KUNDAN SOAP COMPANY Vs. AJANTA SOAP COMPANY

JUDGEMENT

(1.) The plaintiff is a partnership firm carrying on the business of manufacturing and marketing of washing soap and for that purpose claims to be using the trade mark ASHIRVAD. The plaintiff applied for registration of the trade mark ASHIRVAD with the Registrar of Trade Marks. The advertisement in this regard was issued in Trade Marks Journal No. 856 and no objection was filed by any party. The plaintiff markets the washifng soap using the trade mark ASHIRVAD in an artistic wrapper, the design for which is registered under the Copy Right Act 1957. It is alleged by the plaintiff that the defendants who are also engaged in manufacturing and selling of washing soap adopted identical and/or deceptively similar trade mark ASHIRVAD and also copied the artistic design of wrapper in clear violation and infringement of the plaintiff's trade mark and copy right. The plaintiff, therefore, filed a suit for perpetual injunction restraining the defendants from manufacturing, selling, offerring for sale or otherwise dealing in washing soap under the trade mark ASHIRVAD or any other trade mark which may be identical or deceptively similar to the plaintiff's trade mark ASHIRVAD and for further injunction restraining the defendants from infringing the plaintiff's copy right by printing, publishing or using or reproducing the artistic wrappers entitled ASHIRVAD and further for an order of injunction restraining the defendants from passing of their washing soap under the trade mark or wrapper ASHIRVAD and for rendition of accounts of profits earned by the defendants on the sale of washing soap under the trade mark ASHIRVAD or infringing wrappers on the basis of sale made during the last three years from the filing of the suit till the date of injunction. Alongwith the plaint, the plaintiff filed the present interim application under Order 39 Rules 1 and 2 praying that during the pendency of the suit the defendants be restrained from using trade mark and artistic wrapper entitled ASHIRVAD.

(2.) By order dated 10th March 1986 this Court issued notice to the defendants and pending notice of this application granted an ex-parte injunction restraining the defendants, their agents, servants, dealers, representatives and all other persons from manufacturing, selling, offerring for sale or otherwise dealing in washing soap etc. under the trade mark and wrapper entitled ASHIRVAD or any other trade mark or wrapper which may be identical with and or deceptively similar to the plaintiff's trade mark ASHIRVAD.

(3.) The defendants filed a counter-affidavit to the interim application and prayed that the interim order granted be vacated.