MADAN B. LOKUR, J.

( 1 ) THE Appellant is dissatisfied with an order dated 24th February, 2004 whereby an application filed by the Respondent for grant of an injunction under Order XXXIX Rule 1 and 2 of the CPC was allowed and an application filed by the Appellant under Order XXXIX Rule 4 of the CPC was dismissed.

( 2 ) THE Respondent says that it is a partnership firm carrying on business since 1990 in the name of SAS Pharmaceuticals. It manufactures and markets various medicinal and ayurvedic preparations, one of them being REGULIN. It is the registered proprietor of its carton REGULIN and REGULIN FORTE under the provisions of the Copyright Act. This design was conceived in 1990 and in the carton the word REGULIN and REGULIN FORTE have been in use for a long time. The trademark REGULIN has a unique get up, design, placement of words, colour scheme etc. It has a high degree of recognition, reputation and goodwill and sales of this ayurvedic medicine runs into lakhs of rupees. It is a medicine for curing menstrual disorders in ladies.

( 3 ) THE allegation against the Appellant was that it has adopted a similar or identical trademark REGU-30 for the same type of medicine with a similar carton and design of packing. The intention of the Respondent, it is said, is to confuse and deceive unwary consumers by passing off its goods as those manufactured by the Respondent. In view of this, the Appellant should be injuncted from marketing REGU-30, which is deceptively similar to the Plaintiff s trademark and label REGULIN.

( 4 ) AN ad interim ex parte injunction was granted by the learned Trial Judge and thereafter the Appellant filed an application under Order XXXIX Rule 4 of the CPC for having the ex-parte ad interim injunction vacated. By the impugned order, the application for grant of injunction as well as the application for vacation of the ex parte ad interim injunction were disposed of.

( 5 ) IT was submitted by learned counsel for the Appellant that the Respondent had sent a lawyer s notice to the Appellant on or about 26th December, 2001 requiring the Appellant to cease and desist from passing off its goods as those of the Respondent. This notice was replied to by the Appellant on 4th January, 2002 denying any wrong doing. Thereafter, according to the Appellant, the Respondent kept absolutely silent until the present suit was filed on or about 13th October, 2003. The first contention of learned counsel for the Appellant, therefore, is that because of the delay, the Respondent has given up its claim of the alleged passing off the mark REGU-30 by the Appellant.

( 6 ) THE second contention of learned counsel for the Appellant was that there was no question of passing off the goods of the Appellant as those of the Respondent. It was submitted that the cartons are completely different and there is no similarity between the words REGU-30 used by the Appellant and the words REGULIN FORTE used by the Respondent.

( 7 ) INSOFAR as the first submission is concerned, I think the issue is no longer res integra. Effect of delay

( 8 ) IN Dr. Ganga Prashad Gupta and Sons vs. S. C. Gudimani, 1986 PTC 17 the plaintiff came to know in 1977 that the defendant was passing off its goods as those of the plaintiff. Accordingly, an appropriate notice was issued to the defendant in July 1977, but a suit for perpetual injunction was filed only in March 1980. Adverting to the delay, it was held that this might be a factor disentitling the plaintiff from obtaining a relief of rendition of accounts. However, in so far as the defendant was concerned, if he still chose to continue using the offending trademark, it was at his own risk and responsibility. In other words, delay was held as not fatal for the grant of an injunction.

( 9 ) IN Hindustan Pencils Pvt. Ltd. vs. India Stationery Products Co. , AIR 1990 Delhi 19 it was held that even in a case of honest concurrent user by the defendant, inordinate delay or laches may defeat a claim for damages or rendit

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