S.N. Satyanarayana, J.

1. This revision petition is filed by the 1st defendant in O.S. No. 6362/2009 pending on the file of 18th Additional City Civil Judge, Bangalore, challenging order dated 09 12.2009 dismissing its application filed under Sections 20 and 21 r/w Order VII Rule 11(1)(a) of the Code of Civil Procedure. The parties to this revision are referred to by their ranking in the Trial Court for the sake of convenience.

2. The facts leading to this revision are as under: Plaintiffs 1 to 3 are companies incorporated under the provisions of the Companies Act, 1956, 1st plaintiff is carrying on business in manufacture and sale of Deodorant Body Sprays, Shaving Creams, After Shave Lotions, After Shave Moisturising Gels under the brand name and trade mark of "INSTINCT", which is registered in its name initially in the year 1992 under trade mark Nos. 583418 and 809510 under the then Trade and Merchandise Marks Act, 1958, subsequently, registered under the Trade Marks Act, 1999 under Class 3 being Cosmetics, Perfumery, Toiletries including Hair Lotions, Shampoos, Skin Care Lotion, Shaving Cream, After Shave Lotion. The said trademarks are renewed from time to time are in force up to 21.10.2012 and 10.7.2018 respectively.

3. The 2nd plaintiff is a company manufacturing, marketing and selling same products since 1992 under licence from 1st plaintiff granted in its favour to use, manufacture and get manufactured any goods using the said trade mark "INSTINCT" for a period of 7 years in terms of agreement entered into between them on 01.03.2006. Plaintiff No. 3 has acquired the trademark registered as "INSTINCT" from 1st plaintiff under deed of assignment dated 10.05.2007. Since then 3rd plaintiff has been continuing the business of manufacture of same range of products manufactured by 1st plaintiff by virtue of assignment in its favour. After assignment of proprietorship of trademark rights in its favour, the 3rd plaintiff recognised the earlier licence issued by 1st plaintiff in favour of 2nd plaintiff and confirmed the same by an agreement dated 01.06.2007.

4. According to plaintiffs, defendants are engaged in manufacture and sale of fast moving consumers goods. The 1st defendant manufactures and exports, 2nd defendant imports and distributes cosmetics and allied products including Deodorants, Shaving Creams, etc. It is the case of plaintiffs that the defendants having known the popularity of plaintiffs trademark "INSTINCT" and with a malafide intention of taking undue advantage of plaintiffs' trade mark "INSTINCT have now released in to market a Deodorant and Shower Gel under the name and style of "Axe INXTINCT". According to the plaintiff's the word "INXTINCT" used by defendants on its deodorant is prima facie, phonetically and deceptively similar to the registered trademark "INSTINCT" of plaintiffs. The defendants with a view to en-cash the popularity of plaintiffs trademark "INSTINCT are widely selling, marketing and distributing Body Deodorants under the name and mark 'Axe INXTINCT' through their distributors, stockists, dealers, agents and resellers all across the country.

5. Hence plaintiffs together filed a suit in O.S. No. 6362/2009 on the file of the Additional City Civil Judge, Bangalore (CCH No. 10) against the defendants seeking the relief of permanent injunction against defendant Nos. 1 and 2, their distributors, stockists, business partners, employees, resellers, agents, representatives claiming through or under them from using in any manner the trade mark "INSTINCT” or name or mark “INSTINCT” which is phonetically and deceptively similar to plaintiffs' trademark “INSTINCT”, in relation to any goods, products or services, from selling, marketing, importing, exporting or distributing any goods, products or services that bear the name or mark 'INSTINCT' or 'INXTINCT', from issuing or causing to be issued any advertisements, promotions or campaigns in any media in respect of promotion, selling, marketing or distribu