JUDGMENT

S.J. Kathawalla, J. - The Plaintiffs seek to move without notice for the reasons set out in paragraph 23 of the Plaint and paragraph 5 of the Affidavit in support of Notice of Motion. This is an action for infringement of Plaintiffs'' registered trade mark and copyright combined with a cause of action for passing off.

2. The Plaintiff No. 1 is described as a private limited company incorporated under the Companies Act, 1956 and carrying on business inter alia as manufacturer and exporter of pharmaceutical, medicinal preparations and health care products in India. The Plaintiff No. 2 is described as a Company organized and existing under the laws of British Virgin Islands and is carrying on business in India through its Licensee the Plaintiff No. 1. The Plaintiff No. 2 is the owner of various trade marks and Copyrights including the trade mark/label Super Apeti originally belonging to Plaintiff No. 1. By Deed of Assignment dated 15th January 2009, the Plaintiff No. 2 has acquired the trade marks and Copyrights of Plaintiff No. 1 along with the goodwill. The Plaintiff No. 1 is now the Licensee of various trade marks, copyrights belonging to Plaintiff No. 2 including the trade mark/label Super Apeti.

3. In the year 1994, the Plaintiff No. 1 adopted the word mark "SUPER APETI" for use in respect of its medicinal and pharmaceutical preparations. On 25th September 1997, the Plaintiff No. 1 applied for registration of the said mark under application No. 766836, which was put on the Register of trade marks on 12th August 2003. By virtue of the Deed of Assignment dated 15th January 2009, the Plaintiff No. 2 is now the subsequent proprietor of trade mark "SUPER APETI" and its name has been brought on record in the Register of trade marks. Thus, Plaintiff No. 2 is the registered proprietor of Trade mark "SUPER APETI" in India. The said registration bearing No. 766836 in class 05 has a condition "registration of this trade mark shall give no right to the exclusive use of the words Super". Mr. Kamod submitted that the disclaimer would not make any difference as the Plaintiff is not claiming any exclusive right in the word ''Super''. He submitted that it is a well settled principle that for the purpose of comparing the rival trade marks, even the disclaimed feature has to be considered i.e. the marks have to be compared as a whole.

4. The Plaintiffs'' product "Super Apeti" is sold under a label/packaging/trade dress which is artistically designed packaging and comprises of distinctive colour-scheme, lay out, get up, trade dress. The front panel of carton consists of a light blue colour background wherein in the top portion there is a red colour device with the Trade mark SUPER APETI written therein in white colour. Below the Trade mark, the composition is shown in dark blue and green colour. In the back ground there are device of Milk bottle, fruits, chicken and fish spread across the breadth of the carton. Similar red coloured device bearing the Plaintiffs'' mark and composition shown in dark blue and green colour appears on the flap panels of the carton on both sides. Within the carton there are individual strips in silver and light blue combination with white coloured tablets. The said artistic work was designed under a contract by an employee who is named in the plaint. The copyright in that artwork was registered under the Copyright Act,1957 on 6th April 2004 and has been assigned by the Plaintiff No. 1 to the Plaintiff No. 2 in 2009. Copyright Registration certificate is at Exhibit-G to the Plaint. This registration is valid and subsisting and. The Plaintiffs'' label is reproduced hereinbelow:

5. The Plaintiffs have also secured registration of their trade mark label SUPER APETI bearing No. 1208191 in class 05 as of 20th June 2003 in respect of the pharmaceutical and medicinal preparations. The said registration is subject to a condition "registration of this trade mark shall give no right to the exclusive use of the Super, th