- (1.) THESE two appeals - one by Godrej soaps Ltd. and the other by Procter and Gamble Godrej Ltd. arise out of the same interim order passed by the Court of the first instance on an inter-locutory application filed by the first respondent, Hindustan Lever Ltd. for an order restraining the appellants, inter alia, from manufacturing, selling or offering for sale and/or marketing and/or advertising the bathing bar vigil' with the words' All New' and The Longer Lasting Soap' which uses and/or utilises the process and/or composition of the patent No. 170131 of the first respondent or any composition which comes within the range and/or scope and/or is covered by the said patent of the first respondent. The said injunction application was; moved on 12th July 1993 and an ad interim order in terms of the aforesaid prayer was passed. On 21st July 1993 the learned Judge passed the following order :- ". . . . . . . . I have carefully considered the submissions made by the lerned Advocates and also the provisions of Section 48 of the patent Act. The fact remains that no affidavit has been filed by the defendants. Now it is too early to decide the matter without affidavit. From the averments made in the plaintiff's application and also from the facts and circumstances of the case it appears that the plaintiff has got a prima facie case and it will not be proper to vacate the interim order at this stage. It is ordered that the defendants will be at liberty to sell soaps wherein TFM', i. e. total fatty matter percentage is mentioned but will not sell any soap infringing the composition of the plaintiffs patent bearing No. 17031. Earlier interim order is modified to this extent only. Defendants will file their affidavit in opposition by 26. 7. 1993; plaintiff will file reply by 28. 7. 1993 and the injunction matter will come up for hearing as a 'specially Fixed matter' on 29. 7. 1993. . . . . . . . . . . . . . "
(2.) IT has been submitted by Mr. Ashoke Sen, Senior Counsel for Godrej soaps Ltd. and S. B. Mukherjee, Senior Counsel for Procter and Gambel godrej Ltd. that at this stage the Court is only concerned to see whether the balance of convenience is in favour of granting any order of injunction against the manufacture and sale of the product in question. It is the contention that the patent of the first respondent has been sealed only in may 1993 and the first respondent has not marketed any product on the basis of the said patent. On the contrary, the bathing bar under the trade mark Vigil' (green) is being manufactured by the first respondent since november 1987 and a variant thereof, namely Vigil' (pink) is being manufactured from November 1991. The Words 'new' and 'longer lasting' appeared on the wrapper of the said bathing bars as far back as in February 1990. The words 'all new' and 'the longer lasting soap' were a mere change in the art form and have been appearing on the wrappers of the products manufactured by the first respondent since January 1993. Accordingly the learned Counsel submitted that the interim order should be vacated. The learned Counsel have relied on several decisions in support of their contentions.
(3.) MR. Gautam Chakraborty, (learned Counsel appearing for the first respondent has. however, submitted that no affidavit-in-opposition has been filed in the Court below. The appellants have not disclosed if they have got any patent and what are the compositions of the product manufactured by them. Since the first; respondent has got the right under the patent that right cannot be allowed to be interfered with by the appellants in any manner whatsoever. If the TFM', i. e. total fatty matter percentage is more than what has been specified in the patent obtained by the first respondent, the first respondent should not have any objection to the manufacture and sale of the product of the appellant. It is submitted that it is immaterial whether the first respondent has produced or manufactured any product under the patent or not.;