( 1 ) ALONG with suit, for perpetual injunction for infringement of trade mark and copyright, plaintiff filed an application, being I. A. No. 4138 of 1985, under Order 39 Rules 1 and 2 read with Section 151 of Civil Procedure Code, thereby claiming the following temporary inju. nction :

"it is humbly prayed that pending the hearing and final disposal of this suit. the defendants themselves, there servants, agents, stockists and all other persons on their behalf be restrained from using and infringing mark in relation to any vaporising ointment or any other preparation, the trade mark Vlkas s PACORUB, bottles and metal containers as per annexures e and f which is in infringement of the plaintiffs registered trade marks Nos. 328354, 328355 and 267167. The defendants may be further restrained from passing off and enabling others to pass off their vaporising ointment or other product in bottles and metal containers annexures e and f as and for that of the plaintiffs or in some ways connected with that of the plaintiffs. The Defendants may be further restrained from infringing the plaintiff s Copyright in annexures a and b . " Vide an exparte order dated 31-7-1985 defendants, their agents, servants, stockists and all other persons on their behalf were restrained from using infringing mark in relation to any vaporising ointment or any other preparation, the trade mark yikas s PACORUB bottles and metal containers, as per annexures e and p or any other mark of the plaintiff.

( 2 ) THEREAFTER, defendants filed an application, being I. A. No. 4467 of 1986, under Order 39 Rule 4 read with Section 151 of Civil Procedure Code, for discharging and vacating the aforesaid order. It was further prayed that defendants be allowed to use and continue to use the trademark vikas s PACORUB and their labels, during the pendency of the suit.

( 3 ) BY this order, I purpose to dispose off these the applications.

( 4 ) FOR better appreciation of the respective contentions of learned counsel for parties, it will be useful, prefer to, in brief, the facts of the case.

( 5 ) PLAINTIFF no. 1 is a well known international company, inter alia, carrying on business as manufacturers and dealers in medicinal and pharmaceutical products and formulations. Plaintiff no. 2 carries on business as manufacturers of medicinal and pharmaceutical preparations.

( 6 ) THE goods, manufactured by plaintiff No. 1 as well as by plaintiff No. 2, under the supervision and control, are well known for their superior quality. Plaintiff No. 2 is the registered proprietor of the word marks vaporub and vicks and a label mark bearing the words vicks VAPORUB , in respect of the goods, falling in Class 5 of the Fourth schedule to the Trade and Merchandise Marks Rules, 1959 The registration of the aforesaid trade mark vicks VAPORUB bearing No. 267167 vicks bearing No. 328355 and vaporub bearing No. 328854 are valid and subsisting under the provisions of Trade and Merchandise Marks Act, 1958. Plaintiff No. I and its predecessors have been using the marks since 1924.

( 7 ) PLAINTIFF No. I permitted and authorised plaintiff no. 2, to manufacture decongestant vaporising oinment, bearing the trade mark vicks VAPORUB . The bottles, in which the aforesaid product is sold, are coloured blue and at the base of each bottle, the words vicks VAPORUB are embossed in a circle with the letters pf being inwards of the name of the manufacturers The bottles are fitted with a green coloured metal tempered screw, having a distinctive design, letterpress, colour scheme and get up. All the lettering is in dark blue colour The label, has also distinctive design, layout, colour scheme and get-up generally The label consists of three parts namely, green rectangle, white square and a similar green rectangle. The white spuare contains the words vicks and the word vaporub printed in English and in Devnagari script in black letters and red letters respectively, and on