The main legal point established in the judgment is that where there is a probability of confusion in business, an injunction will be granted even if the defendants adopted the name innocently.

JUDGMENT :

D.K. Jain, J.

The plaintiff-companies have filed the present suit for permanent injunction restraining infringement of trade mark and copy right, passing off, damages, rendition of accounts etc., inter alia, praying for : a decree restraining the defendants, their servants, agents and representatives from manufacturing, selling and offering for sale, advertising, directly or indirectly, dealing in chocolates, sweets, confectionery or other related goods under the trade mark 'Horlioks' or under any other trade mark which is deceptively similar to the plaintiffs' trade mark 'Horlicks'; from producing, printing or publishing any label or packaging which is a colourable limitation or substantial reproduction of plaintiffs' 'Horlicks' packaging; delivery up of all the goods, dies, blocks, wrappers etc. bearing the impugned mark and labels ; rendition of accounts of profits earned by the defendants on account of misrepresentation of their goods under the impugned marks and for damages on account of use of impugned mark 'Horlioks'.

2. plaintiff No. 1, namely, M/s. Horlicks Limited are engaged in the business of manufacture of wide range of energy boosting food products, malted biscuits, toffees etc. and is the proprietor of the trade mark of 'Horlicks' in respect of the said goods. plaintiff No. 3, namely, M/s. SmithKline Beecham Consumer Healthcare Limited, manufactures and markets products under the trade mark 'Horlicks' in India with the express authorisation of plaintiff No. 2, namely, M/s. SmithKline Beecham Asia Pvt. Limited, who is the licensee of the said trade mark under license agreement dated 3 February 1997 executed in their favor by plaintiff No. 1. It is claimed that plaintiffs launched their business under the said trade mark in the year 1986 and have thereafter spent substantial amounts on the advertisement of the products under the said trade mark. As a result of extensive sales promotion and advertising campaigns carried out by them, the trade mark 'Horlicks' is an extremely well known brand in India and is singularly identifiable with the plaintiffs. It is claimed that the total marketing and promotional expenditure in respect of 'Horlicks' range of products since 1992 exceeds Rs. 50 crores. The stand of the plaintiffs is that by virtue of their prior adoption, user and registration of the trade mark 'Horlicks' and long continuous and extensive user thereof in India in respect of food products, their trade mark has attained a valuable goodwill and substantial reputation is attached thereto.

3. It is averred that in the month of August 1998, during the course of investigation commissioned by the plaintiffs against another party, the plaintiffs came to know that the defendants had adopted the trade mark 'Horlioks' and the Horlicks look like label for marketing their products. It is alleged that the defendants' wrappers with a trade mark 'Horlioks' are identical to the plaintiffs' trade mark 'Horlicks' and, Therefore, amounts to infringement of the registration in their favor. It is also pleaded that defendants' adoption of plaintiffs' distinct 'Horlicks' label also amounts to infringement of copy right of plaintiff No. 3. The plaintiff-companies have thus filed the present suit for injunction, passing off, infringement of copy right, etc.

4. The suit was registered on 27 October 1998. On the same day by an ex parte ad interim injunction the defendants were restrained from manufacturing and selling and offering for sale, advertising, directly or indirectly dealing in chocolates, confectionery or other related goods under the trade mark 'Horlioks' or any other mark deceptively similar to the plaintiffs' trade mark 'Horlicks'. A Local Commissioner was also appointed to prepare an inventory of the goods and to take into custody all infringing goods.

5. Summons/notice in the suit and the injunction application could not be served on the defendants by ordinary process and, Therefore, on plaintiffs moving an applicatio