AYUSHAKTI AYURVED PVT LTD Vs. HINDUSTAN LEVER LIMITED

JUDGEMENT

(1.) THIS is a plaintiffs motion for restraining the defendants from selling their products hair oil, shampoo and soap (personal care products in Class 3) under the trade mark "ayush" so as to pass off or enable others to pass off the same as products of the plaintiffs which according to the plaintiffs are a being sold under an almost identical trademark "ayushakti". The notice of motion is in a suit for the same relief based on the tort of passing mark and not on any statutory rights.

(2.) ACCORDING to the plaintiffs, after ascertaining in the market and conducting a manual search in the register maintained under the Trade marks Act, they adopted the trademark "ayushakti" as an umbrella brand in respect of their goods. The plaintiffs claim that several products such as shampoo, hair oil, soap, cough mixture and pain balms were sold under the mark "ayushakti". In 1996 the plaintiffs applied for registration of the trademark AYUSHAKTI. The application is pending. In the year 1998 the name of the 1st plaintiff company was changed from Dr. Pankaj Naram herbal Remedies to Ayushakti Ayurved Private Limited.

(3.) IN July, 2002 the plaintiffs noticed that product bearing a deceptively similar trademark has been launched in the market. Plaintiffs claim that they received enquiries from customers and patients about whether the ayush and AYUSHAKTI were both from the plaintiffs. They, therefore, called upon the defendants to cease and desist from using the mark in october, 2002. The defendants refused to comply with the notice mainly on the ground that they were the assignees of the trade mark AYUSH in Class 3 and a pending registration application in Class 5 and that the mark sufficiently distinguish their product from those of the plaintiffs. The plaintiffs after replying to the defendants reply and after the defendants finally refused to refrain from using the mark AYUSH, have filed this suit on 28th January. 2003.