Full Text
HIGH COURT OF DELHI
Date of Decision: 24th July, 2019.
TOASHA AGENCIES AND ANR ..... Plaintiffs
Through: Mr. V.K. Puri, Mr. Amit and Mr. Gajender Singh, Advs.
Through: Mr. Samar Singh Kushwaha, Mr. Raghavendra M. Bajaj and Ms. Shivangi Nanda, Advs.
JUDGMENT
1. The counsel for the applicants/plaintiffs does not know anything about this application.
2. The counsel for the defendant states that this application is infructuous in view of the order dated 5th April, 2019.
3. In terms of the order dated 5th April, 2019, the application is disposed of. IA No.13185/2016 (of plaintiff u/O XXXIX R-1&2 CPC)
1. The plaintiffs have sued for permanent injunction to restrain the defendant from passing off his business as that of the plaintiffs, pleading (i) that the plaintiff No.1 Toasha Agencies is a sole proprietorship of Vishal Garg; the plaintiff No.2 Toasha Vaccines South End is a sole proprietorship 2019:DHC:3599 of Amit Garg, brother of Vishal Garg; (ii) that the father namely Madan Lal Garg, of Vishal Garg and Amit Garg, had adopted the name of TOASHA for his business, being the nickname of the wife, who is the mother of Vishal Garg and Amit Garg; (iii) that the business of Toasha Agencies and Toasha Vaccines South End were established in 1986; (iv) that the plaintiffs are global, diversified healthcare firms devoted to develop pharmaceutical vaccines and medicines and market their products all over India with a network of eight distribution points; the plaintiffs are one of the most reputed logistics business in India; the plaintiffs are in the business of purchasing quality pharmaceutical products from the manufacturers and in turn delivering the same to the customers through their outlet units spread all over India; (v) that the plaintiffs‟ products encompass a wide and diverse range; (vi) that the plaintiffs‟ pharmaceutical vaccines and medicines are extremely popular; (vii) that as a result of superior quality of products marketed, sold and dealt with by the plaintiffs under the trade mark „TOASHA‟, they have acquired considerable goodwill; (viii) that the defendant Sidhant Choudhary is the proprietor of Toasha Vaccines (India);
(ix) that the defendant, a good friend of Amit Garg, was employed with the plaintiff No.1 from 1st February, 2000 to 15th February, 2004 as Medical and Sales Representative and was handling the sales and purchase of drugs of the plaintiffs; (x) that the defendant left the employment of the plaintiff No.1 in 2005 and the plaintiff No.1 orally permitted the defendant to run the business under the name and style of TOASHA for East Delhi shop run by the defendant; (xi) that the said arrangement between the parties was on payment of royalty by the defendant to the plaintiffs but no royalty was ever paid by the defendant; (xii) that though the plaintiffs tried their best to avoid litigation with the defendant on account of friendship, but the defendant had no intention to settle and over a period of time it became clear that the defendant, after gaining the limited permission from the plaintiffs to use the mark, had turned dishonest; (xiii) that the defendant filed Trade Mark Application in the year 2010 for the mark TOASHA in Class 5, which got registered in the year 2011 and which fact was recently discovered by the plaintiffs; (xiv) that though the plaintiffs also filed an application for registration of TOASHA but the same was withdrawn owing to advise that the same had been wrongly filed; (xv) that the defendant, on 27th July, 2016 filed another application for registration of the mark „TOASHA‟ with device in Class 5; (xvi) that on making enquiries, it was also learnt that the defendant was not merely confining his business activities to East Delhi, in terms of the oral permission granted, but was expanding his business to Noida and Ghaziabad; and, (xvii) that the actions of the defendant are mala fide.
2. The defendant has contested the suit, pleading (a) that the plaintiffs have acquiesced in and are estopped from suing, having been aware all along of use of TOASHA by the defendant; (b) that the plaintiffs have falsely pleaded employment of the defendant with the plaintiff No.1; the defendant and Amit Garg were friends at Amity University, pursuing the course of Business management during 1998-2000; (c) that the father of Amit Garg was carrying on business as stockist for human vaccines under the name and style of Toasha Agencies; (d) that in the year 2000, the plaintiffs realised that they were unable to earn good returns and to expand their business suggested to the defendant to also enter the business of a stockist of human vaccines and start an independent business in the name of TOASHA, so that as a collective force the parties could enjoy better bargaining powers; (e) that accordingly, in or about 2004, the defendant commenced the business as a stockist under the name and style of Toasha Vaccines (India); (f) that at first the defendant purchased the vaccines from the plaintiffs and sold the same to doctors / chemists; slowly the defendant made his own name in the field and was able to establish a direct relationship with the pharmaceutical companies / manufacturers of vaccines, and from 2006 became a stockist of the companies; (g) that the defendant, from the year 2004 has carried on business in the name and style of Toasha Vaccines (India); (h) that the plaintiffs have always known about the defendant and in fact also had financial transactions with the defendant; (i) that in 2009, the defendant‟s wife also started a sole proprietorship in Noida by the name of Toasha Vaccines (India) and the plaintiffs were aware of the same also; (j) that the defendant, in an attempt of brand building, also obtained registration of TOASHA as a trade mark in the year 2010-2011; (k) that the plaintiffs as well as the defendant do not deal with any customers directly and deal with chemists and institutions; (l) that the plaintiffs have falsely stated that they were manufacturing medicines and the suit is liable to be dismissed on this ground alone; (m) that the goods sold by the plaintiffs as well the defendant are procured from the multinational pharmaceutical companies, so there is no question of mentioning any mark / name on the finished products of the said pharmaceutical companies; (n) that the suit is an afterthought and there was never any agreement for payment to royalty; and, (o) that the suit is an effect of the jealousy of the plaintiffs for the fast developing business of the defendant.
3. This suit along with the application for interim relief came up before this Court on 24th October, 2016, when finding that though the plaintiffs had pleaded that the documents in support of various pleas were filed but in fact were not filed and further, on the basis of the reply by the defendant to the legal notice preceding the suit finding no case for granting ex-parte injunction, though summons of the suit and notice of the application for interim relief were issued but no ex-parte relief granted.
4. The plaintiffs filed Review Petition No.548/2016 to seek review of the order dated 24th October, 2016. The said Review Petition came up first before this Court on 15th December, 2016, when observing that non-grant on 24th October, 2016 of ex-parte relief could not be reviewed on 15th December, 2016, when notice for 19th January, 2017 of the suit and the application for interim relief had been issued, the Review Petition was disposed of making it clear that the observations contained in the order dated 24th October, 2016 were prima facie and will not come in the way of the plaintiffs, if after notice, found to be entitled to interim relief, being granted interim relief.
5. The suit since then has been languishing and the application for interim relief has not been heard till date.
6. Though the defendant, without prejudice to his rights and contentions, on 24th March, 2017 was willing to consider dropping the name “TOASHA”, if given one year‟s time and if the plaintiffs, for the period of one year did not enter the markets of East Delhi, Ghaziabad, Noida, Greater Noida and Uttar Pradesh, and to which the plaintiffs then did not agree, but today the counsel for the defendant on enquiry and after taking instructions states that the defendant is now not willing to settle on the terms as recorded in the order dated 24th March, 2017.
7. Being prima facie of the view, (i) that the defendant having admitted the plaintiffs to be the prior adopter of the name „TOASHA‟; (ii) that concurrent running of two businesses in the same field, one of the plaintiffs and the other of the defendant, is likely to cause confusion and the customers of the said business mistaking one for the other; (iii) that mark includes name/trade name; and, (iv) that the Companies Act, 2013 and the Limited Liability Partnership Act, 2008 also prohibit same name for two businesses, I have straightway enquired from the counsel for the defendant, why the interim injunction restraining the defendant from use of the word „TOASHA‟ should not follow.
8. The counsel for the defendant has argued, (A) that while the plaintiffs use „TOASHA‟ only in their name and not as a mark or as a brand, the defendant use of „TOASHA‟ is as a brand; the business of both parties being of stockist i.e. purchase of human vaccines from pharmaceutical companies and sale / distribution thereof, neither the plaintiffs nor the defendant, by the very nature of their business, can use „TOASHA‟ on the goods they are dealing in; however the defendant on its bills has a hologram of „TOASHA‟ written between two syringes and which amounts to use thereof as a brand; (B) that the plaintiffs have never registered „TOASHA‟ as a trade mark; however the defendant is the registered proprietor of the trade mark „TOASHA‟ and the plaintiffs without registration, cannot injunct the defendant holding a registration; (C) that the plaintiffs have indulged in falsehood, misrepresentations and concealment of facts; attention in this regard is drawn to the order dated 24th October, 2016 denying ex-parte injunction sought by the plaintiffs; (D) that the defendant is not riding piggy back on the goodwill of the plaintiffs; and, (E) that the plaintiff is not entitled to interim relief on the ground of acquiescence, laches and waiver.
9. The counsel for the defendant has also handed over in the Court a compilation of (i) Municipal Council Vs. K. Ravindra & Co. 2003 SCC Online Bom 117, (ii) McDonald’s Corporation Vs. Sterling’s Mac Fast Food 2007 (5) KarLJ 638 (para 11), (iii) Khoday Distilleries Ltd. Vs. The Scotch Whiskey Association (2008) 10 SCC 723 (paras 60, 61, 62 & 66),
(iv) Unichem Laboratories Vs. Ipca Laboratories Ltd. 2011 (45) PTC 488
(Bom) (para 30), (v) Warner Bros Entertainment Inc. Vs. Harinder Hohli 155 (2008) DLT 56 (paras 30 & 32), (vi) Eveready Industries India Ltd. Vs. Sanjay Chadha 179 (2011) DLT 355 (paras 14 & 15), (vii) Hearst Communications Vs. Dinesh Varyani 2009 SCC OnLine Del 1138 (paras 26 & 27), (viii) The Gillette Company Vs. A.K. Stationary 2001 SCC Online Del 800 (para 11), (ix) Shri Gopal Engg. And Chemical Works Vs. POMX Laboratory AIR 1992 Del 302 (paras 5&6), (x) Toyota Jidosha Kabushiki Kaisha Vs. Deepak Mangal 2010 SCC Online Del 1232 (paras 35,36,37 & 45), (xi) Amritdhara Pharmacy Vs. Satya Deo Gupta AIR 1963 SC 449 (para 13), (xii) Hindustan Pencils (P) Ltd. Vs. India Stationary Products Co. AIR 1990 Del 19, (xiii) Kirloskar Propriety Ltd. Vs. Kirloskar Dimensions Pvt. Ltd. AIR 1997 Kant 1 (para 34), (xiv) Power Control Appliances Vs. Sumeet Machines Pvt. Ltd. (1994) 2 SCC 448 (para 29), (xv) Essel Propack Ltd. Vs. Essel Kitchenware Ltd. 2016 (66) PTC 173 (Bom) (paras 33, 36 & 38), (xvi) Wander Ltd. Vs. Antox India P. Ltd. 1990 (Supp) SCC 727 (paras 10 & 11) and (xvii) Satish Khosla Vs. Eli Lilly Ranbaxy Ltd. MANU/DE/0763/1998 (paras 14, 16, 17, 18, 19 & 21).
10. The counsel for the defendant, after hearing, has also handed over two page “Short Written Submissions”.
11. I proceed to deal with the aforesaid broad contentions of the counsel for the defendant.
12. No merit is found in the contention of the counsel for the defendant, of the plaintiffs not using „TOASHA‟ as a mark / brand and the defendant doing so, and the contention in the written submissions, of the plaintiffs having never used „TOASHA‟ as a trade mark but only as a corporate name and there being no goodwill in favour of the plaintiffs in the mark „TOASHA‟, to cause the defendant to pass off his business as those of the plaintiffs.
13. It is not in dispute that Vishal Garg and Amit Garg are carrying on business in the names of Toasha Agencies and Toasha Vaccines South End. It is the contention of the counsel for the defendant himself that considering the nature of the business of the plaintiffs as well as defendant, of merely being stockist of human vaccines, there is no question of use by either, of „TOASHA‟ on goods they are dealing in. Just like Vishal Garg and Amit Garg are carrying on business in the name and style of Toasha Agencies and Toasha Vaccines South End, the defendant is carrying on business in the name and style of Toasha Vaccines (India). There is thus no difference in the use of „TOASHA‟ by the plaintiffs and the defendant. The only difference pointed out by the counsel for the defendant, is of the defendant on his invoices / bills, having a hologram with „TOASHA‟ written in it.
14. A perusal of the bills / invoices filed by the plaintiffs show the same to have been raised by Toasha Agencies and/or by Toasha Vaccines South End. A perusal of the invoices / bills filed by the defendant at pages 42 to 61 of the list of documents dated 14th March, 2017 show the invoices to have been raised by Toasha Vaccines (India). A careful look at the said invoices, particularly at pages 48 to 50, discloses a hologram comprising of two syringes in a „V‟ shape with a huge capital letter „T‟ written at the centre and with the word „TOASHA‟ above it in an inverted concave shape.
15. I am unable to find the use by the defendant of „TOASHA‟ to be any different from that of the plaintiffs. Merely having a hologram on the invoices of Toasha Vaccines (India) would not amount to use of „TOASHA‟ any differently from that by the plaintiffs.
16. What is good for the goose is good for the gander. If use as aforesaid by the defendant of „TOASHA‟, is as a trade mark, so it would be for the plaintiffs.
17. Mere registration obtained by the defendant of „TOASHA‟ as a trade mark also would not convert use by the defendant of „TOASHA‟ as a trade mark, if were otherwise not. Significantly, the registration of the defendant of „TOASHA‟ is as a word mark in capital letters and not of the hologram. The use by the defendant on its invoices of the hologram thus does not constitute use of the registered trade mark of the defendant.
18. Though the plaintiffs have sued for relief on the ground of passing off but in Crocs Inc. USA Vs. Aqualite India Limited 2019 SCC Online 7409, it has been held that the definition of mark / trade mark is not and cannot be different in an action on the ground of passing off and in an action on the ground of infringement.
19. The Trade Marks Act, 1999 in Section 2(1)(m) thereof defines a „mark‟ as including a device, brand, heading, label, ticket, name, signature, word, letter, numeral, shape of goods, packaging or combination of colours or any combination thereof. Section 2(1)(zb) defines „trade mark‟ as meaning a mark capable of being represented graphically and of distinguishing the goods or services of one person from those of others. It has been held in Filex Systems Pvt. Ltd. Vs Deepika File Products 2019 SCC Online Del 8411 and Everstone Capital Advisors Pvt. Ltd. Vs. Everstone Ventures LLP 2019 SCC Online Del 8111 that business name constitutes a trade mark. It would be a different matter if the goods / services in which business was carried on, are marketed and known by another trade mark and the market recognised the business by such mark only and the name in which business is carried on is not even known to all concerned. The example which immediately comes to mind, is of Dettol and McVities (biscuits), makers/producers whereof namely Reckitt Benckiser and United Biscuits. respectively are hardly known. As compared therefrom, example can be given of Colgate-Palmolive Company, whose product toothpaste is also known by Colgate.
20. Here, it is the contention of counsel for defendant himself, that considering the nature of the business of plaintiffs Toasha Agencies and Toasha Vaccines South End and of the defendant as Toasha Vaccines (India), „TOASHA‟ is not used on the goods in which they are dealing in and which goods bear the name / mark of the pharmaceutical company manufacturing / selling the same. The counsel for defendant has himself also stated that the plaintiffs as well as the defendant buy / procure the goods from pharmaceutical companies and sell the same to chemists / institutions, which in turn sell / administer the same to consumers thereof. It is obvious therefrom that the said chemists / institutions do not directly procure the goods from pharmaceutical companies and have to approach middlemen like the plaintiffs and the defendant. It is not the case that the pharmaceutical companies and/or the chemists / institutions know the plaintiffs and the defendant by any name other than their trade name. The trade names are identical, with „TOASHA‟ as material part thereof and by which, both, plaintiffs and defendant will be referred to or remembered. „TOASHA‟ thus constitutes a trade mark. No merit is thus also found in the argument of the counsel for the defendant, of the defendant by using „TOASHA‟ as his trade name, not riding piggy back on the goodwill of the business of the plaintiffs, also with the trade name „TOASHA‟. It is not the pleaded case of the defendant that the business of the plaintiffs is known by the name of Vishal Garg and Amit Garg or that the business of the defendant is known by the name of Siddhant Choudhary. The goodwill of the business thus squarely rests in the trade name „TOASHA‟ and which it is not in dispute is identical.
21. The business of providing services as stockist of human vaccines, of the plaintiffs is capable of being distinguished from the business of others providing the same services, only by the trade name of the plaintiffs of „TOASHA‟, and use by plaintiffs of „TOASHA‟ amounts to use as a trade mark.
22. Even otherwise, law does not envisage identical businesses having the same name. Section 15(2) of the Limited Liability Partnership Act prohibits registration of a limited liability partnership (LLP) by a name which is identical or too nearly resembles to that of any other partnership firm or LLP or body corporate or a registered trade mark, or a trade mark which is subject of an application for registration, of any other person under the Trade Marks Act. Section 17 of the Limited Liability Partnership Act provides for change of name of an LLP, name whereof is identical or too nearly resembles the name of any other LLP or body corporate or other name as to be likely to be mistaken for it. Similarly, Section 16 of the Companies Act provides for rectification of the name of a company, the name whereof is identical with or too nearly resembles the name by which the company in existence had been previously registered. The said provisions show the legislative intent, besides under the law relating to trade marks, of not allowing two businesses in the same field to have identical name.
23. The argument of the counsel for the defendant, of the plaintiffs being not entitled to restrain the defendant because of the defendant having obtained registration of „TOASHA‟ as a trade mark and the plaintiffs having no registration, is also contrary to law. Section 27(1) of the Trade Marks Act bars an action, only for infringement of an unregistered trade mark. However, Section 27(2) makes it clear that nothing in the Act shall be deemed to affect right of action against any person for passing off goods or services as the goods of another person or as services provided by another person or the remedies in respect thereof. Once, it is not in dispute that the plaintiffs are prior adopter of „TOASHA‟, held to be a trade mark of the plaintiffs, the action of the defendant of using „TOASHA‟ with respect to his identical business amounts to the defendant passing off his services, also of a stockist of human vaccines, as those of the plaintiffs and the plaintiffs would be entitled to maintain an action on the ground of passing off, as the present suit is.
24. That brings me to the contention of the counsel for the defendant, of acquiescence and waiver. In fact, the counsel for the defendant stated that all the judgments which have been handed over by him, are on this aspect only.
25. The plaintiffs also admit use by the defendant of „TOASHA‟ for 11 years, since the year 2005, prior to the institution of the suit in the year
2016. The question for consideration is, whether the plaintiffs are to be denied interim injunction on the said ground. The plaintiffs have already been denied ex-parte injunction, which otherwise would have followed, inter alia on the said ground.
26. The plaintiffs however have offered an explanation for the said delay. The defendant also admits friendship since college days with Amit Garg proprietor of plaintiff No.1. It is the case of the plaintiffs that the defendant was working as Medical and Sales Representative with the plaintiffs from 1st February, 2000 to 15th February, 2004. The defendant has denied. However, the defendant has not disclosed his vocation during the said time, if not as a Medical Sales Representative with the plaintiffs. Perhaps the defendant, as a friend of proprietor of plaintiff No.1, is hesitant to admit of employment under his friend. The plaintiffs however in support of their said plea have along with their documents filed a photocopy of an affidavit dated 17th March, 2004 purporting to bear the signature of the defendant, wherein the defendant has stated that he was previously working as Medical Representative with plaintiff No.1 and was then working with Toasha Vaccines (India) and undertaken to inform the Office of the Drugs Controller, Government of India, Delhi as and when he would leave Toasha Vaccines (India). The said affidavit coupled with the silence of the defendant of his vocation between 2001-2004 is prima facie indicative of the plea of the plaintiffs of the defendant working with the plaintiffs to be true.
27. The defendant in his written statement to this suit has pleaded that he adopted „TOASHA‟ as his trade name at the behest of the plaintiffs, so that they could enjoy better bargaining powers for their respective businesses. The defendant also admits in his written statement that on commencement in or about 2004 of his business in the name of Toasha Vaccines (India), he was buying medicines from the plaintiffs only and selling the same to doctors / chemists and that over a period of time, he made his own contacts with the pharmaceutical companies and started buying medicines directly from pharmaceutical companies in the year 2006. The said pleas in the written statement of the defendant amount to an admission by the defendant, of adoption by him of the name „TOASHA‟ with the consent or permission of the plaintiffs and a business relationship between the plaintiffs and the defendant, at least for two years, from 2004 to 2006 on commencement of business by the defendant.
28. In this state of pleadings, again at this prima facie stage, the plea of the plaintiffs, of the plaintiffs having permitted the defendant to use the name „TOASHA‟ and by their notice dated 6th July, 2016 having withdrawn the said permission is believable. The defendant in his written statement having admitted that once in the year 2006 he became a stockist of the pharmaceutical companies, the question of the plaintiffs and the defendant carrying on their independent business, albeit in the same name, having any better bargaining power did not exist. Thus, according to the defendant also, the reason for which the plaintiffs had permitted the defendant to use their mark „TOASHA‟, has come to an end. Once the reason for which permission to use trade mark is given comes to an end, the owner/proprietor of the trade mark is entitled to restrain the person to whom permission was given from using the trade mark.
29. It is not the case of the defendant that the plaintiffs at any time prior to the legal notice dated 6th July, 2016 called upon the defendant to stop using the trade mark. The suit was filed immediately thereafter and there is no question of any delay.
30. Rather, it is found that the defendant in his written statement has taken a stand very different from that taken in his response dated 1st August, 2016 Ex.P-1 to the notice preceding the suit got issued by the plaintiffs. The defendant in the said reply claimed to be the prior adopter and user of the trade mark „TOASHA‟ in respect of vaccines, medicines, medicinal and pharmaceutical preparations and substances. It was further claimed in the said reply that the said trade mark was adopted by the defendant honestly and bona fidely. It was also the plea of the defendant in the said reply, that since the plaintiffs were trading in South Delhi and North Delhi and had no intention to trade in East Delhi, the defendant could start his business in East Delhi in accordance with the mutual understanding. There is no explanation of such shift in stand.
31. Such shifting stand of the defendant, of when the plaintiffs first called upon him to stop the user of the mark, claiming to be the prior adopter and user of the trade mark and having adopted the same honestly and bonafidely, and now before this Court, of admitting the plaintiffs to be the prior adopter of the mark and taking the plea of the defendant having commenced use of the mark on the understanding with the plaintiffs and being entitled to continue using the mark, at least, at this stage leads to the inference that neither of the defences taken can be believed. Not only so, the defendant, during the hearing on 24th March, 2017 had sought only one year‟s time to give up use of the mark „TOASHA‟; now more than two years have elapsed and there is no reason for the defendant to renege from what he was ready for on 24th March, 2017.
32. The only other argument left of the defendant to be dealt with, is of the plaintiff having practised suppression and concealment and in which regard the counsel for the defendant has placed sole reliance on the order dated 24th October, 2016 in this suit.
33. However, the aforesaid plea/argument of the defendants loses sight of the subsequent order dated 15th December, 2016 on the petition for review sought by the plaintiff of the order dated 24th October, 2016. The plaintiffs in the review petition pleaded at length as to why they were not guilty of suppression and concealment. Though, the said review was dismissed on the ground of the delay in filing thereof, when summons/notice of the suit had been issued shortly thereafter for 19th January, 2017, but on the counsel for the plaintiffs expressing apprehension that the observations in the order dated 24th October, 2016 may come in the way of the plaintiffs getting interim relief after notice also, and finding some merit in the pleas taken in the review petition, it was observed in the order dated 15th December, 2016 that the observations contained in the order dated 24th October, 2016 were prima facie and would not come in the way of the plaintiffs, if after notice found entitled to interim relief, being granted interim relief. The reliance by the counsel for the defendant on the order dated 24th October, 2016 is thus not apposite.
34. Else, the counsel for the defendant no.1 has on the aspect of suppression and concealment only argued that the plaintiffs in the plaint have falsely portrayed use of „TOASHA‟ as a trade mark when in fact they are not.
35. I am unable to agree.
36. A reading of the entire plaint and the documents filed therewith does not show the plaintiffs to have pleaded so or sought to convey an impression of use of „TOASHA‟ otherwise than as a trade name. Thus, no merit is found, also in the argument of the plaintiff being not entitled to interim relief on the ground of having practised falsehood, suppression and concealment in the plaint. Also, merely because the plaintiffs have been denied ex parte relief on the said ground, is no reason for the plaintiffs, if otherwise found entitled to interim relief, at the after-notice stage when both the parties have made full disclosure before this Court, being denied interim relief.
37. The plaintiffs are thus found entitled to the interim relief claimed of restraining the defendant from using „TOASHA‟ as a trade mark or as part of trade name of the defendant.
38. Though, the defendant on 24th March, 2017 wanted only one year‟s time to stop such use and more than double that time has elapsed, but still it is deemed appropriate to grant time to the defendant till 30th November, 2019 to stop use of „TOASHA‟ as aforesaid, till the disposal of the suit and to, in the interregnum, have its name changed with all the authorities with which it is registered and to intimate the persons with whom the defendant is dealing of such change. The interim injunction granted today will thus come into force with effect from 1st December, 2019.
39. IA No.5394/2019 is allowed. The defendant, either himself or through any other person, with effect from 1st December, 2019, till the disposal of the suit, is restrained from using the word „TOASHA‟ or any other word similar or deceptively similar thereto, as part of name/trade name/mark or in any other manner whatsoever.
40. The application is disposed of. CS(COMM) No.1441/2016
41. List for consideration on 25th November, 2019.