Hon’ble Tarun Agarwala, J.—This is an appeal under Order 43 Rule 1(r) of the Code of Civil Procedure filed by the defendants against the order dated 31.5.2013 granting an injunction restraining the defendants-appellants from using the “green dot” on the label of the packaging of its product “Zincovit Syrup”.

2. The facts leading to the filing of the appeal is, that the plaintiff filed a suit for permanent injunction alleging that the plaintiff is a copyright and trademark owner of the product “Zincovit”, which is a food supplement. The plaintiff contended that the trademark “Zincovit” was originally used by the plaintiff’s father Sri K.V.Rana and his family members as far back in the year 1986 when they were running a business in the name and style of M/s. S.G. Agencies, which firm was involved in the business of manufacture and marketing of food products and the same is now being continued in the name and style of M/s. Hezen Pharmaceutical Ltd. It was contended that the defendant, M/s. Apex Laboratories Ltd., which is also a pharmaceutical Company approached the plaintiff in the year 2007 requesting them to manufacture and supply the food supplement to the defendants. An agreement dated 24.8.2007 was entered for a period of two years. The plaintiff contended that they made supplies worth Rs. 16 Lacs during the year 2007-08 and Rs. 2.20 Crores during the year 2008-09. The plaintiff, under this agreement, was manufacturing food supplement in the name of “Zincovit”. The defendants with mala fide intention and to cause wrongful loss to the plaintiff started making wrongful claims against the plaintiff alleging that the defendant was the owner of the trademark and copyright of “Zincovit” more particularly in the category of food supplements.

3. The plaintiff alleged that initially, the defendant stopped the payments as a result the plaintiff filed Original Suit No. 15 of 2009 in the Court of Senior Civil Judge, Medak District for recovery of dues and also sought an injunction against the defendant from lifting the stock and from interfering in the plaintiff’s business. It is alleged that an interim order was granted, but subsequently the same was not extended. It was also contended that the said dispute was with regard to the use of the trademark “Zincovit”. It was alleged that the defendants lodged an F.I.R. No. 74 of 2009 at Patna against the plaintiff and his Company and managed to get the distributor arrested. Another F.I.R. No. 41 of 2009 was filed before the R.C. Puram Police Station wherein the plaintiff’s brother was arrested and remanded to judicial custody. Various other F.I.Rs. were lodged by the defendants at various places in India. The plaintiff contended that he is the first user of the copyright of the artistic work “Zincovit” with fruits and device label and has been using it since 1986 whereas the defendant after cancelling the agreement started manufacturing the food supplement “Zincovit Syrup” surreptitiously violating the copyright of the plaintiff.

4. The plaintiff contended that the defendants had the trademark right of “Zincovit” for manufacture of pharmaceutical products whereas the plaintiff had the copyright of manufacture of food supplement of Zincovit. The plaintiff contended that the ingredients used in both the products are different and that in food products the ingredients used are nutraceutical whereas in the case of pharmaceutical products chemicals are used. The plaintiff contended that they had been consistently dealing with the food supplements and the marks and the artistic work on the label has unique characteristic and features, which shows the fruits, vegetables and the symbol “green dot” on its products referring to multi vitamin mineral supplement evolves a unique design and artistic work, which was being infringed by the defendants. The plaintiff submitted that he applied for registration of Zincovit with fruits and device label under the Copyright Act on 29.12.2009, which was