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      Sr. No.      Trade Mark                              No.            Status
      1            DISPOFLON                               2500221 Registered



       2            DISPONEO ALPHA               2500219 Registered
      3            DISPO WAY                    2500217 Registered
      4            DISPOWAY PLUS                2500216 Registered

26. Thus the defendant has prior statutory and proprietary rights vesting in the trade marks DISPOVAN and DISPOCANN and DISPO formative marks. The defendant commenced user of the mark DISPOVAN/ in the year 1986; registration for the said mark dates back to the year 1986 and registration/use of the mark DISPOCANN/ dates back to 2006. The mark DISPOVAN is registered and being used internationally as well. The use by the plaintiffs is subsequent to that of defendant. The plaintiffs have rather failed to show any evidence of use of the mark DISPOSAFE in respect of goods in question and despite directions, have not filed their balance sheets, sales figures evidencing sale of their products under the trade mark DISPOSAFE in any manner. Further the plaintiffs have amended the user claim in respect of their applications for registrations of the mark DISPOSAFE from April 01, 2011 to August 27, 2008 and for the mark from April 01, 2011 to December 18, 2007, however, there is no evidence to show any use of the said marks even since the year 2007/2008.

27. The plaintiffs are blowing hot and cold at the same time. On the one hand, they are alleging DISPO is publici juris and on the other hand they allege DISPOSAFE is a coined mark; they allege DISPO denotes disposables with respect to disposable medical devices and such words are matter of public rights. This is contrary to their stand before the Trade Marks Registry and in Suit No. CS (COMM) 139/2016 wherein they are asserting rights in the marks DISPOSAFE .

28. Though the plaintiffs have now admitted they are only asserting rights over the mark DISPOSAFE and not on DISPO formative marks but it is again contrary to their conduct before the Trade Marks Registry where they have filed applications for registration of DISPO formative marks such as DISPOSAFE (No. 2569950); (No. 2569923); DISPOCAN (No. 2569927); DISPOFLEX (No. 2569930), DISPOFLON (No. 2569926); DISPON (No. 2569928); DISPOWAY (No. 3933703) and DISPONEO (No. 2569929). The aforesaid establishes they are also attempting to secure rights over DISPO formative marks.

29. The plaintiffs are relying on third party applications filed with the Trade Marks Registry for registration of DISPO formative marks, however, have failed to adduce any documents showing such marks are in use and whereas on the other hand the defendant has taken actions such as addressing cease & desist notices against entities found to be using DISPO formative marks or filed opposition proceedings against DISPO formative applications, as and when it has come to its knowledge.

36. Accordingly, the defendants, its promoters, assignees, successors- in-interest, licensees, franchisees, partners, directors, representatives, servants, distributors, employees, agents, carrying and forwarding agents etc. are restrained from using the trade mark DISPOCAN and other DISPO formative marks identical/similar to plaintiffs trademarks DISPOCANN singularly or in conjunction with any other word or monogram/logo or label in any manner whatsoever upon and in relation to its products/services/business whether as a trade mark, service mark, trade name, corporate name, trading style or as website, domain name and e-mail address etc till the final disposal of this suit. This order shall be operative after four weeks from today.