- (1.) Both the appeals, one filed by the plaintiff and the other by the defendant, were taken up together and we propose to dispose those two appeals by this common judgement. The APO No.248 of 2008 is at the instance of a plaintiff in a suit alleging violation of registered trademark and also complaining passing off and is directed against an order dated 26th August, 2008 passed by a learned Single Judge of this Court by which His Lordship modified the earlier interim order granted ex parte in favour of the plaintiff. Being dissatisfied, the plaintiff has come up with the present appeal.
(2.) The defendant, on the other hand, is aggrieved by the modified part of injunction granted by the learned Trial Judge and has filed the other appeal being APOT No.355 of 2008 thereby praying for dismissal of the application for temporary injunction in its entirety.
(3.) The facts giving rise to filing of these appeals may be summed up thus: The plaintiff/appellant filed a suit being C.S. No.204 of 2007 before the leaned Single Judge of this Court thereby praying for the following relief: a) Declaration that the defendant its servants, agents are not entitled to use the trademark AYUR and AYU alone or by prefixing or suffixing any other word to the word AYUR or AYU or any mark deceptively similar to the plaintiffs trademark AYUR or AYU in respect of any goods; b) Perpetual injunction restraining the defendant whether by themselves or by their servants, agents and assigns or any of them or otherwise howsoever from infringing the registered trademark and trade name of the plaintiff Ayur and Ayu by using the mark Ayucare, Ayurcare and Himani Ayurdhara and Himani Ayucare or any other mark prefixing or suffixing Ayur to any word deceptively similar to the plaintiffs registered trademark Ayur and Ayu; c) Perpetual injunction restraining the defendant whether by themselves or by their servants, agents and assigns or any of them or otherwise howsoever from passing off or attempting to pass off the products of the defendant as products of the plaintiff by using the trademark Ayur or Ayu or the names of Ayucare, Ayurcare and Himani Ayurdhara and Himani Ayucare or any other mark or device deceptively and/or confusingly similar to the aforesaid registered trademark of the plaintiff; d) Perpetual injunction restraining the defendant whether by themselves or by their servants, agent and assigns or any of them or otherwise howsoever from using the registered trademark Ayur and Ayu of the plaintiff or by using the trademarks Ayucare, Ayurcare and Himani Ayurdhara and Himani Ayucare which are identical with or any other mark or device deceptively and/or confusingly similar to and/or imitation of the aforesaid registered trademark of the plaintiff; e) Perpetual injunction restraining the defendant whether by themselves or by their servants, agents and assigns or any of them or otherwise howsoever from proceeding further with their application for registration of the aforesaid names of Ayucare, Ayurcare and Himani Ayurdhara and Himani Ayucare or any other mark or device deceptively and/or confusingly similar to the aforesaid registered trademark of the plaintiff; f) Mandatory injunction directing the defendant to obliterate upon oath the word Ayur and Ayu or Ayucare, Ayurcare and Himani Ayurdhara and Himani Ayucare on labels, bills, wrappers, envelopes, cartons, blocks, dices, publicity materials, packaging materials, stationery, forms of the defendant application before the Trade Mark Registry and also all literature or any other device used for the application of the said registered trademark of the plaintiff Ayur or any mark deceptively similar to Ayur; g) Decree directing the defendant and its servants, agents and assigns to deliver upon oath for destruction of all labels, bills, wrappers, envelopes, cartons, blocks, dices, publicity materials, packaging materials, stationery and forms; h) Interlocutory injunction; i) Receiver; j) Attachment; k) Costs; l) Further and other reliefs.;