JUDGMENT :

Mukul Mudgal, J.

1. A chromatic monopoly in respect of red and white colours claimed by the plaintiff by virtue of the registration of its mark is the issue which arises in this application for interim relief which affects not only the large tooth paste market in India in particular but also the issue of exclusive rights to a particular colour scheme generally.

2. The plaintiff No. 1 Colgate Palmolive Co. Ltd. and plaintiff No. 2 Colgate-Palmolive (India) Limited have filed the present suit for permanent injunction restraining infringement of trade mark and copyright, passing off, unfair competition, damages, rendition of accounts against the defendant No. 1, Director of Ajanta India Limited, and defendant No. 2, Ajanta India Limited.

3. The plaintiffs have averred that they are an undoubted international market leader in the tooth paste trade and the plaintiff No. 2 is manufacturing and marketing Colgate toothpaste in India since 1937. The core issue enumerated above arises in view of the fact that the plaintiffs had always marketed their product with the red carton and the word COLGATE was inscribed on the said red carton in white colour and the other small print on the carton was also in white colour. The word COLGATE has been inscribed in a particular font. The mark of the plaintiffs is registered in India since 1954. It is not in dispute that the plaintiffs are not only the market leader internationally but are market leader in this country also. For ready reference the registered mark of the plaintiffs, along with the details of registration certificate is reproduced as under:

4. The gravamen of the grievance raised by the plaintiffs is that in order to encash the popularity and goodwill of the plaintiff's product achieved by dint of hard work and consistent excellence of its product over a prolonged period of time, the defendants have sought to market a product in a red carton with letters in white colour so as to imitate the plaintiff's product and its carton in order to unfairly ride on the bandwagon of success and fame of the plaintiff's product.

5. The averments of the plaintiffs are as follows:

(a) That they are the proprietors of the well-known trademark 'COLGATE' and the plaintiff No. 2 has been manufacturing and marketing dental products in India under the said trademark in the packaging bearing a distinctive get-up and colour scheme comprising a red background and its trademark 'COLGATE' in white. The registration of the plaintiff No. 1's trademark vide trademark registration No. 167064 in India is since 15th December, 1954 that of the mark registered vide trademark registration No. 319139 is in India since 1st October, 1976 and that of the label mark limited to colours red and white vide trademark registration No. 190279 is in India since 12th May, 1959.

(b) By virtue of priority in adoption, extensive and continuous use, promotion and publicity of the distinctive get up and red and white colour scheme in respect of their dental products, the said get up and the red and white colour scheme has attained immense reputation and goodwill and acquired a secondary significance as indicative of the trade origin of the plaintiff's dental products. The consumers instantaneously associate the said red and white colour scheme with the plaintiff's dental products and purchase these products often by referring only to the get up by which they are innately familiar. The get up and the colour scheme has acquired a prominent place in the personal toiletries of a large majority of Indian households.

(c) From time to time the plaintiffs have also amended the get up of cartons of Colgate dental cream so as to add a swirl or Pincer device and a touch of yellow in the left corner of the panels of the carton. However, the red and white colour combination has been retained in all such amended versions of the plaintiff's carton