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(vi) Even if there is finality to registration of a trade mark, yet the defendant in infringement action can take statutory defences under Sections 30 to 35 to defeat the infringement action."

15. Reference may also be made to the judgment of the Division Bench in Stockely Van Camp, Inc. (supra), which was heard together with the Marico (supra) case by the same Division Bench, however, a separate judgment in respect thereof was delivered by the Division Bench on 10 th November, 2010. In Stockely Van Camp, Inc. (supra), the appellants/plaintiffs were selling the sports drink "Gatorade" and in respect of which the expression "Rehydrates, Replenishes Refuel" was being used. An injunction was claimed against the respondent/defendant, which was using the expression "Rehydrates Fluids; Replenishes Vital Salts; and Recharge Glucose" in respect of its energy drink "Glucon D Isotonk", on the ground that it was deceptively similar to the plaintiffs' mark/expression. Relying upon the judgment in Marico (supra), the Division Bench dismissed the appeal and denied grant of interim injunction in favour of the appellants/plaintiffs. The relevant observations of the Division Bench are reproduced below:

31. In the present case, the defendants launched their products in India in October/November, 2017 using the impugned mark on their product. Although the present suit was filed in the year 2018, the fact of the matter is that no injunction has been granted in favour of the plaintiff till date, even though the delay may not entirely be attributable to the plaintiff. Even though some of this delay may be attributable to the judicial process and/or the outbreak of COVID-19 pandemic, the undisputed position is that the defendants have been selling their product with the impugned mark for almost five years. One of the factors to be weighed by the Court is whether or not at this stage, an interim injunction should be granted in favour of the plaintiff, restraining the defendants from using the impugned mark. In this regard, it would be apposite to refer to the observations made by the Supreme Court in Wander Ltd. and Ors. v. Antox India P. Ltd., 1990 Supp SCC 727, which are set out below:

32. Applying the aforesaid principles and taking into account that the defendants have been selling their product for a period of five years with the aforesaid impugned mark, the balance of convenience would be against the grant of interim injunction.

33. Counsel for the plaintiff has placed reliance on the judgment of a Division Bench of this Court in Procter & Gamble Manufacturing v. Anchor Health & Beauty Care Pvt. Ltd., 211 (2014) DLT 466 (DB). In the aforesaid case, the respondent/plaintiff was using the expressions "ANCHOR ALLROUND PROTECTION" / "ALLROUND PROTECTION" and "ALLROUND" in respect of its toothpaste and the appellants/defendants were using the expression "ALL-AROUND PROTECTION" / "ALL-ROUNDER" / "ALLROUNDER" in respect of their toothpaste. Aggrieved therefrom, the plaintiff filed a suit against the defendant in which an interim injunction was granted in favour of the plaintiff by the Single Judge.The appeal filed on behalf of the defendant against the grant of interim injunction was dismissed by the Division Bench. The factors which weighed with the Division Bench in the aforesaid case to confirm the injunction were that the marks "ALLROUND PROTECTION"

38. In light of the aforesaid findings, need is not felt to refer to other judgments filed on behalf of the parties.

39. In view of the discussion above, the plaintiff has failed to establish a prima facie case in its favour for grant of interim injunction. Both the taglines used by the plaintiff and the defendants are descriptive and laudatory in nature. Whether the aforesaid tagline of the plaintiff has acquired distinctiveness or secondary meaning in respect of the plaintiff's products can only be established at the stage of trial. Balance of convenience is also in favour of the defendants for not granting interim injunction as the products of the defendants have been selling in the market with the impugned tagline for almost five years. Hence, the present application under Order XXXIX Rule 1 and 2 of the CPC is dismissed.