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(ii) of the application for ad interim injunction was granted.

Reference to the relief claimed by the appellants and the findings reached by the Supreme Court shall be made later in the judgment.

Immediately after institution of the Gurgaon suit, the appellants had instituted Civil Suit No.138 of 2003 in this Court on 8.5.03 against the respondents. In such suit, relief claimed is as follows:

"a. A perpetual injunction restraining the Defendant, its successors, assigns, representatives, dealers and servants from using the trade mark GLUCOSE- D or any other trade mark deceptively similar to the registered trade mark GLUCON-D; and b. Perpetual injunction restraining the defendant, its successors, assigns, representatives, dealers and servants from using the trade dress/packaging deceptively similar and/or reminiscent of the Plaintiff's trade dress/packaging used with relation to goods sold under the trade mark GLUCON-D; and c. Perpetual injunction restraining the defendant, its successors, assigns, representatives, dealers and servants from using the packet design which is a copy of the Plantiff's package design for the goods sold under the trade mark GLUCON-D and or any other packet design which is an infringement of the Plaintiff's copyright in the artistic work; and d. Perpetual injunction restraining the defendant, its successors, assigns, representatives, dealers and servants from passing of his goods as and for the goods of the plantiff; and e. Enquiry into loss and damage suffered by the plaintiff's and decree for the amounts found due to the plaintiffs;
f. Rendition of true and proper account of the profit to be rendered by the defendant by the use of the trade mark GLUCOSE-D and the deceptively similar packaging on the goods being manufactured and marketed by them and a decree be passed in favour of the Plaintiff for the amount thus found due; and g. Mandatory injunction restraining the defendant, their representative, agents and servants and assigns to deliver upoto the Plaintiff on affidavit all sales promotion literature, stationery, printing blocks and any goods bearing the trade mark GLUCOSE-D or any other word deceptively and/or confusingly similar to; and h. Such other further relief as this Hon'ble Court may deem fit and proper in the circumstances of the case; and i. Attachment; and j. Receiver; and k. Costs l. Further or other reliefs."

Aggrieved by non-grant of order of injunction restraining the respondents' use of the new packet, the appellants have filed the present interlocutory appeal.

The appellants' claim, as it appears from G.A. 2430 of 2007, is that the trade mark 'Glucon-D' was assigned to the first appellant by Glaxo India Limited along with the goodwill of the business in which the mark was used and its rights in the artistic work used on the packaging of the said trade mark, by a deed of assignment dated 30th September, 1994. Glaxo India Limited had been selling goods with the trade mark 'Glucon-D' since 1940. Energy drinks are being marketed by the second appellant under the trade mark 'Glucon-D' since its incorporation in 1994 and are sold in three variants or three different flavours, viz. Regular, Tangy Orange and Lemony Lime. The conflict between the parties is based upon the similarity of the packaging of the energy drinks 'Glucon-D (Regular)' of the appellants and 'Glucose-D' of the respondents. The appellants' packaging of 'Glucon-D (Regular)' consists of a distinctive colour scheme, predominantly of the colour green, with the photograph of a family of three (father, mother and son) apparently drinking glucose superimposed with the mark 'Glucon-D' as an essential feature of such packaging whereas the packaging used by the first respondent for marketing and selling its energy drink 'Glucose-D', it is alleged by the appellants, is deceptively similar to their packaging. According to the appellants, the first respondent has been making small changes in its packaging from time to time in order to deceive innocent purchasers by trying to pass off their goods as the goods of the appellants and from January, 2003 till date, has changed the packaging a number of times. The subject matter of complaint in the Gurgaon suit was the green packet marketed by the first respondent deceptively similar to the colour scheme of the appellants with the photograph of a happy family (father, mother and children - daughter and son) superimposed on it along with the mark 'Glucose-D'. Inquiries conducted at the behest of the appellants revealed that the first respondent had changed the packaging of its energy drink and had introduced a new packaging which was deceptively even more similar to the appellants' packaging. On the new packaging, with predominantly green as the background, the picture of a family of three (father, mother and son) playing football was superimposed with the mark 'Glucose-D' and such packets were being sold within the jurisdiction of this Court. This packaging of the respondents was marked Annexure 'H' to the application, referred to in prayer clauses (b) and (c) thereof. Based on their understanding of the order of the Supreme Court, the appellants contended in the application that the first respondent is now restrained from using the word 'Glucose-D' as a trade mark and also any packaging deceptively similar to the packaging of 'Glucon-D' on the premise that the Supreme Court has granted them relief under Order XXXIX Rules 1 and 2 of the Civil Procedure Code in respect of the trade dress of the Gurgaon pack which implies that the order covers the word 'Glucose-D' and hence is prohibited in any form. Despite the order of the Supreme Court, the first respondent has been continuing to violate the exclusive rights of the petitioner in the trade mark 'Glucon-D' by using the trade mark 'Glucose-D' and a packaging which is deceptively similar to the appellants' packaging of the goods sold under the trade mark 'Glucon-D'.

" a. The Defendant, its successor, assigns, representatives, dealers and servants be restrained by an interim injunction from using the trade mark GLUCOSE-D or any other trade mark deceptively similar to the registered trade mark GLUCON-D. b. The Defendant, its successor, assigns, representatives, dealers and servants be restrained by an interim injunction from using the trade dress/packaging deceptively similar and/or reminiscent of the Plaintiff's trade dress/packaging used with relation to goods sold under the trade mark GLUCON-D."