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5. The case of the plaintiff is that the plaintiff is carrying on the business of manufacturing and marketing cosmetics and body care products and uses the trade name/trademark LAVERA in the course of its business. The plaintiff adopted the trademark LAVERA in early 1980 which is an arbitrary mark in connection with cosmetic products. The trademark LAVERA was used for the first time in Germany in 1982. Since then the mark LAVERA has been extensively used in many countries worldwide. In Latin, LAVERA means "the truth". The aforesaid mark, LAVERA is inherently distinctive of the goods of the plaintiff. The plaintiff was the first to use the mark LAVERA in relation to cosmetics and other body care products. The mark is exclusively associated with the business and products of the plaintiff.

27. It is alleged that the defendants being in the same industry ought to have actual knowledge of LAVERA products, the quality for which is known by consumers globally. The plaintiff will also like to bring to the Court's attention the fact that the defendants have not only copied their brand name LAVERA but also the trademark MAC of Makeup Art Cosmetics Inc. It is stated that the defendants are habitual infringers of international brand names and have deliberately copied plaintiff's internationally well reputed trademark LAVERA with the intention to pass off their products as that of the plaintiff's products. The mark LAVERA is completely arbitrary when used in relation to cosmetics. It is stated that it was copied and popularised by the plaintiff in relation to cosmetics.

The ratio of the aforesaid decisions is squarely applicable to the facts of the present case. Thus, injunction cannot be refused on account of delay as the plaintiff has made a strong prima facie case of passing off.

58. Prima facie it appears to the Court that the plaintiff adopted the trademark LAVERA which is a completely arbitrary mark/word when used in connection with cosmetic products prior to use of the mark by the defendants. It is averred that the trademark LAVERA was used for the first time in Germany in 1982 and the same has been used in many countries worldwide. Thus, prima facie it appears to the Court that the plaintiff is the first to use the mark LAVERA in relation to many kinds of cosmetics and other body care products.

59. For the aforesaid reasons mentioned above, it is evident that the defendants are not the proprietor of the trademark LAVERA which is an unusual, uncommon and arbitrary mark. The defendants have failed to give any valid justification for using the mark except vague reply is given. At the time of adoption of the mark, the defendants must be aware about the mark of the plaintiff. Therefore, the adoption and use on the part of the defendants is not honest. The balance of convenience lies in favour of the plaintiff and against the defendants even otherwise is under injunction last since 28th September, 2012. On the other hand, if the interim order already granted is vacated, the plaintiff would suffer irreparable loss and injury. The sale of cosmetic products by the plaintiff on internet is valid sale and it amounts to use of a mark. The defendants' argument about the non-user of the mark is without substance. The compliance of Order 39 Rule 3 CPC has been made by the plaintiff as per record available. The plaintiff has filed an affidavit of compliance as per time granted by this Court.