1. The plaintiff has filed a suit for permanent injunction restraining infringement of copyright, trade mark, rendition of accounts, damages and delivery up etc.

2. By this order, I shall dispose of the two applications being IA No.10720/2008 under Order XXXIX Rule 1 and 2 CPC filed by the plaintiff and IA No.11669/2008 under Order XXXIX Rule 4 CPC read with Section 151 CPC filed by the defendant for vacation of ex parte ad interim order dated 5th September, 2008.

3. The brief facts, as per the plaint, are that the plaintiff is engaged in the business of research, production, marketing, and export of various pharmaceutical and medicinal products and preparations to various countries outside India and has been engaged in the present business for last several years.

4. The plaintiff has alleged that on 8th February, 2002 the plaintiff filed an application for registration of the trade name „Vega Asia? which is duly registered trade mark under No.1079405 in class 5 in respect of pharmaceutical and medicinal preparations included in class 5. It is also alleged that the plaintiff holds valid and subsisting drug licence issued by the Drug Licensing and Controlling Authority of the State of Uttar Pradesh for manufacture and sale of its products „Vega Asia? vide protection granted on 30th July, 2002. The plaintiff has contended that the mark „Vega Asia? is a fanciful and coined word being combination of the words „Vega? and „Asia? that was especially created by the plaintiff having no descriptive meaning. The mark „Vega Asia? including its VEGA prefix separately, is inherently distinctive both to the trademark and the consuming public of erectile dysfunction products of the plaintiff company. The plaintiff has also designed, and created various artistic works for the packaging(s) of the said medicinal product „hereinafter Blister Packaging? and has also got the same registered under the Copyright Act, 1957. The said protected artistic works in the packaging as copyright is again the proprietary right of the plaintiff under the Copyright Act, 1957 and the Common Law.

5. The plaintiff for the aforesaid registered trademark „Vega Asia? has also created and adopted another packaging which is being specifically and regularly used by the plaintiff for the instant product. The plaintiff in order to protect the same from being misused had also filed two separate applications for the registration of the said artistic work in the copyright before the Copyright Office on 11/05/2004 under the titles „Vega? and „Vega 100?. The aforesaid copyright of the plaintiff for its products have been registered by the copyright office on 02.05.2005 vide registration nos. A – 72140/2005 and A – 72146/2005, hereinafter referred as „Rocket Packaging? and „Blue Packaging? respectively.

6. The further contention of the plaintiff is that the trade mark „Vega Asia? has become popular and has been accepted by the international community. The defendant company along with its officers, agents and buyers in order to enjoy much laboured efforts of the plaintiff has started misusing the intellectual property of the plaintiff in the aforesaid registered copyright and trade mark by production and export of the same either by identical with or deceptively similar packaging or with the combination of both of them and exploiting the same. It is also alleged that the defendant has copied the artistic work/copyright contained in the „Blister Packaging? of the plaintiff, both „Rocket Packaging? and „Blue Packaging? bearing the titles „Vega? and „Vega 100? and has been exporting the same to various countries out of India and more particularly to the countries of the Middle East. The plaintiff has also given the comparison chart and details of the packaging in Paras 18 to 20 of the plaint.

DEFENDANT’S CASE

7. The defendant has opposed the interim application filed by the plaintiff on various grounds which are mentioned in the written statement, reply to the inju