The delay in challenging infringement and lack of interconnectivity between the products sold by the plaintiff and the defendants warranted the vacation of the injunction, emphasizing the need for a full-fledged trial to decide on damages, jurisdiction, and passing off.

S. Vaidyanathan, J.

(Prayer: For Permanent Injunction restraining the defendant by itself its agents, servants or any one claiming through it from in any manner infringing the plaintiffs trade marks AROKYA by using the trademark.

To grant an order of interim injunction restraining the Respondents/Defendants by themselves, their agents, servants or anyone claiming through them from in any manner infringing the Applicant/Plaintiff Trade Mark AROKYA or any other mark or marks which are in any way identical or deceptively similar to the Applicant/Pliantiff registered trade mark AROKYA as described in the Schedule to the plaint pending dispsoal of the instant suit.)

To grant an order of interim injunction restraining the Respondents/Defendants by itself, its servants or agents or anyone claiming through it from in any manner passing off its products as that of the Applicant/Plaintiff by using the offending trademark AAROGYA which are similar, deceptively similar and identical to the Applicant/Plaintiffs trade mark AROYKA or by using any other trademark which is similar, deceptively similar or identical to that of the Applicant/Plaintiffs trademark AROKYA by manufacturing or selling or offering for sale or in any manner advertising the same pending disposal of the suit.)

The Applicants, who are the Defendants in the suit have come forward with these Applications, seeking to vacate the order of interim injunction dated 28.02.2019 passed in O.A.Nos.33 and 34 of 2019 in C.S.No.33 of 2019.

2. On 28.02.2019, this Court had granted an order of interim injunction against the Defendants, pursuant to non-appearance of the Defendants in spite of issuance of private notice on them. Subsequently, the Applicants took out these Applications for vacating the interim order dated 28.02.2019 and upon consideration of the submissions made on either side, this Court, by an interim order dated 20.03.2019, directed the order dated 28.02.2019 to be kept in abeyance for a period of two weeks.

3. The main argument advanced by the learned counsel appearing for the Applicants/Defendants is that though the word 'Aarogya' is deceptively similar, the Defendants have been using the said Trademark “Patanjali Aarogya” for quite a number of years, as the same was registered as early as in 2016 itself. It was his further argument that there is no likelihood of damaging the goodwill and reputation of the Plaintiff, as the Mark “Patanjali Aarogya” is named for selling a multi grain biscuit, whereas the Respondent/Plaintiff has been using the mark AROKYA for manufacturing milk and Dairy based products and therefore, it cannot be said that the Applicants/Defendants are the competitors of the products of the Respondent/Plaintiff. In support of his submission, the learned counsel appearing for the Applicants/Defendants drew the attention of this Court to the Application No.2036717 submitted by them, in which the details of goods and service described under Class:30 are Coffee, Tea, Cocoa, Sugar, Rice, etc., whereas in the Application No.3375847 submitted by the Respondent/Plaintiff, the details of goods and service indicated under Class:29 are preserved, dried, frozen and cooked fruits, eggs, milk and milk products, etc., and therefore, there is no connectivity in sale of both products and such sale will not definitely affect the market of each other's product.

4. It was submitted by the learned counsel for the Applicants / Defendants that the word 'PATANJALI' is a device mark and as per the settled proposition, the mark has to be taken as a whole and together and cannot be seen in a divided form and in an isolated manner. Even a bare look at both the Trademarks will prove the fact that there is a difference in spelling and pronunciation. It was further submitted that the Applicants / Defendants have been dealing with the products under the very same Trademark for more than eight years and the Respondent/Plaintiff was aware of such factum in the year 2016. Despite that,