JUDGMENT :

S.U. Kamdar, J.-The present notice of motion is taken out by the plaintiffs seeking reliefs that the defendants should be restrained from using the trade mark 'Ajanta' in respect of the non-medicated toilet preparations including tooth paste, soaps, shaving cream, shampoo and allied goods. The said injunction is sought by them on grounds of both infringement of "trade mark" and "passing off. However, the learned Counsel appearing for the plaintiffs has fairly stated that he is pressing relief only on the basis of a "passing off action in view of the fact that the defendants mark "Ajanta" is registered for the tooth paste. He has further submitted that though the reliefs in the motion are sought in respect of various non-medicated toilet preparations including soaps, shaving cream, shampoo, cosmetics and allied goods, for the purpose of the present notice of motion he is restricting his claim to passing off only in respect of tooth paste.

2. Some of the material facts of the present case, briefly enumerated, are as under:

3. In the year 1950 a company known as Bombay Brush Co. which was a partnership firm accepted a trade mark "Ajanta" in respect of tooth brushes. In 1958, a