The main legal point established in the judgment is that the use of marks identical to a registered trademark constitutes infringement, and the essential features of the marks are considered in determining likelihood of confusion or deception.

Jayant Nath, J.

1. The present application is filed by the plaintiff seeking an interim injunction to restrain the defendants no. 1 to 3 in any manner using the mark/expression “ALL-AROUND PROTECTION”/“ALLROUNDER” either as a trade mark, trading style or in any other manner especially in relation to toothpaste. Other reliefs are also sought.

2. The accompanying plaint is filed by the plaintiff seeking a relief of permanent injunction and other connected reliefs in relation to its registered trademark “ALLROUND” or the mark/expression “ALLROUND PROTECTION”. As per the averments in the plaint for the trademark “ALLROUND” the plaintiff applied for registration on 2nd September 2005 and the registration was granted on 26th August 2008. It is urged that the said trademark has been used by the plaintiff extensively thereafter. The said mark is a well known mark and extensively associated with the plaintiff and its activities. The plaintiff avers to have used the mark “Anchor ALL ROUND PROTECTION” extensively with huge publicity in international print and electronic media. The annual sales turn-over of the plaintiff for the years 2006-12 is said to be above `300 crores. It is further urged that the plaintiff has been extremely vigilant and zealously protecting its intellectual property rights for its registered mark “ALLROUND” and the expression „ALLROUND PROTECTION”. Reference is made to Suit no. 1579/2007 filed by the plaintiff titled Anchor Health and Beauty Care Pvt. Ltd. vs. V.Kaushik & Ors. which is related to use of the registered mark of the plaintiff by another toothpaste company being Colgate Palmolive India Limited who was using the expression “ALL-AROUND DECAY PROTECTION”. The defendant in that suit during pendency of the hearing of the injunction application had changed the mark and expression and accordingly this Court on 25.04.2013 disposed of the injunction application.

3. It is urged that sometimes in the end of May 2013 the plaintiff came across news reports that the defendants were planning to enter into the toothpaste market. In the first week of July the plaintiff is learnt to have been shocked to know that defendants have on July 02, 2013 launched its product under the mark ORAL-B “ALL-AROUND PROTECTION”. It is urged that the said mark “ALL-AROUND PROTECTION” is a complete imitation of the plaintiff’s registered mark “ALL ROUND” and the use of the same with respect to identical products constitutes infringement of the registered trademark of the plaintiff and passing off. It is urged that the entire purpose is to ride piggyback upon the enormous reputation which the trade mark “ALLROUND” and mark “ALLROUND PROTECTION” of the plaintiff has earned due to extensive advertising. On July 14, 2013 the plaintiff further learnt from an advertisement that the defendants have launched another product by the name of “ORAL-B ALL ROUNDER”. It is urged that the use of the mark “ALL ROUNDER” is also in complete violation of the plaintiff’s rights of its registered trademark “ALLROUND”. Reference is made to certain orders passed by the United States Food & Drug Administration Department (FDA), the Department which due to death of 51 people in 2007 had banned import of toothpastes manufactured in China. It is urged that this restriction still continues and that the toothpaste of the defendant is imported from China.

4. The defendants have filed their written statement. It is urged by the defendants that the present Suit is liable to be dismissed as it is structured on an inherently invalid trademark, being a completely descriptive expression incapable of having characteristics of a trademark. The expression “ALLROUND” has invariably been used by the plaintiff in conjunction with the word ‘PROTECTION’in relation to toothpaste and is thus devoid of any distinctive character. Being descriptive, it is not capable of distinguishing the goods of one person from those of another person. Further, it is submitted that the expr