The judgment establishes the principle that common language words or names used as trade marks must have acquired secondary significance for exclusive appropriation, and obtaining ex parte injunction by misrepresentation of facts justifies vacating the injunction.

( 1 ) BY this order I propose to dispose of I. A. No. 6268/2001 (Order 39 Rules 1 and 2. Civil Procedure Code) filed by the plaintiff and I. A. 5461/2001 (O. 39 R. 4 Civil Procedure Code) filed by the defendant.

( 2 ) BRIEFLY stated the facts leading to these applications are as follows:- plaintiff Mr. Vijay Kumar Ahuja has filed this suit against his brother s wife Mrs. Lalita Ahuja seeking ad interim injunction restraining her from dealing in luggage,items and other allied, and cognate goods under the trade mark, MISTER, DEFENCE, ARUN and ML or any other identical and/or deceptively similar mark thereby amounting to passing off the defendant s goods for those of the plaintiff and also from infringement of copyright it is alleged in the plaint that plaintiff is carrying on business of manufacturing and marketing of various kinds of luggage items Under the name and style of Vijoy industries. The plaintiff. has been using its trade marks namely MINISTER, DEFENCE, ARJUN AND ML in respect of different types of luggage items. It is pleaded that, the said trade marks were originally adopted by the plaintiff in the year 1992 in respect of those goods and that the plaintiff has been using them on their products since 1/4/1992. Plaintiff has also applied for registration of trade marks MINISTER, ARJUN AND DEFENCE. The application for registration of the trade mark MINISTER and ARJUN also consist of ML in a particular style.

( 3 ) APPLICATION for trade mark MINISTER with ML has been accepted and has been duly advertised in the Trade Mark journal No. 1199 dated. 1/5/1999 and there is no opposition by any one. Similarly the other label of the plaintiff consisting of the trade mark MINISTER and ARJUN has been advertised in the Trade Marks Journal No. 1224 (S) dated 8/6/2000. Besides one more application for registration of trade mark DEFENCE and ML has been accepted for registration and is likely to be advertised in the Trade. Marks Journal. It is contended that by virtue of adoption and use of these marks by the plaintiff, the plaintiff has; exclusive right to use the said trade marks MINISTER, ARJUN, DEFENCE and ML in respect of luggage items; namely suite case, etc Besides- the plaintiff has given wide publicity in respect of these trade marks. It is alleged that on 15/6/2000 the plaintiff came across some brief cases in the marker which were being sold under the trade marks MISTER, DEFENCE and arun. Besides the trade mark ML is also mentioned on the label. On further enquiry from the market, the plaintiff came to know that the defendant had been using the trade marks MISTER, DEFENCE, ARUN and ML on similar items. It is further alleged that these trade marks namely MISTER, defence, ARUN and ML are similar and/or deceptively similar to the trade marks of the plaintiff and thereby the defendant is passing off their goods as those of the plaintiff. Besides the defendant is also infringing the copyright of the plaintiff in the artistic work under the said trade marks. It is further, pleaded that goods manufactured by the defendant are of infenror quality affecting the goodwill and reputation of the plaintiff in the market. There are other litigations pending between the plaintiff and husband of the defendant who are the real brothers.

( 4 ) ALONGWITH the plaint, plaintiff also filed An application being IA No, 6268/2000 under Order 39 Rules 1 and 2 Civil Procedure Code and vide order dated 27/6/2000 this, Court issued an ex-parte ad interim injuction restraining the defendant, her dealers, agents, servants and all other person acting on her behalf from manufacturing, selling offering for sale, advertising, directly or indirectly dealing in luggage items or other allied or cognate gods under the trade mark MISTED, DEFENCE, ARUN and ML or any other identical or deceptively similar trade mark. Defendant has now filed an application being IA No. 5461/2000 under Order 39 Rule 4 Civil Procedure Code for vacating the ex parte stay