( 1 ) THE plaintiff Ajendra Kumar Aggarwal, Proprietor of Dayal Medico carrying on business in Mathura has filed the above suit against two defendants for an injunction restraining infringement of trade mark and injunction on the ground of passing off. The product invented and manufactured by the plaintiff and the first defendant arc Ayurvedic medicines. According to the plaintiff he is engaged in the business of manufacturing and marketing Ayurvedic medicines for the treatment of Stop Menses Clear. He has been in the business since January, 1990 carrying on business under the trade Mark MENSUROL. The trade mark according to the plaintiff is registered. Originally the business was carrying on by a parter and now he is the proprietor. According to the plaintiff, relating to the carton and logo the plaintiff has applied for registration. It is the assertion in the reply on account of distinctiveness acquired by the plaintiff and no one else in the market could use the trade mark and deceptively similar to MENSUROL.

( 2 ) THE plaintiff has given his sales figures in paragraph 7 of the plaint as follows:

( 3 ) IT is also the case of the plaintiff that the trade mark MENSUROL logo has become synonymous with the plaintiff in view of its long continuous extensive and exclusive user.

( 4 ) THE plaintiff came to know that the defendants had started selling the same Ayurvedic medicine under the trade mark MENSURE, manufactured by the first defendant and the marketed by second defendant. The case of the plaintiff is that MENSCURE logo chosen by the defendant is similar to the trade mark MENSUROL logo of the plaintiff in its get up, make up and lettering style and also its placement and arrangement inside a rectangle. It is asserted by the plaintiff "the resemblance of the defendants impugned trade mark MENSCURE logo is extremely close to the plaintiffs trade mark MENSUROL logo phonetically as well as visually".

( 5 ) IT is not disputed that the plaintiff and the defendant are operating in the same line of business under the same area and the markets.

( 6 ) THE plaintiff has filed IA No. 4146/96 for an injunction pending his suit.

( 7 ) THE Plaintiff has filed 10 documents. Document No. 1 is the certificate of registration of trade mark MENSUROL. The certificate is dated 17. 4. 1995. It is stated therein that the persons who had applied for registration have been using it since 20. 4. 1990. Second document is the advertisement made by the plaintiff for MENSUROL logo and carton for registration. This is the document showing the advertisement in the Trade Mark Journal. Third document is a letter dated 22. 5. 1995 from the Registrar of Trade Marks to the plaintiffs advocate staling that no other person is using the trade mark MENSUROL. The Registrar of trade marks had seen the certificate alongwith the letter under Section 45 (1) of the Copy Right Act, 1957 The certificate reads as follows:

"it is hereby certified that a search has been made among the collection of pending marks as well as in the Register of Trade Marks for the artistic work as a whole and that no trade mark identical with or deceptively similar to the above said artistic work (a copy of which is annexed hereto) has been registered or applied for registration under the Trade and Merchandise Marks Act, 1958. Dated this 17th day of May, 1995".

( 9 ) THE next document shows the sales figures and also expenditure on account of advertisements, the next document is the logo of the first defendant showing the carton and the name of the trade mark MENSCURE. The next document is the copy of the newspaper Amar Ujala, Agra dated 15. 4. 1996 which shows the advertisement of the defendants trade mark MENSCURE. The next document is letter dated 1. 2. 1995 from the plaintiff to the Registrar, Trade Mark. Next document is copies of newspapers showing the advertisement made by the plaintiff for its product under the Trade Mark MENSUROL. the last document is the invoice dated