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MANMOHAN, J :

1. The present appeal has been filed against the ex-parte injunction order dated 20th December, 2007 passed by the learned Single Judge. The trial court after holding that the Plaintiff's/ Respondent's Mark HAJMOLA was a well known mark under Section 2(zg) of the Trade Mark Act, 1999 held that the Defendant's mark RASMOLA for the same product was deceptively similar and likely to cause confusion in the minds of the customers of these products, especially children. Consequently, by virtue of the impugned order, the learned Single Judge restrained the Appellant/Defendant from using the mark RASMOLA and in particular the suffix MOLA in respect of the digestive tablets manufactured and sold by it.

7. On the other hand, Dr. A.M. Singhvi and Mr. Sudhir Chandra Aggarwal, learned senior Counsel for Respondent/Plaintiff contended that the Respondent/Plaintiff's registered trade mark HAJMOLA is a coined and invented word. While part of the word HAJ is inspired by hajma which means digestion, the other part namely MOLA means nothing. Consequently, it was contended that the word HAJMOLA is very distinctive and the Respondent/Plaintiffs were entitled to highest protection in the said mark.

8. The Respondent/Plaintiff further submitted that admittedly it was the prior user of the registered trade mark HAJMOLA and its usage dates back to 1972. It was contended that in 1989 when the Appellant is alleged to have first adopted the mark RASMOLA, the Respondent/Plaintiff already had a turnover of Rs. 8.50 crores in HAJMOLA products and its advertisement budget was Rs. 50.9 lakhs. According to the Respondent/Plaintiff its annual sales turnover of HAJMOLA in 2007 was about Rs. 74 crores. It was, therefore submitted that the Respondent/Plaintiff's mark was already a well known mark.

14. According to the Respondent/Plaintiff there was no cogent evidence to establish that the Respondent/Plaintiff knew about the infringing activities of the Appellant and took positive steps to encourage it. Consequently, it was submitted that plea of acquiescence or delay must fail. Even otherwise it was submitted that delay or laches would be no defence to grant of an interim injunction against the unlawful use of Respondent/Plaintiff's registered trademark HAJMOLA.