THREE N PRODUCTS PVT LTD Vs. AMRUTHA TRADING CORPORATION
HIGH COURT OF KERALA
THREE-N-PRODUCTS PVT. LTD.
AMRUTHA TRADING CORPORATION
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K.S. Radhakrishnan, J. -
(1.) Plaintiff is the appellant. This appeal has been preferred against the order in I.A. No.
121 of 2003 in O.S. No. 2 of 2003 of the Court of the District Judge, Ernakulam.
(2.) Suit was instituted by the plaintiff alleging that the defendant had infringed their
trade mark registered under the provisions of the Trade and Merchandise Marks Act,
1956 and also that the defendants passed off their goods which are deceptively
similar to those of the plaintiffs and caused damages. Application for temporary
injunction was also filed restraining the defendants and their representatives from
infringing the trade mark "AYUR" of the plaintiff and/or from using the business trade
mark "AYUSH" or any other trade name which is identical with or deceptively similar
to the plaintiff's trade mark AYUR and also for other consequential reliefs. The court
below refused injunction holding that the plaintiff has not made out a prima facie
case of infringement of the trade mark. It was also found that the plaintiff had not
made out a case that defendants are trying to pass off the goods deceptively similar
to that of the plaintiff's products. The court held if injunction is granted it will cause
irreparable injury to the defendants and the balance of convenience is also in favour
of the defendants. Consequently application for temporary injunction was dismissed.
Aggrieved by the same this appeal has been preferred.
(3.) Before we deal with the rival contentions we may deal with the facts of this case in
brief. Appellant is a private limited company carrying on business in cosmetic
products including skin cream, lotions, shampoo, hair care materials and face pack
kit for skin treatment etc. They had got its trade mark "AYUR" from 1.4.1984.
According to the appellant, on account of the extensive advertisements in various
printed and audio/visual media, the trade mark AYUR has acquired vast reputation
and goodwill which is not only restricted to the goods in respect of which trademark
is used by the appellant, but extends to whole range of goods including medicine.
Appellant while participating in an exhibition conducted at Ernakulam in connection
with the World Ayurvedic Congress found that respondents are manufacturing,
selling and offering for sale dandruff rakshak shampoo, body rakshak shampoo, hair
poshak oil etc. under the trade mark AYUSH. According to the appellant, the attempt
of the respondents is to confuse the general public by misusing the trade mark of the
appellant. Respondents are also passing off their goods and they would continue to
do so unless they are restrained by a temporary injunction. Hence the suit was
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