DR. S. MURALIDHAR, J.

1. Aggrieved by the dismissal of its application IA No.1910 of 2007 under Order 39 Rules 1 and 2 CPC in CS (OS) No.314 of 2007, the Plaintiff Dabur India Limited (DIL) has filed this appeal. With the consent of parties the appeal is taken up for final hearing.

2. The Appellant states that it is the fourth largest fast moving consumer goods company in India engaged in the business of manufacturing pharmaceuticals, toiletries and medicinal preparations and that it has been carrying on its trading activities since 1884. Among its reputed products is Amla Hair Oil which is being marketed under the trade mark Dabur Amla Hair Oil. The Appellant states that besides vast sales in India it has also been exporting Dabur Amla Hair Oil to various countries since 1884. Dabur Amla Hair Oil is marketed in plastic bottles shaped with a semi-circular shoulder with curvaceous back and front panel tapering into each other, thereby providing a novel and original overall appearance and look to the Appellants bottle. The said design being unique, aesthetically novel and original is also registered under the Designs Act, 2000 under Design Registration No.173234 dated 24th February 1997 in favour of the Appellant. It is stated that the design registration stands renewed till 24th February 2012. The green cap used in relation to the said plastic bottle has also been separately registered under Design Registration No.171486 dated 11th June 1996 and it is valid till 11th June 2011.

3. According to the Appellant it introduced the abovementioned plastic bottle for marketing its hair oil in the year 2000. Prior to this Dabur Hair Oil was marketed in a glass bottle whose design was registered with the Controller of Patents and Designs in favour of the Appellant under Design Registration No. 160812 dated 14th March 1989. The Appellant states that it has incurred substantial expenditure on advertisement and promotion of the Dabur Amla Hair Oil. The figures given by it from 1995-96 till 2004-05 show that on publicity it incurred an expenditure of Rs.1232.21 lakhs in 2004-05. The Appellant claims that on account of prior adoption, long and continuous use, extensive advertising campaign and marketing network, enormous sales, the Appellant has acquired goodwill and reputation in the market and the product of the Appellant i.e. the Dabur Amla Hair Oil along with its packaging i.e. the bottle and cap described hereinabove have come to be identified and associated exclusively with the Appellants goods among consumers belonging both to rural and semi-urban areas and townships. The Appellant has placed on record annual sales figures of the Dabur Amla Hair Oil and Dabur Jasmine Hair Oil packed in the above bottles along with the caps.

4. Defendant No.1 in CS (OS) No. 314 of 2007 is Amit Jain (Respondent No.1 herein) and Defendant No.2 is M/s. V.N. Cosmetics (Respondent No.2 herein). In November 2005 the Appellant Plaintiff found Amit Jain, the sole proprietor of M/s. Vinayak Industries, Delhi to be engaging in the business of manufacturing and selling Plus Jasmine Hair Oil and Tushar Amla Hair Oil in bottles of same design and under label marks deceptively similar to the design of the Appellants bottles and labels. The Appellant filed Suit No. 1699 of 2005 against Amit Jain and Vinayak Industries by way of an infringement action. An application was also filed in the said Suit seeking an interim injunction. The said Suit was disposed of in terms of a compromise arrived at between the parties. The order dated 6th January 2006 by the learned Single Judge of this Court in CS (OS) No.1669 of 2005 records the fact that the parties had jointly filed an application under Order 23 Rule 3 CPC and a direction was issued to record the respective submissions of the parties. Among the terms of the compromise were the following admissions made and undertaking given by the Defendants including Amit Jain: 2. The Defendants admit the Plaintiff to be the proprietor

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