The Plaintiffs seek interlocutory relief in an action for passing off and infringement

2. The First Plaintiff is a Company incorporated under the provisions of the Companies' Act, 1956. The Second Plaintiff is a Director of the Company. Prior to the incorporation of the First Plaintiff, a business of manufacturing and marketing soap strips was carried on by a proprietary firm of Dhanvantrai Ramshankar Joshi. The case of the Plaintiffs is that the First Plaintiff was incorporated on 30th March, 1999 to convert, as a going concern, the existing proprietory business together with its name, goodwill, licence, assets and liabilities into a corporate entity. The First Plaintiff was initially known R as Dhanvantrai Ramshankar Cosmetics Pvt. Ltd. In pursuance of a certificate issued on 21st May, 2002 by the Registrar of Companies, the name of the Company has been abbreviated to D. R. Cosmetics Pvt. Ltd. The Directors of the Company are members of the family of the erstwhile proprietor who has since expired.

3. The primary business of the Plaintiffs consists of the manufacture, marketing, distribution, export and sale of soaps and soap products. A trade mark called BUFIN was conceived by the Plaintiffs' predecessors- (in-title in 1972. Registration of the mark was granted on 7th April, 1972 to the erstwhile proprietor in Class 3, in respect of soaps, cosmetics, non-medicated toilet preparations and shampoo. The registration was renewed on 7th April, 2000 for seven years and continues to subsist on the Register. On 27th November, 2003 the Plaintiffs applied for registration of a label mark which was allowed on 3rd September, 2005. The registration dates back to the application for registration. On 12th September, 2003, the First Plaintiff requested the Registrar of Trade Marks to enter its name in the Register as a proprietor of the trade mark "BUFIN" bearing No.279406 and registered in Class 3. This application was allowed by a communication dated 26th October, 2007 of the Trade Mark Registry.

4. The Plaintiff have disclosed in Exhibit D to the Plaint details of their sales and of the advertising expenses from 1st April, 1973 till 31st March, 2007. The sales figures which stood at Rs.5.10 lakhs for the year 1978-79, increased to Rs.45.92 lakhs for 1993-94, Rs.l.04 crores for 2000-01 and Rs.l.19 crores for 2004-05. The Plaintiff have annexed, inter alia, invoices commencing from the year 1978 and bills raised by the advertising agencies.

5. The Plaintiffs manufacture soap strips which consist of a special paper on which a thin coating of soap is applied. The strips of soap are bound together in packs of ten from which each strip can be conveniently removed. Rubbing the soap strip on a wet surface generates lather. According to the Plaintiffs, these strips of soap are particularly useful of maintaining personal hygiene in the course of travel. A label mark is stated to have been adopted in 1983 which inter alia consists of an artistic work. The label mark comprises of the device of a woman with lathered hands resting upon her face. The mark BUFIN appears prominently thereon. The label contains details of the date of manufacture, the licence and batch number and of the Total Fatty Matter (TFM).

6. In or about September, 2003, the Plaintiffs claim to have learnt of the use of an allegedly deceptive word mark by the name of BUFER by the Defendant with a label possessing a similar colour scheme and get up. The Plaintiffs filed a criminal complaint on 12th September, 2003. On 24th September, 2003, the Metropolitan Magistrate in the 25th Court at Mazgaon, directed an investigation under Section 156(3) of the Code of Criminal Procedure, 1973. The Senior Examiner of Trade Marks furnished an opinion to the Investigating Officer on 9th February, 2004. On 13th November, 2004, a report was submitted to the Magistrate that the Police did not find substance in the complaint. An application for further investigation was thereupon dismissed and