PANKAJ MITHAL, J. - (1.) THE appeal under Order 43 Rule (1) (r ) CPC is directed against the order of the court below dated 16.11.2002 allowing the plaintiffs application paper no. 5 Ga-2 for interim injunction in Original Suit No. 3 of 2001 M/.S Shivhare Pharmacy and others Vs. Ganga Prasad Rawat.
(2.) THE plaintiffs instituted the above suit for permanent injunction restraining the defendant, his agents and his representatives from using trade names "Himshankar Lal Tail" and "Shivshankar Vijay Tail", as both the above trade names were similar and deceptive to the registered trade marks "Himshankar Vijay Tail" and "Shivshankar Vijay Tail" of the plaintiffs and further to restrain the defendants, his agents and representatives from interfering in the plaintiffs use of the aforesaid trade marks and in carrying of business of the above products. The aforesaid suit was filed on the allegation that plaintiff no. 1 M/S Shivhare Pharmacy is a sole proprietorship firm and that plaintiff no. 2 is its sole proprietor. The plaintiffs are in business of manufacturing and selling of ayurvedic products under the trade marks "Himshankar Vijay Tail" (trade mark registration no. 425844 of 1984) and "Shivshankar Vijay Tail" (trade mark registration no. 425841 of 1984). Both the aforesaid registrations were granted under the Trade and Merchandise Mark Act, 1958. The defendant has started dealing with ayurvedic products having similar trade names "Himshankar Lal Tail" and Shivshankar Vijay Tail". Both of which are similar and identical to the trade marks of the plaintiffs and as such are deceptive. The use of the said trade names by the defendant is violative of the Trade Marks Act, 1999 (hereinafter for short 'Act') The suit is being contested by the defendant denying the plaint allegations.
(3.) IN the suit the plaintiffs also applied for grant of interim injunction. In reply to the said application objections no. 17 Ga-2 were filed by the defendant.;