(R. Subbiah, J.)

This judgment shall govern all these three appeals in O.S.A.Nos.223 to 225 of 2009 since all the appeals have arisen out of a common order passed by the learned single Judge of this Court in dismissing the applications filed by the appellant herein.

2. All the applications came to be filed under the following facts and circumstances:

The dispute involved in all these appeals is pertaining to the use of a registered trade mark, namely, Lacto of the appellant/plaintiff. The appellant, a well established and highly reputed confectionery company, is a leading manufacturer of confectionery products, such as sugar boiled confectionery including toffees and they involved in the said business since 1952. In the year 1958, the appellant conceived and adopted a distinctive trade mark Lacto Bon Bon when they introduced a premium confectionery/sugar boiled confectionery with condensed milk as one of the ingredients. They have been using the said trade mark for the past five decades continuously and without any interruption. They have applied for almost 34 trade marks with Lacto either as prefix or suffix, such as Lacto Bon Bon, Lacto Novelties, Nu Laco, Maha Lacto, Maha Maha Lacto, Super Maha Lacto, etc., and the trade mark Lacto has thus become highly distinctive of the products of the appellant by virtue of long extensive and continuous uninterrupted use since 1958 in respect of various confectionery products manufactured and marketed by them. The children, who are the major consumers of the toffees, always associate the trade mark Lacto only with that of the appellants trade mark. The toffees manufacturing by the appellant company with the trade mark Lacto are more popular in urban, sub-urban and in every remote corner of any village all over India. The sugar boiled toffee marketed under the trade mark Maha Lacto is the most sought after product among the other products of the appellant and is continuously marketed without any interruption since 1990. The appellant company is spending huge amounts for advertising the products under the trade mark Lacto and by which, the products under the trade mark Lacto, particularly Maha Lacto has become highly popular.

3. While the situation stood thus, the respondents have introduced a sugar boiled confectionery in July, 2008 under the identical trade mark Lacto under the name of "Candyman Lacto Crème Centre", which is not only introduced with the trade mark similar to that of the appellant but also with identical twist wrap pack and in identical or deceptively similar pet jars to that of the appellant. Originally, the respondents introduced sugar boiled confectionery modified toffees with similar ingredients under the trade mark Licks, but they could not reach the sales as expected and so the respondents deliberately chose the appellants trade mark only to mislead the public to purchase the products of the respondents believing it to be the another product of the appellant. Since the respondents have infringed the appellants registered trade mark Lacto they are guilty of passing off their products as that of the appellant. Under such circumstances, the appellant herein filed a suit for permanent injunction restraining the defendants from infringing the appellants trademark Lacto and passing off their goods as that of the plaintiff and also for other reliefs.

4. Pending suit, the appellant has also filed applications in O.A.No.914 and 915 of 2008 for temporary injunction, one for restraining the respondents from in any manner passing off their goods as that of the appellant by using the offending trade mark Lacto and another for restraining the respondents from in any manner infringing the appellants trade mark Lacto and also filed another application, namely, A.No.1230 of 2009 seeking to pass a decree in the suit in prayer a and b in para 16 of the plaint.

5. The said applications were resisted by the respondents mainly on the ground that the word Lacto is a common,