Sudhir Narain, J. - (1.) This is a defendant's appeal against the order passed by the court below restraining the appellant from infringing in the plaintiff's registered trade mark bearing registration Nos. 417443, 453959 and 453009 in respect of 'parag' and further restraining it from using such mark.
(2.) The plaintiff-respondent filed suit against the appellant for permanent injunction restraining It from infringing the plaintiffs trade mark and for passing off its goods under the trade mark, 'parag' as the goods of the plaintiff with the allegations that the respondent company is manufacturing and selling pan masala and mouth freshener like Sada Pan Masala. Gutkha and chewing tobacco. The trade mark 'parag' is registered under the registration No. 417443 dated 10.2.1984 and 'pan parag' is registered on 12.5.1986 bearing registration No. 453959 and 'pan masala with zarda' bearing registration No. 453009. It has further applied for registration in the name of trade mark 'pan masala mawa'. The appellant is alleged to have started selling tea from the month of December, 2000, using plaintiffs trade mark 'parag' as its prefix. The allegation is that the goods of the appellant is likely to mislead the purchasers as the goods of the respondent company by ordinary purchaser of average memory, semi-literate and village folks and thus appellant is infringing the trade mark and damaging Its reputation. It filed an application for interim injunction which the court below has allowed ex parte by the impugned order.
(3.) As the order was passed ex parte, the appellant filed objection. The parties have already submitted their affidavits before the court below. The learned counsel for the parties made statement before this Court that instead of remanding the matter, the propriety of the grant of temporary injunction may be considered by this Court on the affidavits which they have filed in this Court.;