Delhi High Court

M/S. M.K. Petro Products India ... vs M/S. M.K. Bitumen Products on 3 June, 2011

Author: Manmohan Singh

*             HIGH COURT OF DELHI : NEW DELHI


+    IA No.6820/2010 & IA No.7763/2010 in CS (OS) No.1019/2010


%                                    Judgment decided on : 03.06.2011

M/S. M.K. PETRO PRODUCTS INDIA PVT. LTD. ......Plaintiff
                 Through: Mr. P.R. Sikka, Adv. with Mr. V.K.
                          Gupta, Adv.

                        Versus


M/S. M.K. BITUMEN PRODUCTS                     .....Defendant
                 Through: Mr. Narender Kalra, Adv.

Coram:

HON'BLE MR. JUSTICE MANMOHAN SINGH

1. Whether the Reporters of local papers may
   be allowed to see the judgment?                         No

2. To be referred to Reporter or not?                      Yes

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

MANMOHAN SINGH, J.

1. The plaintiff has filed this suit for permanent injunction

restraining infringement of trade mark, passing off, rendition of account,

damages etc. against the defendant. The plaintiff is a private limited

company running its business as manufacturers and dealers of the

petroleum products including bitumen and also producers, refiners, stores

supplies and distributors of petroleum and petroleum products. The said

products of the plaintiff are being sold throughout India and the plaintiff is

having a good marketing and selling network.

2. It is submitted by the plaintiff, that it has established its

brand "MK" with variation of many marks used as suffix with the main

mark "M.K." throughout India for the last more than 22 years. The mark

"M.K." is also dominent/essential and key portion of its corporate name.

The plaintiff has mentioned the statement of its net sale from the year

2006 onwards in the plaint. The plaintiff has also produced the

advertisement expenses incurred by the plaintiff from the year 2005-06

onwards in relation to their products and for promoting the same.

M/s.Rishab Petro Chemicals, which is a sister concern of the plaintiff

company, is the registered owner of trademark "MAKKOTE" under

Registration No.948233, which has been assigned in favour of the

plaintiff by virtue of the Assignment Deed.

3. In addition to that, the plaintiff is the registered proprietor of

the following trademarks in Class 19 :-

     TRADEMARK              REGISTRATION               DATE                 OF
                            NO.                        REGISTRATION
     MAK                    948239                     26.04.2005
     MAKFILLEX              948240                     14.06.2005
     MAKPLAST               948242                     14.06.2005
     MAKSRB                 948234                     14.06.2006 By Assignment
     MAKPOLY                960730                     14.03.2005 By Assignment
     MEMBRANE
     MAKKOTE                948233                     14.03.2005 By Assignment
     MAKPOLY KOTE           948235                     23.03.2005 By Assignment
     MAKPOLY PLAST          948232                     20.12.2004 By Assignment
     MAK SILER              948238                     12.03.2005
     MAK PMB                960731                     16.02.2005
     MAKOUTERWRAP           948237                     17.02.2005
     MAKPOLY                694373                     03.02.2005
     BITUMEN
     MAKCRMB                960723                     16.02.2005

4. By virtue of the above, the plaintiff is selling and marketing

the above-mentioned products bearing trademark "M.K." and

"MAKKOTE" and the plaintiff claims itself to be the proprietor of the

said trademarks.

5. The plaintiff alleges that Sunil Kumar Sharma, one of the

partners of the defendants, was employed with the plaintiff company, who

was looking after the entire sale and purchase of the plaintiff company

and also having contacts with the customers, dealers and distributors of

the plaintiff company. This fact was not denied by Sunil Kumar Sharma

when he was present in court during the hearing of the interim

application.

6. The allegation made by the plaintiff against the defendant is

that after leaving the job, Mr. Sunil Kumar Sharma started his own firm

namely M/s.M K Bitumen Products having their business activities at

Ballabgarh, District Faridabad in partnership with Mr. Dinesh and Mr.

Pratap.

7. It is stated by plaintiff that the plaintiff was informed by one

of its dealers, M/s.Shiv Sons, situated at 5214, G. B. Road, New Delhi,

that the defendant had sold the products under the name of "MKKOTE"

to him vide Invoice No.031 dated 29.12.2009 for a sum of Rs.95,013/-

and also on 28.04.2010, the plaintiff had contacted M/s.H D Gajra

Brothers, one of its distributors for quotation and then the plaintiff was

informed by the said distributor that Sunil Kumar Sharma and Dinesh,

partners of the defendant company, had misrepresented him in the last

month and collected the quotation on behalf of the plaintiff.

8. Similarly M/s. Bharkra Byas Management Board, who used to

issue tender forms regularly to the plaintiff was also contacted by the

plaintiff and they also informed the plaintiff that the tender form was

collected by the said Sunil Kumar Sharma, the ex-employee of the

plaintiff company, thereby misrepresenting himself as an employee of the

plaintiff company. The defendant also approached through EMAIL,

another dealer of the plaintiff namely M/s.Groutech Engineers Pvt. Ltd.

And the defendant also sent to them quotation through EMAIL, which

was forwarded by the customer on 23.03.2010 thereby intimating that the

said Sunil Kumar Sharma, one of the partners of the defendant, who was

the ex-employee of the plaintiff, was trying to snatch the business of the

plaintiff.

9. It is alleged in the plaint that the name of the defendant‟s

partnership firm, M/s. M.K. Bitumen Products, is also similar to the

plaintiff‟s company name, M/s. M K Petro Products India Private Limited

and the defendant at the same time, is also manufacturing the similar

products as that of the plaintiff under the same specifications in order to

confuse the manufacturers/suppliers of the products of the plaintiff by

creating confusion and by misrepresentation. The said user of the

defendant is unauthorised, without consent and licence of the plaintiff,

therefore, the defendant is guilty of infringement of exclusive rights of the

plaintiff and passing of their products as having originated from the

plaintiff.

10. The suit as well as the interim application was first time listed

on 19.05.2010 when the Court had passed an ex parte ad interim

injunction order thereby restraining the defendant, its employees, agents

and servants from using in the course of its business the registered marks

of the plaintiff or any other mark which is deceptively similar to the

plaintiff‟s mark. Upon service, the defendant filed the written statement

as well as the application under Order 39 Rule 4 CPC being IA

No.7763/2010 for vacation of the injunction order.

11. The main contention of the defendant is that the trademark

"MK" adopted and used by the defendant is registered and the defendant

is, therefore, authorised by virtue of the said registration to run its

business with the said trademark. The defendant‟s name M/s. M.K.

Bitumen Products is also registered with the Sales Tax authorities and the

two rival trademarks and trade names are entirely different. The search

report also does not show that M/s. M/s.M K Petro Products India Private

Limited is the owner of the trademark "M.K." as alleged by the plaintiff.

Further, it is contended that no assignment deed has been produced by the

plaintiff in order to substantiate its claim of being the assignee of the said

trademark. As defendant‟s trademark "MK", is registered under

No.1892625 as of 07.12.2009 in respect of manufacturing of Asphalt,

Pitch and Bitumen and the registration Certificate was issued on

24.03.2011. Therefore, the defendant is entitled to use the same.

12. In IA No.7763/2010, the defendant has also placed the

visiting card of one of its Director, Shri Dinesh Moorayil, where the

trademark "MK" is shown and the firm‟s name M/s. M.K. Bitumen

Products is also mentioned. The defendant has also produced the visiting

card of the plaintiff where trademark of the plaintiff is also shown as well

as the name of the plaintiff firm M/s. M. K. Petro Products India Private

Limited is mentioned.

13. I have perused the pleadings as well as the documents placed

on the record by the parties. The plaintiff has produced the copy of the

assignment deed dated 12.05.2010 between M/s.Rishab Petro Chemicals

and the plaintiff whereby the said sister concern of the plaintiff, M/s.

Rishab Petro Chemicals, has assigned the trademarks bearing Registration

Nos.960730, 948233, 948232, 948235 and 948234 for the trade mark and

Logo "MAKPOLY MEMBRANE, MAKKOTE, MAKPOLY PLAST,

MAK PLOLYKOTE and MAKSRB" in Class 19. The plaintiff has also

produced the registration certificate pertaining to the trademarks "MAK,

MAKFILLEX, MAKPLAST, MAKSRB, MAKPOLY MEMBRANE,

MAKKOTE, MAKPOLYKOTE, MAKPOLY PLAST, MAKSILVER,

MAK PMB, MAKOUTERWRAP, MAKPOLY BITUMEN and

MAKCRMB". The plaintiff has also filed the sample of the

advertisement in order to show the goodwill of its trademark.

14. The plaintiff has filed Invoice No.031 dated 29.12.2009 issued

by the defendant to M/s.Shiv Sons along with the plaint as well as

EMAILs by the customer. And the print out material of the Membrane

showing similar trade name has also been filed.

15. From the said material as well as the pleadings of the parties,

the following facts are crystal clear :-

a] that the plaintiff is carrying its business for the last more than 22 years under the name and style of M/s. M. K. Petro Products India Pvt. Ltd.;

b] that the managing partner, Mr. Sunil Kumar Sharma, of the defendant was ex-employee of the plaintiff company; c] that the defendant firm is admittedly using the plaintiff firm‟s name as M/s. M.K. Bitumen Products, in which the essential feature of the trademark and trade name "MK" forms part of it and all the trademarks used by the defendant contain the mark "MK" with or without suffix; and d] that one of the partner of the defendant, namely Mr. Sunil Kumar Sharma, after leaving the job of the plaintiff, has admittedly approached the customers/dealers/distributors of the plaintiff and used the name "M.K." and projected/misrepresented himself to be an employee of the plaintiff.

16. It is not in dispute that the mark M.K. is the essential and

permanent part of the plaintiff‟s company name/trading style. The

defendant has also not disputed the fact that the trade mark MAK which

is being used by the plaintiff throughout India for the last 22 years also

form the letters M.K. The defendant has admitted the fact that the main

partner of the defendant firm was the employee of the plaintiff company.

The defendant after leaving the job has admittedly used the trade mark

MK as well as the trading style M.K. Bitumen Products in which the

trade mark MK is the essential part of the trading style. Therefore, the

plaintiff has been able to make out a strong prima facie case for passing

off as the defendants are passing off their goods as that of the plaintiff.

The goods in question are the same. The defendant has also not

specifically denied the fact that after leaving the job, the defendant has

approached the dealers and distributors of the plaintiff. After considering

various judgments passed by the Supreme Court and the High Court, it is

clear that two trade marks as well as trading style are deceptively similar.

The defendant has in fact no justification whatsoever for using the similar

name as that of the plaintiff. Therefore, in case the injunction is not

granted, the plaintiff will suffer irreparable loss and injury in the goodwill,

name and reputation.

17. The chances of confusion and deception are enhanced because

of the reason that the managing partner of the defendant firm, Mr. Sunil

Kumar Sharma, was earlier the employee of the plaintiff company and he

was aware of the customers, dealers and distributors of the plaintiff. The

plaintiff has been able to establish its case by producing the evidence that

the said Sunil Kumar Sharma was approaching the customers of the

plaintiff. Therefore, the defendant, under no circumstances, is entitled to

use the plaintiff firm name as otherwise, the plaintiff will suffer an

irreparable loss and injury.

18. As far as the main defence of the defendant raised in the case

is concerned that the defendant is holding registration of the trademark

"MK" bearing No.1892625 as of 07.12.2009 in respect of manufacturing

of Asphalt, Pitch and Bitumen and the registration certificate was also

issued on 24.03.2011 and, therefore, the defendant is entitled to use the

same. It is a matter of fact, that the defendant is an ex-employee of the

plaintiff company, who left the job of the plaintiff company in the month

of November‟2009 and applied for the registration of the same trademark

within a period of one week after leaving the job of the plaintiff,

therefore, the filing of the application in the Trade Marks Office regarding

the same trademark in relation to the same goods, is a fraud committed by

the defendant. No application ought to have been filed by the defendant if

he is an honest trader. The defendant, therefore, is not entitled to take

any benefit of the said registration.

19. Even otherwise, in view of the settled law on this point in the

case of N. R. Dongre V/s. Whirlpool Corporation: AIR 1995 Del. 300,

the decision passed by the Hon‟ble Division Bench of this Court which

has been affirmed by the Hon‟ble Apex Court, the relevant paras thereof

are reproduced hereunder :-

"(28) We now proceed to consider the question as to whether the respondents can maintain an action for passing off against' the appellants who are the registered proprietors of the trade mark "WHIRLPOOL" in India. Learned counsel for the appellants submitted that the appellants have an exclusive right to use the trade mark "WHIRLPOOL" under Section 28(1) of the Act as they arc the registered proprietors of the same.In order to appreciate the submission of the learned counsel, it will be necessary to set out Section 28(1) of the Act. This Section reads as under:-

"28(1)Subject to the other provisions of this Act, the registration of a trade mark in Part A or Part B of the register shall, if valid, give to the registered proprietor of the trade mark the exclusive right to the use of the trade mark in relation to the goods in respect of which the trade mark is registered and to obtain relief in respect of infringement of the trade mark in the manner provided by this Act."

(29) According to Section 28(1) of the Act, registration of a trade mark gives to the registered proprietor thereof exclusive right to use the same in. relation to the goods in respect of which it has been registered. But from the opening words of Section 28(1) namely, "subject to other provisions" it is clear that the right conferred on a trader is not an indefeasible right as the same is expressly made subject to other provisions of the Act. This is further, made clear by Section 27(2) of the Act, which' provides that " nothing in this Act shall he deemed to affect the right of action against any person for passing off the goods as goods of another person or the remedies in respect thereof." Thus it is manifest that Section 28 of the Act and all other provisions come within the '" 'over riding sway of Section 27(2) of the Act. Similarly Section 33 of the Act also saves vested rights of a prior user. It lays down that nothing in the Act shall entitle a registered proprietor of a trade mark to interfere with the use of the trade mark by a prior user of the same. Thus the right created by Section 28 (1) of the Act in favor of a registered proprietor of a trade mark is not an absolute right and is subservient to other provisions of the Act namely Sections 27(2), 33 etc. Neither Section 28 nor any other provision of the Act bars an action for passing off by. an anterior user of a trade mark against a registered user of the same.- In other words registration of a trade mark does not provide a defense to the proceedings for passing off as under Section 27(2) of the Act a prior user of a trade mark can maintain an action for passing off against any subsequent user of an identical trade mark including a registered user thereof. Again this right is not affected by Section 31 of the Act, under which the only presumption that follows from registration of a mark is its prima facie evidentiary value about its validity and nothing more. This presumption is not an unrepeatable one & can be displaced. Besides Section 31 is not immune to the over-riding effect of Section 27 (2). Placing reliance on Section 28 (3) of the Act the I warned counsel for the appellant contended that when two registered proprietors of identical or near similar trade marks cannot be deemed to have acquired exclusive right to the use of any of those trade marks against each other, how can an unregistered

user of the trade mark maintain an action for passing off against a registered user of the same mark and seek an injunction restraining him from using it. This argument of the learned counsel seems to stem from a misconception about the real purpose and intent of Section28(3). Actually Section 28(3) protects registered proprietor of a trade mark from an infringement action by another registered proprietor of an identical or near similar trade mark. In this regard it will also be necessary to extract Section 28(3) and Section 30(1)(d) which carries of the intent of Section28(3). These Sections read as under:-

"28(3) Where two or more persons are registered proprietors of trade marks, which are identical with or nearly resemble each other, the exclusive right to the use of any of those trade marks shall not (except so far as their respective rights are subject to any conditions or limitations entered on the register) be deemed to have been acquired by any one of those persons as against any other of those persons medley by registration of the trade, marks but each of those persons has otherwise the same rights as against other persons (not. being registered users using by way of permitted use) as he would have if he were the sole registered proprietor.

30(l)(d) Notwithstanding anything contained in this 'Act, the following acts do not constitute an infringement or the 'right to the use of a registered trademark-

.........the use of a registered trade mark, being, one of two or more trade marks registered under this Act which are identical or nearly resemble each other, in exercise of the right to the use of that trade mark given by registration under this Act."

A reading of Section 28(3) with Section 30(1)(d) shows that the proprietor of a registered trade mark cannot file an infringement action against a proprietor of an identical or a similar trade mark. While Sections 28(3) and 30(1)(d) on the one hand deal with the rights of registered proprietors of identical trade marks and bar action of

infringement against each other, Section 27(2) or the other hand deals with the passing off action. The rights of action under Section 27(2) are not affected by Section 28(3) and Section 30(1)(d) . Therefore, registration of a trade mark under the Act would be irrelevant in an action for passing off. Registration of a trade mark in fact docs not confer any new right on the proprietor thereof than what already existed at common law without registration of the mark. The right of goodwill & reputation in a trade mark was recognised at common law even before it was subject of statutory law. Prior to codification of trade mark law there was no provision in India for registration of a trade mark. The right in a trade mark was acquired only by use thereof. This right has not been affected by the Act and is preserved and recognised by Sections 27(2) and 33.

(30) The law of 'passing off as it has developed, permits an .action against a registered proprietor of a trade mark for its mendacious use for inducing and misleading the consumers into thinking that his goods are the goods of or are connected with the goods of a prior user of the trade mark. It seems to us that in so far as this Court is 'concerned, this position cannot be disputed in view of the judgment of the Division Bench in Century Traders vs. Roshan Lal Duggar & Co. 1978, Del 250 where, while construing Sections 27(2) and 106 of the Act, it was held as follows:-

"FROM a reading of the above Sections it is clear that registration of mark in the trade mark registry would be irrelevant in an action for passing off.

Thus, the law is pretty well settled it in order to succeed at this stage the appellant had to establish user of the aforesaid mark prior in point of lime than the impugned user by the respondents. The registration of the said mark or similar mark prior in point of lime to user by the appellant is irrelevant in an action for passing off and the mere' presence of the mark in the register maintained by the trade mark registry did not prove its user by the persons in whose names the mark was

registered and was irrelevant for the purposes of deciding the application for interim injunction unless evidence had been led or was available of user of the registered trade marks. In our opinion, these clear rules of law were not kept in view by the learned single Judge and led him to, commit an error."

20. Under Section 27(2) an action for passing off against

registered user of trade mark is maintainable at the instance of a prior

user of the same, similar or identical mark. Since such a remedy is

available against the registered user of a trade mark, an interim injunction

restraining him to use the mark can also be granted to make the remedy

effective.

Ex-employee

21. It is a settled law that the former servant, who has left his

employer, cannot set up a similar business and advertise his previous

connection in the business for any contract to the contrary. He is not

supposed to make any representation amounting to suggestion that he is

still with the former firm or he is their successor. In the present case, the

defendant has denied the illegal activities contrary to the above.

In Arthur Fairest v. Arthur Fairest: (1949) 66 RPC 275,

defendant, a former managing director of the plaintiff company set up a

similar business and used one of the vouchers issued by the plaintiff

company in which his name was printed as managing director. Injunction

was granted restraining the defendant from using the vouchers as it

amounted to a representation that the business carried on by the defendant

was connected with the plaintiff company.

In Glenny v. Smith: (1865) 2 Drew & Sm 476, defendant was

an employee of the plaintiffs, Thresher, Glenny & Co. of 152, Strand.

After leaving their service he opened a shop in Oxford Street and placed

on the shop windows the words "from Thresher & Gleeny", the word

„from‟ being in very small letter. Injunction was granted to restrain the

defendant from using the name of the plaintiffs.

Similar trading style and passing off and likelihood of comparision

20. In the case of Laxmikant V. Patel Vs. Chetanbhat Shah and

Another; 2001 (2) CTMR 588 (SC), the Apex Court held as under :

"8. It is common in the trade and business for a trader or a businessman to adopt a name and/or mark under which he would carry on his trade or business. According to Kerly (Law of Trade Marks and Trade Names, 12th Edition, para 16.49), the name under which a business trades will almost always be a trade mark (or if the business provides services, a service mark, or both). Independently of questions of trade or service mark, however, the name of a business (a trading business or any other) will normally have attached to it a goodwill that the Courts will protect. An action for passing off will then lie wherever the defendant-company‟s name, or its intended name, is calculated to deceive, and so to divert business from the plaintiff, or to occasion a confusion between the two businesses. If this is not made out there is no case. The ground is not to be limited to the date of the proceedings; the Court will have regard to the way in which the business may be carried on in the future, and to its not being carried on precisely as carried on at the date of the proceedings. Where there is probability of confusion in business, an injunction will be granted even though the defendants adopted the name innocently.

10. A person may sell his goods or deliver his services such as in case of a profession under a trading name or style. With the lapse of time such business or services associated with a person

acquire a reputation or goodwill which becomes a property which is protected by Courts. A competitor initiating sale of goods or services in the same name or by imitating that name results in injury to the business of one who has the property in that name. The law does not permit any one to carry on his business in such a way as would persuade the customers or clients in believing that the goods or services belonging to someone else are his or are associated therewith. It does not matter whether the latter person does so fraudulently or otherwise. The reasons are two. Firstly, honesty and fair play are, and ought to be, the basic policies in the world of business. Secondly, when a person adopts or intends to adopt a name in connection with his business or services which already belongs to someone else it results in confusion and has propensity of diverting the customers and clients of some one else to himself and thereby resulting in injury."

In B.K. Engineering Company, Delhi, v. U.B.H.I.

Enterprises (Regd.), Ludhiana and another: AIR 1985 Delhi 210, it

was observed as under:

"16. The central question in each case is whether the name or description given by the defendant to his goods is such as to create a likelihood that a substantial section of the purchasing public will be misled into believing that his goods are the goods of the plaintiff. Parkar Knoll Ltd. v. Knoll International Ltd., (1962) RPC 265 at pp. 279, 285, 2890290). The defendants say that they are entitled to use "B.K.-81"as B.K. is an abbreviation of their deceased mother's name. Balwant Kaur. I cannot accept this argument. That the defendants use their mother's name with no intention to deceive anybody does not mean that such likelihood has not been created.

22. In Parker - Knoll Ltd. v. Knoll International Ltd.: (1962) RPC 265, both parties were manufacturers of furniture, the plaintiff being a company well-known in the United Kingdom and the defendant an American Company which had only recently begun to trade in England.

Notwithstanding that the defendant company did no more than use its own name on its furniture, the House of Lords, by majority, granted an injunction to restrain it from continuing to do so without distinguishing its goods from those of the plaintiff. The plaintiff had established that its name had come to denote goods made by it alone and not goods made by someone else possessing or adopting that name, and the use by the defendant of a similar name did, in the opinion of the majority, amount to the false representation that its goods were the plaintiff‟s goods.

31. The plaintiff, in my opinion, has prima facie shown that it is likely to sustain injury by defendant‟s misuse of its "goodwill". The crux of the case is that "B.K." is a word of device which is distinctive of plaintiff‟s goods. It is a distinctive indicium of the plaintiffs' bells. The defendants have misappropriated this indicium which is distinctive of the goods manufactured by the plaintiffs. It is not essential that the plain- tiff be identified by name, provided the mark is recognised as indicating the origin of the goods or services and the plaintiff is in fact that source. Powell v. Birmingham Vinegar Brewery Co. Ltd. (1896) 2 Ch. 54. A message is conveyed by a memorable word or name to the purchasing public that the goods are of the plaintiff. So the potential purchaser is misled and deceived if there is misappropriation of name, symbol or slogan by a competitor."

In Simatul Chemical Industries Pvt. Ltd. v. Cibatul Ltd: AIR

1978 Guj. 216, the plaintiff Cibatul Ltd. claimed injunctive relief against

the defendant Simatul Chemical Industries on the ground that the name

under which new company Simatul was doing business was deceptively

similar to the name of the plaintiff and the members of the public were

likely to believe that they were dealing with the plaintiff or with the

company having some connection or association with the plaintiff. The

Gujrat High Court while granting injunction took note of the fact that the

defendant had commenced production subsequently under a name similar

to that of the plaintiff which was likely to cause deception.

In Exxon Corpn. and other v. Exxon Insurance Consultants

International Ltd.: (1981)2 All Er 495 (9), the plaintiff Exxon

Corporation was dealing in petroleum and similar products. The defendant

company, though had no connection with the plaintiff, adopted the word

"EXXON" as part of its corporate name. The plaintiff brought an action

for injunction for restraining the defendant from passing off its goods as

that of the plaintiff's goods by use of the word "EXXON". It was held that

the plaintiff was entitled to an injunction restraining the defendant from

using the word "EXXON" as part of its corporate name.

In Montari Overseas Ltd. v. Montari Industries Ltd.: 1996

PTC (16), it was observed:

"22. In considering the question whether the activities of the appellant are likely to cause confusion or pose a real and tangible risk of injuring the respondents reputation or goodwill, regard must be had to the fact that appellant is using a name similar to that of the respondent and it will amount to making a representation that the appellant is associated with the defendant. The appellant cannot be permitted to appropriate the reputation and goodwill of the respondent to promote its business interests.

21. In view of the above, all the grounds raised by the defendant

for vacation of interim orders are without any logic and against the law,

hence, the application under Order 39 Rule 4 CPC is dismissed as the

same is being without any merit with cost of Rs.5000/-. On the other

hand, the plaintiff‟s application filed under Order 39 Rules 1 and 2 CPC

being IA no.6820/2010 is allowed. The ex parte ad interim injunction

order passed on 19.05.2010 is confirmed till the disposal of the suit. The

defendant, its partners, employees, agents and servants etc. are restrained

from using in the course of its business the mark "MK" as well as their

firm name "M/s. M. K. Bitumen Products" wherein the mark "MK"

forms part thereof or any other mark or trade name, where the mark

"MK" is part of it or which is deceptively similar to the plaintiff‟s mark,