The judgment established that the generic nature of a word and the absence of deceptive similarity between competing products are crucial factors in determining the grant of injunction in passing off cases.

( 1 ) THE application (I. A. 6122/2000) has been filed by the plaintiff under Order XXXIX, Rules 1 and 2, CPC for interim injunction and the application (I. A. 6523/2000) is an application under Order XXXIX, Rule 4, CPC filed by the defendant for vacation of the ex parte interim injunction granted by this Court on 19th June, 2000.

( 2 ) THE plaintiff has filed this suit seeking an injunction against the defendants 1 and 2 for the infringement and passing off the defendant s ayur Slim Tablets which according to the plaintiff were deceptively similar to the plaintiff s product in question which is a wooden tumbler called ayur Dia Slim Tumbler . The defendant No. 1 is a stockist of the product Ayur Slim Tablets manufactured and marketed by the defendant No. 2 (hereinafter referred to as the defendant ).

( 3 ) DURING the course of the arguments the learned Counsel for the plaintiff stated that he is not pressing the relief for infringement as the trade mark is not registered for the Ayur Dia Slim Tumbler and is confining his case for an injunction in respect of passing off only. The plaintiff submits that if is the maker of several cosmetic products under the registered trade mark ayur including cream, skin cream and ayurvedic medicines. The plaintiffs inter alia also markets its product called ayur Dia Slim Tumbler which according to the plaintiff is an ayurvedic treatment for reducing fat and weight and also controlling the sugar. The said Dia Slim Tumbler is made out of wood. The mode and method of user is by filling up the wooden glass overnight with water and drinking it in the morning which is said to reduce body fat and control blood sugar. On the plaintiff s product below the words ayur Dia Slim Tumbler is carried a notation "natural Diabetes Controller Glass".

( 4 ) THE plaintiffs case is that for the last 15 years the plaintiff s trade mark/ artistic work ayur has acquired a unique reputation and valuable goodwill in the eyes of the public and the trade and the user of the trade mark by any other would tend to misled the customers into purchasing the marketed goods as those of the plaintiff. The plaintiff s claim is it has advertised extensively in respect of the mark ayur in various forms of media including the National TV Network. The plaintiff has complained that the defendant has marketed medicines under the trade mark ayur Slim Capsules which according to the claim of the defendant bum excess fat. The averment of the plaintiff is that the defendant has also copied the artistic work of the plaintiff because the overall appearance, get up and lay out of the defendant s product is identical and or deceptively similar to those of the plaiiitiff s trade mark. It is said by the plaintiff that the product of the defendant" ayur Slim Capsule is equivalent to plaintiff s product ayur Dia Slim as the purpose of goods of both the parties as well as the customers are the same. Consequently it is submitted that the likelihood of confusion and deception is more.

( 5 ) THIS matter came up before the Hon ble Vacation Judge first time on 19th June, 2000 when anexparte order of injunction was passed restraining the defendant from using the trade mark ayur Slim or any other trade mark identical with or deceptively similar to the plaintiff s trade mark ayur in relation to medicines and other allied and cognate goods until further orders. This ex parte interim order was sought to be vacated by filing an application under Order XXXIX, Rule 4, i. e. I. A. 6523/2000.

( 6 ) BOTH the applications have been heard together and are being disposed of by this common order.

( 7 ) THE case of the defendant is that the plaintiff is not a registered user of the owner of the trade mark ayur and the tumbler of the plaintiff bears the circled r to wrongly imply that the trade mark is registered. The learned Senior Counsel for the defendant Mr. V. P. Singh, has further submitted that the word ayur is of generic an