JUDGMENT - BOBDE S.A., J.:---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 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.

4. Mr. Kadam, learned Counsel for the plaintiffs submitted that firstly the defendants mark AYUSH is deceptively similar to the plaintiffs mark AYUSHAKTI and therefore by using that mark on the defendants products the defendants are passing off their goods as those of the plaintiffs. On this ground alone the defendants are liable to be injuncted. On the other hand, Dr. Tulzapurkar, the learned Counsel for the defendants denied that there was any deceptive similarity between the defendants mark AYUSH and the plaintiffs AYUSHAKTI and therefore the prayer for injunction is liable to be refused. In particular, the learned Counsel for the defendants submitted that the plaintiffs are not entitled to any relief much less an injunction since the plaintiffs themselves have taken mark AYUSHAKTI from the mark AYUSH which stood on the register in the name of other traders and therefore the plaintiffs are not proprietors of the trademark. It is necessary to consider this point first.

5. The plaintiffs adopted their mark sometime in April, 1996. According to the defendants, the following marks were in existence when the plaintiffs started using the mark AYUSHAKTI.

(1) "AYUSH" bearing Registration No. 4720578 in Class 3 standing in the name of Jayalakshmi Oil and Chemical Industries Limited, Andhra Pradesh vide Exhibit C-2 to the affidavit in reply.

(2) "AYUSH" for which an application for registration made by Pradeep Paraskhanewala dated 8th July, 1994 was pending.

(3) "AYUSH" for which an application made by Ajanta Pharma on 14th August, 1996 was pending.

(4) "AYUSH" an Application No. 587823 made by Shree Jatinder Sodi sometime prior to 8th July, 1994 was pending.

Therefore, according to the defendants the plaintiffs must be taken to have copied the mark from the register of which they have themselves taken a manual search as stated by them in paragraph 9 of the plaint. According to the defendants, the fact that the plaintiffs have copied the mark AYUSH is proved according to the doctrine of res ipsa loquitur i.e. the thing sp

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