Injunction can be granted on prima facie case.

(Original Side Appeals preferred against the common order dated 26.04.2005 made in Original Application Nos.904 and 905 of 2004 in C.S. No.862 of 2004, on the file of this Court.)

P. Sathasivam, J.

By consent of both parties, appeal themselves are taken for final disposal.

2. Aggrieved by the common order dated 26.04.2005 made in Original Application Nos.904 and 905 of 2004 in C.S.No.862 of 2004, dismissing both the said applications, M/s. Devi Pesticides Private Ltd., Madurai has filed the above appeals.

3. Plaintiff in C.S.No.862 of 2004 is the appellant in the above appeals. The plaintiff filed the said suit against the respondent/defendant, M/s. Shiv Agro Chemicals Industries, Baroda, Gujarat State for,

(a) Perpetual injunction restraining the defendant by himself/themselves, their men, servants, agents, distributors, stockiest, representatives, partners, directors or any of them from in any manner infringing the plaintiffs registered trademark BOOM PLUS by use of the trademark SUPER BOOM or any other mark similar to plaintiffs registered trademark;

(b) Perpetual injunction restraining the defendant by himself/themselves, their men, servants, agents, distributors, stockiest, representatives, partners directors or any of them from in any manner passing off and enabling others to pass off the defendants goods as and for the plaintiffs goods by use of the trademark SUPER BOOM or any other mark deceptively similar to the plaintiffs trademarks BOOM PLUS and BLOOM FLOWER-n in identical colour scheme, layout or in any other manner whatsoever; and for other reliefs.

4. Along with the plaint, the plaintiff also filed Original Application Nos.904 and 905 of 2004, praying for interim injunction restraining the respondent, their men, servants, agents, distributors, stockiest, representatives, partners, directors or any of them from in any manner infringing the applicants registered trademark BOOM PLUS by use of the trademark SUPER BOOM or any other mark similar to applicants registered trademark and also for interim injunction restraining the respondent, their men, servants, agents, distributors, stockiest, representatives, partners, directors or any of them from in any manner passing off and enabling others to pass off the respondents goods and for the applicants goods by use of the trademark SUPER BOOM or any other mark deceptively similar to the applicants trademark BOOM PLUS and BOOM FLOWER-n in identical colour scheme, layout or in any other manner whatsoever.

5. The case of the appellant is briefly stated hereunder:

According to the plaintiff, they are manufacturers of fertilizers and flowering stimulants and are in business since 1985 and started manufacture and trade under the Trademark BOOM PLUS since 1987 and the said Trademark has also been registered in class 1 under Trademark No.473179 on 05.06.1987. The trademark is being renewed periodically. In addition to this trademark, there are other 4 trademarks, which are also registered, and all of them have been considered and associate trademarks of BOOM PLUS. They have been marking the goods and spending huge sum on advertisements and the consumers come to identify the products of BOOM from their house. Their sales are substantial, viz., 100 lakhs per year. During July, 2004, it is come to their knowledge, the respondent has been marking fertilizers and flowering stimulants under the trademark SUPER BOOM and immediately caused a legal notice on 23.07.2004 and again on 07.09.2004. The respondent had filed a suit under Section 142 of Trademarks Act, 1999 before the District Court, Vadodara, Gujarat and the same is pending and there is no interim order. The products are pesticides, fertilizers and other agents the channel of marking is also the same and the needy consumers are illiterate agriculturists who would not be able to distinguish between the marks BOOM PLUS, BOOM FLOWER-n and SUPER BOOM one would always believe that the same would originate from the same source. Th