( 1 ) BEING aggrieved by an order dated 6-4-1999 passed below the Notice of Motion in Civil Suit No. 854 of 1999, the appellant-original defendant No. 1 has approached this Court by way of this appeal from order. For the sake of convenience, the parties to the litigation have been referred to as they have been arrayed before the trappeal dismissed. ial Court. The appellant, defendant no. 1, has been aggrieved by the impugned order because, by virtue of the impugned order, during pendency of the suit, defendant No. 1 has been restrained from using mark vicas or any other mark, which is likely to infringe trade mark "vicks" which is being used by the plaintiffs. Moreover, defendant No. 1 has also been restrained from manufacturing, selling or offering for sale, medicinal preparation and allied products using trade mark vicas or any other trade mark which might be deceptively similar to trade mark v1cks of the plaintiffs.

( 2 ) THE tacts giving rise to the litigation, as stated by the plaintiffs in their plaint, in a nutshell, are as under :- plaintiff No. 1 is a corporation incorporated under the laws of the United states of America and the said plaintiff and its subsidiary companies are engaged in the business of manufacturing and marketing various medicinal products which are manufactured and sold under the trade mark vicks and plaintiff No. 1 is a proprietor of the said trade mark in India. So far as plaintiff No. 2 is concerned, it is a subsidiary company of plaintiff no. 1, which has been incorporated under the provisions of the Companies act, 1956 in India and it is also engaged in the business of manufacturing and marketing of medicinal products under the trade mark vicks. It is their case that plaintiff No. 2 is the originator and owner of copyright of artistic work and get up contained in label having dark and light green colour wherein the mark vicks has been written in a novel manner and cough drops manufactured by the plaintiffs are being sold under the name of VICKS. Plaintiff No. 1 is using the mark vicks for last about 100 years in respect of the medicinal preparations prepared by it and plaintiff No. 2, which is the subsidiary company of plaintiff No. 1, is manufacturing the medicinal preparations including cough drops under the trade mark vicks in India since 1971. Trade mark vicks has been registered under the provisions of the Trade and Merchandise Mark Act, 1958 (hereinafter referred to as the trade Mark Act ). The said mark has been registered at Regn. No. 328355 in Class V in respect of pharmaceutical, sanitary substances, infant foods, etc. It is the case of the plaintiffs that by use of the colour scheme adopted by them for the purpose of selling cough drops manufactured by them under the trade mark vicks, they have tried to distinguish their product from the products which are being manufactured by other manufacturers. the label used by the plaintiffs for the purpose of sale of cough drops under trade mark vicks has been annexed to the plaint as Exh. 2/6. It has been submitted by the plaintiffs that their product vicks has got a very good reputation in the Indian market because of the superior quality of medicinal ingredients used by them in the cough drops manufactured by them. It has been also submitted by them that for the purpose of popularising their product in the market, they had been spending enormous amount on advertisements. It is their case that the product is being advertised throughout india including Gujarat, through the media like Doordarshan, Zee TV, Zee cinema, Star Plus, Star Movies and other local media which are being used for advertising different products. The plaintiffs have also submitted that they had spent approximately Rs. 23 crores during 1993-98 for advertising their products vicks and as a result thereof, sale of their vicks products had increased from Rs. 45 crores per annum to Rs. 66 crores per annum from 1993-94 to 1997-98. Thus, they have mainly submitted