P L J AND CO Vs. PROMILLA INDUSTRIES

JUDGEMENT

(1.) This order will dispose of these two applications. LA- No. 514"790 has been filed by the plaintiff, under Order 39 Rules 1 and 2. An ex parts restraint order was passed on this application on 16.7.1990. The defendant has filed LA. 3465/91 under Order 39, Rule 4, Civil Procedure Code. The main plank for seeking to have the ex-parte injunction order vacated is that the defendant has since been granted registration in respect of word "SARISHTA" per se, under the Trade and Merchandise Marks Act (for short the Act).

(2.) The documents at annexures "A" and "B" filed by the plaintiff are the cartons in which the hair dyes in questions is sold by the plaintiff and the defendant respectively. There is another bigger carton in which the smaller cartons are put and sold. They have been filed at pages 28 and 29 in the list of documents of the defendants. The documents at these two pages have been denied on behalf of the plaintiff. But there is no serious dispute at the Bar that the document at page 28 is the bigger carton in which the smaller cartons containing the hair dye of the plaintiff is sold ; and further that the document at page 29 is the bigger carton in which the hair dye of the defendants is sold. The defendant has also filed smaller cartons at pages 32, 33 and 34 of its documents to show that they are similar to the carton of the plaintiff at annexure "A" as noticed above to show that others are also using similar carton for selling hair dye.

(3.) The dispute relates to the similarity of the cartons as per annexures "A" and "B" and it is the case of the plaintiff that the defendant is passing off the goods of the plaintiff as that of the defendant in deceptively similar cartons. There does not appear to be any dispute with regards to the bigger cartons which are at pages 28 and 29 of the documents filed by the defendant.