Sanjay Kishan Kaul, J. (Oral):— The plaintiff has filed a suit for infringement of trademark, passing off, infringement of copyright, rendition of accounts and delivery up in respect of the trademark and packaging of its products ROCHAK and ‘AM PACHAN’. Both are churan and tablets for digestive purposes.

2. The plaintiff is a partnership firm which claims to be manufacturing churan and digestive tablets since the year 1982. The mark ROCHAK is stated to have been adopted in the year 1982 itself and artistic labels in the form of pouch bearing the trademark ROCHAK were used for sale of the products. The pouch is stated to have distinctive features such as colour combination of blue, white and red. The face of a person artistically designed in a manner that the face is mounted on the handle of the spoon and the spoon is crisscrossed by a knife. A two toned red plate is in the background of this crisscrossed spoon and knife with the word ‘ROCHAK’ written in red letters in the blue strip and in blue in the white portion on the pouch. The VISAKHA, the name of the plaintiff firm, is written in a hexagon. The AM PACHAN is stated to have been adopted in the year 1985 with the colour combination of light green, red, white and yellow with AM PACHAN written in Hindi and English in an artistic manner. The first letter of the trademark starts from the middle of an artistically designed mango. The children are shown on the package in a special posture with AM PACHAN written in a box with yellow colour in the background and the name of the plaintiff VISAKHA written in a hexagon.

3. The plaintiff is stated to be a registered proprietor of the copyrights registered under different nos. in respect of both ROCHAK and AM PACHAN and year-wise details of sales figures have been set out in para 7 of the plaint. These sales figures have been given from the year 1985–86 and for the nearest year of 2004–2005, the sales figure were of more than Rs. 33 lakhs. Almost half of the sales are in respect of the trademark ROCHAK, while about 48% pertained to the trademark AM PACHAN and the remaining 2% for the other products of the plaintiff. The plaintiff is stated to have widely advertised its products.

4. The plaintiff claims to have established an unrivaled reputation and goodwill for the trademark ROCHAK and AM PACHAN which are exclusively associated with the goods of the plaintiff in respect of Ayurvedic medicinal products such as churans and tablets for digestive purposes. The packaging is stated to be distinctive and, thus, the public and third persons associate the trademark and the packaging with the goods of the plaintiff.

5. The plaintiff has given illustrations of various legal proceedings initiated for protection of the trademark and the packaging by filing of civil suits where the plaintiff'succeeded albeit largely on the defendants) compromising and recognizing the rights of the plaintiff.

6. The defendants are stated to have recently started selling Ayurvedic medicinal products of similar nature under the trademark ROCHAK and AM PACHAN with similar packaging. The plaintiff has annexed its pouches as Annexures-A & B while those of the defendants are Annexures-Y & Z to show similarity of the packaging. It is stated that such packaging is bound to cause confusion and deception amongst the purchasers who would be misled into thinking that the products of the defendants actually emanate from the plaintiff. The triple identity test of identical goods, identical trademarks and identical trade channels are stated to be fully satisfied in the present case and the action of the defendants is stated to be deliberate and deceptive with the sole object of making illegal profits by passing off its inferior goods as those of the plaintiff.

7. The plaintiff has, thus, filed the suit and along with the suit filed the application for interlocutory relief under the provisions of Order XXXIX Rules 1 and 2 of the Code of Civil Procedure, 1908 (for short, ‘the Code’). Ad interim orders were granted in favour of the plaintiff on 26.09.2005 in IA No. 7656/2005. The defendants have entered appearance and filed the written statement. The defendants have also sought vacation of the injunction by filing IA No. 10095/2005 under Order XXXIX Rule 4 of the Code.

8. The defendants have resisted the suit and the application. The defendants have claimed that the trademark and the packa???ing are not identical or deceptively similar. It is stated that no trademark rights o??? significance can be attached to the word ‘AM PACHAN’ as it is not a trademark and is descriptive as well as generic and laudatory in nature. The said word is stated to be commonly used in the trademark by numerous persons/firms in relation to churan tablets. The defendants claim that the plaintiff is not proprietor or owner under any statutory law or common law of the trade marks or labels of ROCHAK and AM PACHAN. The defendants have also disputed that the plaintiff has been using the trademarks continuously since the year 1982 and, thus, have claimed that the plaintiff has no goodwill in the packaging of the mark. The plaintiffs are stated to be guilty of suppression veri suggestio falsi. This allegation is based on the fact that the plaintiff is alleged to have originally adopted the trademark/label ‘ROCHAKA’ and made an application for registration thereof. The mark was advertised in the trademark journal, but was opposed by M/s. F Hoffmann-La Roche AG, Ch 4002 Basel, Switzerland The plaintiff thereafter changed its trademark to ROCHAK and accordingly the opposition was withdrawn and the mark was amended to read as ROCHAK vide order dated 12.10.2001 This mark is stated not to have been advertised as per the provisions of law or the Trademarks Act, 1999 and directly the registration certificate was issued.

9. A plea has also been raised that the impugned trademark AM PACHAN originally belonged to a third-party from Nepal and the same is registered in that country.

10. The plaintiff filed a replication and one factor to be taken note of is that the counsel for the defendants originally represented the plaintiff itself and had issued a notice in the year 1986, copy of which has been placed on record, stating that the plaintiff was engaged in the relevant business and have been using the trademark ROCHAK since the year 1982.

11. Learned counsel for the plaintiff, in fact, sought to contend that the counsel for the defendants had no right to represent the defendants as the counsel had represented the plaintiff in respect of the disputes relating to the same trademarks. However, learned counsel for the defendants stated that he had examined the issue and was entitled to represent the defendants. Be that as it may, the same is not a matter to be considered by this Court. However, in view of the notice, learned counsel for the defendants conceded that he would not advance the plea that prior to, 1986, the plaintiff did not have any sale under the trademark ROCHAK The plea was sought to be modified by contending that apparently the plaintiff had given up the trademark and post-1986 was marketing under the name of ROCHAKA, which was ultimately not registered and registration of the mark ROCHAK subsequently in the year 2001 did not establish the right of the plaintiff from the year 1986 onwards apart from the fact that such registration was not valid.

12. Learned counsel for the plaintiff referred to various documents placed on record including copy of the drug licence issued in the year 1982 for both ROCHAK tablets and ROCHAK churan. A memorandum dated 03.12.2001 issued by the Directorate of Indian System of Medicine & Homeopathy, Government of NCT of Delhi has also been placed on record certifying that the firm holds licence to manufacture Ayurvedic medicine including ROCHAK Tablet and AM PACHAN Tablet. The licence is stated to be in force as per the said letter. Advertisements in respect of both the marks for various periods starting from 1993 have been placed on record by filing copies of the newspapers where such advertisements were issued. Some of the old bills showing sales of ROCHAK tablets have also been placed on record including bills for the year 1985.

13. The plaintiff has filed certificates of registration issued by the Copyright Office of the artistic work of both ROCHAK and AM PACHAN. It may be stated that there are small pouches of both ROCHAK and AM PACHAN in respect of the plaintiff and the defendants, which in turn are put in larger pouches. In order to appreciate the distinctive features and the visual impact, it may be appropriate to compare the two pouches. The smaller pouches of the parties in respect of ROCHAK being Annexure-A and Annexure-Y respectively as also in respect of AM PACHAN being Annexure-B and Annexure-Z respectively are as under:

ANNEXURE-A AND ANNEXURE — Y

ANNEXURE-Band ANNEXURE-Z

14. The larger pouches of the two parties are as under:

PLAINTIFFS LARGER POUCH

DEFENDANTS LARGE POUCH

PLAINTIFFS LARGER POUCH

DEFENDANT'S LARGER POUCH

15. A comparison of the two packagings, in my considered view, leaves little manner of doubt that the attempt of the defendants is clearly to replicate the packaging of the plaintiff. Such replication is almost feature by feature. It is the total impact which has to be seen and not merely a question of a particular colour combination being used. Thus, there is no doubt in my mind by reference to the colour schemes, the placement of the mark, the features of the spoon and the knife and the placement of the head, the nature of the face of the person, the hexagonal nature where the brand-name is indicated that the two are practically identical. In fact, a visual perusal of the smaller and the larger packaging itself shows that a common man, who consumes the product, is bound to fall into a deception and assuming that the products of the defendants emanate from the plaintiff. It is, thus, clearly an attempt on the part of the defendants to pass off their goods as those of the plaintiff.

16. Learned counsel for both the parties referred to certain judgments to substantiate their point of view.

17. Learned counsel for the plaintiff referred to the judgment of learned Single Judge of Madhya Pradesh High Court in Rati Traders v. K.P Pouches Pvt. Ltd., 2004 (29) PTC 254 (MP). This judgment was cited to advance the proposition that it is the test of prior user in such a case of passing off which would be the most material. It was observed in para 11 of the judgment by reference to the judgment of Delhi High Court as under:

“11. The main ground for allowing the application of the respondent by the Court below had been that in its opinion the respondent had been prior user of the trademark “Safal”. Certainly, an injunction could be granted in favour of prior user Jai Prakash Gupta… v. Vishal Aluminium Mfg. Co…, 1996 PTC (16) 575 had been clear authority for the purpose. The learned Judge therein had held:

“There is no dispute and can be none with the legal proposition that as between the two parties, who proposed to use a particular trade mark the person who designs the mark will get preference over the other and in case of one party proposing to use the mark against the actual user, the later will take precedence. In between the two parties claiming actual user as against the prior user, the party, who is prior in point of time will have the advantage over the other. Even in regard to the prior registration of the trade mark, as against the prior user, the action of the later will prevail. In an action for passing off, in order to succeed in getting an interim injunction, the plaintiff has to establish user of the mark prior in point of time than the impugned user by the defendant. The registration of the mark or similar mark prior in point of time to user by the plaintiff is irrelevant in an action for passing off and the mere presence of the mark in the register maintained by the trade mark registry does not prove its user by the person in whose names the mark is registered and it is irrelevant for the purposes of deciding the application for interim injunction unless evidence has been led or is available of user of their registered trade mark.”

18. Learned counsel for the plaintiff further referred to the judgment of learned Single Judge of this Court in Jai Prakash Gupta… v. Vishal Aluminium Mfg. Co…, 1996 PTC (16) 575, which is the judgment relied upon by the Madhya Pradesh High Court aforesaid, it was observed in para 16 as under:

“16. On another question, which has been raised on behalf of the defendant that the application as well as suit of the plaintiff is not maintainable, since plaintiff is a pirator of the trade mark VISHAL of M/s Monica Manufacturing Co, the same is of no consequence since the instant litigation is between the plaintiff and the defendant, in which M/s Monica Manufacturing Co. is not a party. Moreover, it may be observed that in suit between the plaintiff and M/s Monica Manufacturing Co. also there is an order passed on 13th September, 1993, copy of which has been placed on record on behalf of the defendant that M/s Monica Manufacturing Co., for the duration of the said suit stated that plaintiff in the instant suit will be at liberty to use the trade mark VISHAL till the controversy amongst plaintiff and M/s T lonica Manufacturing Co. is finally decided. The above objection raised on behalf of the defendant otherwise has to be negatived that for the purpose of the instant application, on the ratio of the decision of this Court in Coolways India v. Princo Air conditioning and Refrigeration, 1993 (1) A.L.R 401 : PTC (Suppl) (1) 470 (Del). In that case it was held that it will be useless and without merit to contend that the petitioner himself is infringing the trade mark of another person. It is a matter between the petitioner and the other party on whose favour that trade mark is registered. The respondent cannot be allowed to make use of the reputation and goodwill of the petitioner by adopting his trade mark or a deceptively similar trade mark for his product. On the same principle, in the instant case also, the defendant cannot take advantage of the pendency of litigation between the plaintiff and M/s Monica Manufacturing Co.”

19. A reading of the aforesaid judgment shows that a defendant cannot be allowed to make use of the reputation and goodwill of the plaintiff by adopting its trademark or a deceptively similar trademark for its product and the defendant cannot take advantage of the pendency of the litigation between the plaintiff and a third-party. It is this latter aspect which has been emphasised by learned counsel for the plaintiff in view of the plea raised by learned counsel for the defendants that rectification proceedings are pending.

20. Learned counsel for the plaintiff also referred to the judgment of learned Single Judge of this Court in Avis International Ltd. v. Avi Footwear Industries, AIR 1991 DELHI 22 : PTC (Suppl) (1) 844 (Del) wherein it was observed in paras 9 and 17 as under:

“9. The further case of the defendants that in view of the fact that the rectification proceedings have been filed, it would not be appropriate to grant the injunction which has been sought by the plaintiffs against the defendants, as prima facie the register is liable to be rectified. For this proposition, the defendants have referred to two judgments of this Court, both delivered by Dalip K. Kapur, J., which have been reported in 1981 Patent and Trade Mark Cases 14, and 1981 Patent and Trade Mark Cases 260.

17. In my view, the statutory monopoly which has been conferred upon the plaintiffs in connect with use of the mark AVIS for footwear has to have primary precedence over any other consideration in relation to grant or non-grant of an injunction, especially when the matter is at interlocutory stage, and is yet to be tried, and it cannot be foreseen as to whether the defendants who seek rectification of the plaintiffs mark, on account of non-statutory registration establishes prima facie case in favour of the plaintiffs.”

21. The last judgment referred to by learned counsel for the plaintiff was of the Division Bench of this Court in Century Traders… v. Roshan Lal Duggar & Co…, AIR 1978 DELHI 250 : PTC (Suppl) (1) 720 (Del) (DB) where the principles in respect of passing off were set out in para 14 as under:

“14. Thus, the law is pretty well settled that in order to succeed at this stage the applicant had to establish user of the aforesaid mark prior in point of time than the impugned user by the respondents. The registration of the said mark or similar mark prior in point of time to user by the appellant is irrelevant in an action for passing off and the mere presence of the mark in the register maintained by the trade mark registry did not prove its user by the persons in whose names the mark was registered and was irrelevant for the purposes of deciding the application for interim injunction unless evidence had been led or was available of user of the registered trade marks. In our opinion, these clear rules of law were not kept in view by the learned single Judge and led him, to commit an error.”

22. A reading of the aforesaid judgment shows that in action of passing off, prior use of the mark in point of time is the relevant test.

23. The plaintiff in the aforesaid behalf has placed various documents on record to show sales under both the marks. There have been advertisements published also under both the marks. I am unable to accept the plea of learned counsel for the defendants that even if the plaintiff had sales under ROCHAK prior to 1986, the same were abandoned post-1986. There is no material on record at this stage to substantiate this plea. The mere fact that the plaintiff wanted registration of the mark ROCHAKA, which was opposed and subsequently ROCHAK was accepted for registration, would not be very material in this behalf. Interestingly, the defendants have placed no material on record showing that they have sales or they have prior adoption of the mark. The only material placed is of registration of the mark stated to be carried out in Nepal for AM PACHAN. It has to be kept in mind that the stage of the present suit is pre-trial and the adjudication has to be based on prima facie view of the matter. As to what is the impact of the registration of mark, if it has actually been done in Nepal, would have to be considered at the stage of trial. That does not in any manner advance the case of the defendants of any prior user. The only plea in this behalf is that even prior to the plaintiff, some persons were using this mark in Nepal. In fact, the only other document filed by the defendants is the Order of the Registrar of Trademarks dated 10.12.2001 dealing with the issue of registration of ROCHAKA and ROCHAK The defendants do not even dispute the fact that the plaintiff did carry out sales under the trademark ROCHAK from the year 1982 onwards till at least 1986. This admission is possibly on account of the fact that counsel fpr the defendants himself was representing the plaintiff up to that date and had issued the legal notice in this behalf. Thus, a unique plea was sought to be advanced that post-1938, ROCHAK was given up in favour of ROCHAKA because the plaintiff applied for registration of the mark ROCHAKA.

24. Learned counsel for the defendants referred to the judgment of learned Single Judge of this Court in Glaxo Operations YK Ltd., Middlesex (England) v. Samrat Pharmaceuticals, Kanpur, AIR 1984 Delhi 265 in respect of the registration of the artistic work under the Copyright Act. It was observed in paras 21 and 22 as under:

“21. The aforesaid defence raises a question as to what rights are conferred on account of registration of copy rights and what exactly the nature of copyright is. The relevant provisions regarding the registration of copyrights are Sections 44 and 45 of the Copyright Act. Section 44 says that there shall be kept at the copyright Office register in the prescribed form to be called register of copyright. Section 45 reads as under:

“45(1) The author or publisher of, or the owner of or other person interested in the copyright in any work may make an application in the prescribed form accompanied by the prescribed fee to the Registrar of the Copyrights for entering particulars of the work in the Register of Copyrights.

(2) On receipt of an application in respect of any work under Sub-section (1), the Registrar of Copyrights may, after holding such inquiry as he may deem fit, enter the particulars of the work in the Register of Copyrights.”

25. It is apparent from a plain reading of Secting 45 that it is discretinary with any author of any work to apply for the registration of copyrights and that registration as such does not confer any rights. There is no other provision at all in the Copyright Act which confers rights on account of registration of copy right. Therefore, copyrights exist whether the registration is done or not an the registration is merely apiece of evidence as to when a certain author started claiming copyright in some artistic or some other work.

22. When the registration does not confer any rights it is to be seen as to how copyrights in favour of a person come into existence. Section 13 of the Copyright Act gives a clue as to how a copyright is acquired. It say that copyright shall subsist throughout India, inter alia, in case of original literary, dramatic, musical and artistic works. Therefore, emphasis is on the originality. It is, therefore, that artistic work which is original in which copyrights can vest. According to Section 17 of the author of the work shall be the owner of the copyright therein. The work ‘author’ is defined as under in Section 2(d) of the Copyright Act:

“2. Interpretation — In this Act, unless the context otherwise requires—

(a) “author” means

(i) in relation to a literary or dramatic work, the authority of the work;

(ii) in relation to a musical work, the composer;

(iii) in relation to an artistic work other than a photograph, the artist;

(iv) in relation to a photograph, the person taking the photograph;

(v) in relation to a cinematograph film, the owner of the original plate from which the record is made, at the time of the making of the plate.”

(vi) in relation to a record, the owner of the original plate from which the record is made, at the time of the making of the plate.”

26. That definition of the work “author” and Section 17 lay emphasis on the fact that copyrights vest in that person who is original creator of the work. In some cases it may not be possible to be definite as to who was the original creator. In such cases, therefore, obviously the person who got registration earlier or who is established to be earlier user can be presumed to be the author or original creator of the artistic work.”

27. The aforesaid observations, in my considered view, are not of much assistance to the defendants as they only advance the proposition that even in the absence of registration, the copyright can be claimed in some artistic work, the emphasis would be on originality. Not only this, in the same judgment, it was observed in paras 15 and 16 as under:

“15. At pages 41 to 43. of the documents file is the photostat copy of the registration of copyright of the product of the plaintiff known as Glazose-D. At pages 44 to 46 is the photostat copy of registration of copyright of Glucon-D of the plaintiff. A copy of the carton forms apart of the aforesaid certificate. I have already compared the carton of Glucon-D of the plaintiff with the carton of Glucose-D of the defendant and found that latter deceptively similar. It is, therefore, obvious that there is infringement of the trade marks and copyrights of the plaintiff.

16. Further, it also appears that the defendant is guilty of passing off his goods as those of the plaintiff by way of using deceptively similar cartons and trade marks. Learned counsel for the defendant in this connection relied upon judgment of this Court in Khemraj Shrikrishnadass v. Garg and Co., AIR 1975 DELHI 130. It was held that action for passing off was a common law remedy, that its gist was deceit and not infringement of a right to exclusive user, and that in such an action, it was essential for the plaintiff to establish (1) distinctive features, (2) substantial user and (3) wide reputation. Counsel contended that in this case the third condition of wide reputation did not stand proved, that although the plaintiff had placed on record a statement of sales worth crores of rupees of their product from the years 1972 to 1982 yet the said statement was not supported by an affidavit and that, therefore, it cannot be said that their products were so well reputed as to command wide and exclusive sale. I do not, however, agree with the learned counsel. Prima facie all the conditions mentioned in the aforesaid authority stand established. It is true that affidavit has not been attached with the statement on sales and the statement of expenditure on advertisement but it was stated at the bar that if the Court permitted an affidavit could be filed. Learned counsel for the defendant did point out the defect of absence of affidavit but at the same time he could not dispute correctness of the said statements at the bar. Therefore, prima facie they give correct indication. The other condition obviously stands satisfied. The products of the plaintiff are put in cartons with distinctive features, as already mentioned. The user has been substantial for number of years while the user of the defendant, even a according to the case of the defendant, is later in time because according to the plaintiff their user started in 1979.”

28. The aforesaid shows that when the packagings were compared, they were found to be deceptively similar and a case of passing off was found to be made of. A similar position is in the present case coupled with the factor of the plaintiff establishing sales from 1982 onwards in respect of ROCHAK and from 1985 onwards under AM PACHAN. The defendants have not even filed any material on record to show the period from which they began their sales under the offending packaging and the mark.

29. Learned counsel for the defendants also referred to the judgment of learned Single Judge of this Court in K.B Hiralal & Sons v. Kumar Industries, 1985 Arb. LR 265. The dispute related to the mark JULIE which was held not to be novel or originating from the plaintiff as the entire matter was copied from a still photograph of a film JULIE released in the year 1975. In the said judgment, it has been observed in paras 7, 9 and 10 as under:

“7. The defendant have oppose this application for the grant of interim injunction in their joint reply (IA No. 2019/78), they have stated that the plaintiff has not acquired any legal right to the tin containers as alleged. It is stated that the work ‘JULIE’ has been derived from Hindi Feature Film produced by M/s. Vijaya Productions (P) Limited, and the get up, colour scheme, arrangement of the words, letters and photos of the character, ‘JULIE’ have been derived from the still photograph of the sequence from the said feature film. It is further stated that the representation of the character ‘JULIE’ as shown on the defendants tin containers appears on the paper jacket produced and widely distributed by M/s. Polydor of India Limited under the series No. 2253/06 as adopted from the sequence of the film production. It is thus contended that the plaintiff has deliberately refrained from disclosing the material particulars which were well within its knowledge. It is submitted that by doing so, the plaintiff has made a false and misleading claim as to the proprietory right to the representation pertaining to the tin containers. It is thus, submitted that the plaintiff has knowingly made a false and misleading statement in relation to the material particulars and, therefore, the interim injunction granted be vacated and application be dismissed.

9. The geometrical boxes manufactured by both the parties have the same colour scheme and contained the name ‘JULIE’ the learned counsel for the defendants has pointed out that the picture ‘JULIE’ was released in 1975 and according to the plaintiff itself, it had placed an order for the supply of tin containers on 20th December, 1975. The same is evident from the photostat copy of a duplicate bill produced by the plaintiff. The learned counsel for the defen dant has thus submitted that the plaintiff has falsely stated in the plaint and also in the application under Order 39 Ruled 1 & 2 that the geometrical boxes in question having the distinctive tin containers entitled ‘JULIE’ were manu factured and sold from the year 1972. So much so, it is stated by the plaintiff that this firm alone had originated the getup, colour scheme, arrangement of words, letters and photos of the distinctive tins. It is also stated that this trade ‘JULIE’ has acquired vide reputation from the year 1972.

10. This all seems obviously incorrect because the picture was released in 1975 and the order for the manufacture of the containers was placed by the plaintiff on 20th December, 1975. The record cover of ‘JULIE’ film has been produced by the defendants. The photograph has been clearly taken from the film. Even the name ‘JULIE’ as it appears on the record cover has been copies out by both the parties. There is absolutely no originality on the part of the plaintiff. Clearly the plaintiff has made an incorrect statement by saying that it has been using such geometrical boxes from 1972. There users could only be some time after December, 1975. In my view this false representation on the part of the plaintiff is sufficient to disentitled it from the discretion being used in its favour. Intaking such a view I am fully supported by a Division Bench decision of this Court resorted as Prinal Chemical Works v. Sukhdayal. The relevant portion at page 562 reads as under:

“It is well established that he who comes into equity must come with clean hands. This applies strongly to parties seeking relief against the infringement of trade mark or in passing off action and against unfair competition. One seeking relief against the fraud of others must be free from fraud. An exclusive privilege for deceiving the public is assuredly one act that a Court of Equity can be required to section (3). Accordingly it is essential that the plaintiff'should not be in his trade mark or in his advertisement and business himself guilty of any false or misleading misrepresentation; that if the plaintiff makes any material false statement in connection with the property, which he seeks to protect he loses his right to the assistance of a Court of Equity; Thus, where by a sample or lable claimed as a trade mark is so constructed or worked as to make or contain a distinct assertion which is false, no property can be claimed on it or in other words the right to the exclusive use of it cannot be maintained.”

30. The facts of that case would have no material bearing in the given facts of the present case. It cannot be established at this stage that user of the word ‘AM PACHAN’ alleged to be in practice in Nepal has any material bearing in the present case. The registration itself is yet to be proved since it is not within the country. There is no question of any equities arising in favour of the defendants as the plaintiff, prima facie, has not concealed any material fact. The factum of any proceedings initiated in respect of the trademark ROCHAKA and the resultant registration of ROCHAK in view of the objections raised thereto would not affect the present case apart from the fact that the same relates to a third-party and the present case is also one of passing off.

31. The last judgment referred to by learned counsel for the defendants is of learned Single Judge of this Court in Anand Kumar Deepak Kumar v. Haldiram Bhujia Wala, 1999 PTC (19) 466 to advance the proposition that where a registration of the mark is by concealment of material facts, a fraud would vitiate all transactions including registration and the plaintiff was entitled to interim injunction against the registered mark. As explained above, I fall to find any case of fraud by the plaintiff whereby the plaintiff'should be dis-entitled to interim relief in the present case.

32. In view of the aforesaid position, I am of the consideration view that the plaintiff has made out prima facie case of the right to use the trademark ROCHAK and AM PACHAN and for a restraint order against the defendants from using pouches as per Annexure-Y and Z as also the consequent enlarged pouches. The continued sale by the defendants would result in not only a financial loss to the plaintiff, but the reputation of the plaintiff itself can be affected by the nature and quality of the product of the defendants. The defendants have not made out any case of prior user or sale, while the plaintiff has made out a case of continued prior use and sale leading to a reputation in the market. The balance of convenience is consequently in favour of the plaintiff.

33. The interim orders were granted on 26.09.2005 directing that the defendants are restrained from manufacturing, exporting, selling, offering for sale, advertising, exhibiting Ayurvedic Medicinal Products such as churan and tablets used for digestive purposes under the trade mark — ROCHAK and AM PACHAN — or any other identical or deceptively similar mark to the plaintiffs mark ROCHAK and AM PACHAN and from infringing copyright of the plaintiff in the artistic work of ROHAK and AM PACHAN in pouches Annexures-A & B by the pouches of the defendants given as Annexures-Y & Z to the plaint. The said interim orders are, thus, liable to be made absolute during the pendency of the suit. Orders accordingly.

34. Needless to say that any views expressed for disposal of these applications would not in any manner affect the final adjudication of the suit.

35. IA No. 7656/2005 is consequently allowed, while IA No. 10095/2005 is dismissed.

36. Parties are left to bear their own costs.

CS (OS) No. 1355/2005

37. The parties to file their original documents within four weeks.

38. List on 20.03.2006 before the joint Registrar for admission/denial of documents. List on 10.05.2006 before the court for framing of issues.