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(C) The learned trial Court has recorded the contentions of defendant from para 58 to 60, which is the main subject matter about using of similar colour on the packaging. Somehow, there is no finding recorded qua those important contentions raised in the above paragraphs and it remained unanswered.
(D) The finding was recorded in para-82 to the effect that, "This Court is of the prima facie opinion that plaintiffs have clearly established the essential ingredients namely, prior use, establishment of goodwill and reputation and chance of future loss by virtue of the use of such deceptively similar trade name or device and therefore, plaintiffs have prima facie case in their favour". It is an admitted fact that the trade name of both the parties are not deceptively similar and distinctly different i.e. WAGH BAKRI AND VIMAL. Looking to the above findings, it is clear that what is considered is beyond the pleadings of parties. Therefore, it shows non-application of mind at the ends of entire discussion in the judgment.

33. It is further submitted that the learned Trial Court has recorded in the judgment that the Respondents / Original Plaintiffs have fairly admitted that they do not have any objection if the Appellant / Original Defendant uses the word VIMAL without pilfering the prominent features like colour scheme, get-up and arrangement of the registered label of the Plaintiff. It is further recorded in the finding that both the trade names are deceptively similar and therefore, plaintiffs are having prima facie case. Therefore, apparently the finding recorded by the learned trial court is ex-facie contradictorily, against the pleadings as well as against the evidence on record.

61. Learned Senior Advocate Shri Kamal Trivedi has submitted that the Respondent - Plaintiff is in the Tea business since 1892 and has been a prior user of aforesaid trademarks and copyright, as compared to that of Appellant - Defendant, who is yet to enter in the Tea business and that, the Respondent - Plaintiff has an annual turnover of about Rs.1200 cr. He has further submitted that the Appellant - Defendant has not yet started its commercial business in Tea, and while denying the distinctiveness involved in the registered trademarks and copyright of the Respondent - Plaintiff, Appellant - Defendant itself has sought to apply for registration for deceptive similar device mark, while claiming distinctiveness in its copied version of colour scheme, get up, placement of cup and saucer, leaves, etc. and thus, Appellant - Defendant has made substantial and material reproduction of Respondent - Plaintiff's labels, which are registered trademarks and copyright by copying (a) Saffron colour scheme (b) Get up and arrangement, (c) Placement of cup and saucer along with the device of leaf, and (d) the artwork prepared in the oblong containing the word 'WAGHBAKRI' in red colour. It is submitted that this can very well be appreciated by comparing Respondent's - Plaintiff's label vis-à-vis Appellant - Defendant's label, copies whereof are produced at Exh.1 (Colly.), which are otherwise at pgs. 34 and 38 in the Respondent's Affidavit-in-Reply in CA (being equivalent to pgs.147 and 148 of the PB). He has further submitted that no reason is coming forth as to why the Appellant - Defendant has chosen the said label for its VIMAL product, which is, as aforesaid, substantial and material reproduction of the label of Respondent - Plaintiff. Learned Senior Advocate Shri Kamal Trivedi has therefore submitted that the Respondent - Plaintiff has made out a prima facie case on merit about copying the essential ingredients of its device mark by the Appellant - Defendant, coupled with Respondent's established goodwill, reputation and prior use, followed by balance of convenience and likelihood of causing irreparable injury, being in favour of the Respondent - Plaintiff. Therefore, Respondent - Plaintiff was rightly issued an injunction order.

127. Learned Advocate Mr. Shah has also drawn the attention of this Court that the trade name of both the parties are not deceptively and distinctively similar i.e. "WAGH BAKRI" and "VIMAL" but in view of this Court, finding is given by the learned Trial Court that the Court is of the prima facie opinion that the Plaintiffs have clearly established the essential of goodwill and reputation and chance of future loss by virtue of the use of such deceptively similar trade name or device and therefore, the Plaintiffs have prima facie case in their favour, therefore, merely having two different "TRADE NAME" does not make strong defence of original defendant.