Kalyan Jyoti Sengupta, J. - (1.) By this motion the plaintiff in Suit No. 377 of 2001 (being first Suit) has sought for restrain order against the defendant, Centaur, from using the mark 'Rofitab' in its medicinal product. In this passing off action at the ad interim stage the plaintiff in first suit was not successful to obtain any interim order against the defendant. Admittedly, the marks of the plaintiffs and the defendants in both the suits are un - registered. However the defendant in first suit has applied for registration to the appropriate authority, which is yet to be disposed of. The defendant has also filed a cross - suit, being No. 557 of 2001, subsequent to filing of the plaintiff, for the similar action against the plaintiff in first suit. Both the applications in both the suits are taken up for hearing, so common arguments have been advanced.
(2.) It is settled position of the law as also admitted by both the Learned Counsels of the parties that in Passing Off action the registration of the marks hardly matter. This action can be founded on the basis of prior use of the mark.
(3.) It is the case of the plaintiff in first suit that it has started using its mark from December, 2000 whereas the defendant has started using of its mark, which is phonetically similar to the mark of the plaintiff and that what is objected to by the plaintiff in first suit.;