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6. In order to demonstrate the dishonest intention of the defendants in appropriating or adopting prominently similar trade dress in terms of layout, get up and colour combination with obvious intention to encash upon the reputation and goodwill of the plaintiffs, the plaintiffs have referred to the past history of the defendants in keeping track of the plaintiffs products in the market by way of illustrative instances of comparative charts of various products having substantial reproduction of the colour combination of the colour red and white not only in respect of packaging but also otherwise. It all began some time in the year 1996 and the first action taken by the plaintiffs in this regard was in a suit filed in 1996 before the Bombay High Court. However the plaintiff did not succeed in getting ad interim injunction from adopting the same colour scheme and layout mainly for the reason that the trademarks used by the parties were not the same. This action arose from the cartons of dental cream. Though the Appeal against the said order of learned Single Judge of the Bombay High Court has been admitted and pending disposal but no interim relief has been granted.

17. Another judgment relied upon by Mr. Anand is M/s. Amrit Banaspati Co. Ltd v. M/s Suraj Industries Ltd 1996 PTC (16) wherein following view was taken:-

"Normally in an action for passing off the relief of injunction is not to be granted at the interim stage because still there has to be a trial but again in exceptional cases such an interim relief can definitely be made available to the aggrieved party in case prima facie it is established on record that the two products are so similar in appearance that there was absolutely no way of avoiding the grant of interim injunction."

20. Aforesaid order was passed when ex parte ad interim injunction was sought. However the application for interim injunction was decided on merits with the following observations:-

"The plaintiffs filed a suit for infringement of trade mark. By the instant Notice of Motion, plaintiffs is seeking injunction against the defendants from using label mark. Learned counsel for the plaintiffs urged that the colour scheme(colour combination) red and white, is a part of registered trade mark. The defendants for their product of dental cream using the similar colour combination to mis-guide the customers and thus it has caused prejudice to the marketing of the Colgate dental cream.

50. As regards the previous proceedings between the parties in Mumbai and the injunction refused by the Mumbai High Court Mr. Sibal has contended that the previous proceedings have no relevance as these related to "tooth paste" while the present proceedings relate to "tooth powder"which has not only a distinctive container but distinctive colour combination and get up on the container.

51. I have accorded my careful and cautious consideration to the rival contentions for the purpose of ad interim injunction and have come to the following conclusions:-