JUDGMENT - A.P. SHAH, J.:---This appeal by the original plaintiff is directed against the order dated 18th February, 1997 whereby the learned Single Judge dismissed the plaintiff's notice of motion for interim injunction. The appellant is manufacturer and dealer in buckets, milk cans, containers and sieves and other similar goods. The appellant alleges that he has adopted trade mark and label mark consisting of the words "OM PRABHAT" written in English and device of "COW" in respect of buckets, milk cans and sieves in the year 1972. The trade mark and label are at Exs. A-1 and A-2 to the plaint. The essential features of the trade mark given in Ex. A-1 are the device of cow within two curved lines. Above the said device of cow, the words "OM PRABHAT" are represented along the top curved line and the bottom curved line similarly followed alongwith the word "BOMBAY" so as form the ground or base of the said device. The trade mark Ex. A-2 consist of the words "OM PRABHAT" written with an oval like device and is embossed on the product in addition to the printing on the outer package. On 20th August, 1975 the appellant applied for registration of the trade mark Ex. A-1 under the Trade and Merchandise Marks Act, 1958 (hereinafter called "the Act") and the same has been registered under No. 307852 in respect of buckets included in Class 21 for sale in the State of Maharashtra, Gujarat, Madhya Pradesh, Union Territory of Goa, Daman and Diu on 18th July, 1979. The trade mark OM PRABHAT was registered under the Act as a trade mark No. 351518 in respect of sieves, milk cans and winnowing baskets. According to the appellant, the device of cow is the most essential integral and memorable part of the trade mark registered under No. 307852. The milk dhabbas, milk cans and buckets of the appellant bearing the said label are identified by the members of the public as the COW BRAND products of the appellant alone and of none else in the market. In or about 1990 the appellant added the words "GAI CHAAP" above the upper curved line and commenced describing the said device in Devnagiri script also. The said trade mark is continued to be used till today in respect of buckets including milk cans. According to the appellant the products bearing the aforesaid trade mark of the appellant are very popular. The appellant has annexed to the plaint the sale figures of the appellant's product at Ex. B.

2.The appellant has alleged that in or about 1993 he came across an advertisement in the Trade Mark Journal dated 16th November, 1994 for a label mark sought to be registered by the first respondent in respect of milk cans and buckets in respect of which the appellant's trade mark is already registered. The essential features of the said trade mark sought to be registered was a device of cow enclosed within two curved lines. The words COW BRAND were written under the top curved line and the word BOMBAY was written below the bottom curved line. Since the said trade mark was nothing but a slavish copy of the appellant's trade mark No. 307852, the appellant opposed the registration of the said trade mark by filing a notice of opposition in or about 9th March, 1994. In the reply filed by the respondents to the opposition, it was contended that the first respondent had applied for registration of another trade mark bearing No. 493496 having a device of Ox and has been using both the trade marks. On taking search at the Trade Marks Registry, the appellant found that the said trade mark had been advertised in the Trade Marks Journal No. 1064 dated 1st October, 1993 in respect of milk cans in Class 21. The essential features of the said trade mark sought to be registered was a device of an Ox enclosed in two similar curved lines. The word OX BRAND was written under the top curved line and the word BOMBAY is appearing below the bottom curved line. The trade mark was proposed to be used in respect of milk can. Thereafter the appellant came across another advertiseme

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