( 1 ) THE application under Order 39 Rules 1 and 2 Civil Procedure Code for temporary injunction has been moved by the plaintiff in the suit for perpetual injunction to restrain the defendants from infringing their registered trade mark "himalayan -BATISA" and, from using the artistic work/ label registered under,the Copy Right Act,1957 in respect of "ayurvedic veterinary medical preparations" and from passing off their goods under the of fe. ndi. ng trade mark "himalaya BATISA" or under any other trade mark/label which may be identical with and/or deceptively similar to the plaintiffs registered trade mark.

( 2 ) PLAINTIFFS have been carrying on their business of manufacturing and marketing of "ayurvedic veterinary medical preparations" since 1956 under the trade mark/label himalayan BATISA" which is duly registered in the name of the plaintiffs under the Trade and Merchandise marks Act,1958 (in short the Act. ). The plaintiff No. 1 is also the owner of copyright of the artistic work of the label consisting of "himalayan BATISA" which is duly registered under the Copy Right Act, 1957. The allegations are that the products of the plaintiffs marketed under the trade mark and artistic label "himalayan BATISA" connote and denote the goods and merchandise of the plaintiff s origin and none-else. Plaintiffs claim that sale of aforesaid goods under the registered trade mark and artistic label runs into crores of rupees. They claim to have acquired an enviable goodwill in the minds of the purchasing public and the trade, and "ayurvedic veterinary medical preparations" manufactured by them and marketed under the impugned trade mark and artistic label are exclusively identified, recognised and associated with plaintiffs.

( 3 ) EARLIER in the year 1985 Sohan Lal Ji, father of defendant No. l infringed the trade mark of the plaintiff by manufacturing and selling the products under the trade mark "himalaya BATISA No. 777" which was phonetically and deceptively similar to that of the plaintiff s trade mark "himalayan BATISA". The colour combination, get up, lay out and arrangement of the label was also copied. The plaintiffs served a notice on Sohari" Lal Ji calling upon him to stop its user of the offending trade mark, in response to which he undertook in his reply to stop such user. Sohan Lal ji died in 1986 but his son, defendant no. 1, Lalji Mal, continued with the said deceitful infringement. Plaintiff filed a suit No. 15/86 for perpetual injunction on 16/07/1986 against defendant no. 1 in the court of District Judge, Saharanpur. That suit was compromised under Order 23 Rule 3 Civil Procedure Code defendant No. 1, being the sole proprietor of Moti Kiryana stores, gave an undertaking to the Court that in future he would not use the trade mark "himalaya BATISA NO. 777". The said suit was decreed in terms of the compromise on 1 1/03/1987. Defendant No. 1, thereafter closed his firm M/s Moti Kiryana Stores and started a new firm M/s saharanpur Batisa Co. , Bhiwani (defendant No. 2) and again/ started using the trade mark "himalaya BATISA" and using the same on the cartons which was identical and/or deceptively similar to the registered trade mark of plaintiffs. The plaintiffs on coming to know about this infringement filed an execution application in december,1995 which was transferred to the Court of district Judge, Bhiwani. Defendant No. l made a statement in the execution petition that he was not manufacturing and marketing under the trade mark himalaya BATISA no. 777" and after closing down his earlier company he had started using the trade mark himmatmala HIMALAYA BATISA for which he had obtained a registered trade mark number. On this statement, the execution petition was dismissed. In the revision petition, preferred by the plaintiffs, punjab and Haryana High Court set aside the order of dismissal of the execution petition and remanded it back for deciding the same after recording evidence, if need be.

( 4 ) SIN