- (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 judgment.
(2.) 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. 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; I) Further and other reliefs.";