The prior user of a trademark is entitled to an interim injunction restraining a subsequent user from using the same or a deceptively similar trademark in respect of the same or similar goods or services.

( 1 ) THE interim applications being I. As. No. 5042/1998, and 5373/1998, have been moved by plaintiff Herb Shop (India) Private Limited under Order 39, Rules 1 and 2, Civil Procedure Code in S. No. 1123/1998. In the first application the relief sought is that the defendant, its proprietor etc. be restrained from using the trademark NECTAR/and or any other trade-mark deceptively or confusing similar to the trade-mark NECTAR and from passing off its goods as and for the goods of the plaintiff s, by use of the trade-mark NECTAR. In the second application the relief claimed is to restrain the defendant, its proprietor etc. by a permanent injunction restraining it from using NECTAR/ and or any other trade-mark or trade-name deceptively or confusing similar to the trade-mark NECTA. R in respect of lipsticks or other cosmetics products.

( 2 ). Thus in the reliefs claimed in these applications there are few distinctions. Firstly, in the first application, the relief sought is by way of interlocutory injunction whereas in the second application the relief sought for is by way of permanent injunction; secondly, in the first application it is not mentioned as to in respect of which goods the relief is sought for whereas in the second application the relief sought for is in respect of lipsticks or other cosmetics products and, thirdly in the first application the relief sought for is in respect of only the trade-mark NECTAR whereas in the second application, the relief sought for is in respect of trade-mark as well as trade-name.

( 3 ). On perusal of the order sheets in the suit, it transpires that when the first application 1. A. No. 5042/1998, was taken up for consideration on May 29, 1998. . C. M. Nayar, J. only issued notice in the same and did not pass any ex parte interim order. Thereafter, the second application LA. No. 5373/1998, was moved during the vacations on July 2, 1998 and K. Ramamoorthy,j. the Vacation Judge, while issuing notice passed an ex "parte interim order directing the defendant, its proprietor, partners, directors, servants, agents, representatives and assigns from using NECTAR and/or any other trade-mark or trade-name deceptively or confusingly similar to the trade-mark NECTAR in respect of lipsticks or other cosmetics products until further orders.

( 4 ). Originally the suit was filed against one defendant, namely, NECTAR (U. K.) Limited. On July 21, 1998, the sole defendant NECTAR (U. K.) Limited moved an application being I. A. No. 6026 /1998, under Order 39, Rule 4, Civil Procedure Code and requested the Court to either vacate the ex parte interim injunction order dated July 2, 1998, or the same be modified/varied so as to permit the defendant to use its corporate name while disclosing the name of manufacturer of the Avon Products on the packaging and the product. It was also, in the alternative, prayed that the said ex parte order dated July 2, 1998, be clarified that the defendant was not restrained from manufacturing and supplying the Avon Product to Avon Beauty Product Private Limited under its existing name NECTAR (U. K.) Limited. At that stage, the suit was transferred to this Board and this I. A of the sole defendant was taken up by me for consideration in the presence of the Counsel for plaintiff on July 30, 1998. Notice in this application was given to plaintiff with time to file reply but in the meantime, without prejudice to the rights and contentions of the parties and without expressing any opinion about the respective cases, it was directed that defendant was not restrained in selling its products in the name of Avon to the Avon Beauty Products (India) Private Limited. It may, however, be mentioned here that in the original plaint as well as in the amended plaint there is no prayer that the defendant be permanently restrained from using its trade-name in respect of lipsticks or other cosmetics products but in the interim injunction application being I. A. 5373/1998, the plaintif