisement of goods had been made by the respondents in 1993 itself. Whether that was followed up by goods being dealt with the trade marks in question is not clear as is to be seen by the following discussion:...."

11.2 After posing the question the court came to the conclusion that in this case the

trial court will have to come to a conclusion with regard to prior user. The court below

according to the Supreme Court merely looked at the prima facie case when it was

required to consider other aspects of the matter, including the fact that the appellant may

have honestly and concurrently used the trade mark. It is, in these circumstances, the

Supreme Court declined to grant injunction either in favour or against the appellant.

11.3 In the instant case, as discussed above, the plaintiff has obtained a registration in

class 42 which relates back to 05.12.2003. The defendant has admitted use of the mark

only since November, 2005 onwards when an application for registration of the mark

„AYURCARE‟ in class 42 was filed. The defendant has admittedly abandoned its earlier

registration under class 42 as noticed above, as also in class 5. Therefore, on facts the

case of Uniply Industries Ltd (supra) is not applicable.

12. It may only be pointed that S.M. Dyechem Ltd (supra) stands overruled by the

judgment of a larger bench in the case of Cadila Health Care Ltd vs Cadila

Pharmaceuticals Ltd (2001) 2 SCC 73. The learned senior counsel for the defendant has

relied upon the observations made in paragraph 19 to 21 of the judgment. Applying the

principle enunciated in the case of S.M. Dyechem Ltd (supra) bearing in mind that the

said observations perhaps remained unaffected by the decision in Cadila Health Care Ltd

(supra) and on a comparative assessment of the plaintiff case with that of the defendant

in the instant case, I am not persuaded to hold that the plaintiff‟s case is weak. On the

other hand, in view of the discussions above, I am of the view that the plaintiff has made

out a strong prima facie case as also the balance of convenience is entirely in favour of

the plaintiff. In the event the interim order dated 25.09.2009 is not confirmed the

plaintiff‟s interest may be jeopardized.

13. Accordingly, in my considered opinion the injunction order dated 25.09.2009 is

confirmed. IA No. 12561/2009 of the plaintiff is allowed and that of the defendant being:

IA No. 13358/2009, is dismissed. Needless to say any observations made hereinabove

will not be held against the defendant at the stage of final adjudication.

RAJIV SHAKDHER, J APRIL 06, 2010 kk