V. Ramasubramanian, J:

1. Pending suit for infringement and passing off, the plaintiff has come up with (i) an application for interim injunction restraining the respondent from manufacturing, selling, advertising and offering for sale, their product using the trade mark EYELEX in O.A. No. 255 of 2006 and (ii) an application for interim injunction restraining the respondent from manufacturing, marketing, distributing, offering or advertising for sale, their eye lotion, using the mark EYELEX or similar names and passing off their goods using same or similar mark on their goods in O.A. No. 256 of 2006. The plaintiff has also taken out an application in A. No. 1241 of 2006 under Clause 14 of the Letters Patent for combining the causes of action for infringement as well as for passing off.

2. The defendant has filed an application in A. No. 3704 of 2006 for rejecting the plaint.

3. Heard Mr. C. Daniel, learned counsel appearing for the plaintiff and Mr. Satish Parasaran, learned counsel appearing for the defendant.

4. The plaintiff is the Proprietor of a registered trade mark bearing No. 124824 in respect of goods falling under Clause 3. The registration was made on 11.9.1946 in favour of one Mr. P.K. Vasudevan and was renewed from time to time and the plaintiff became the owner with effect from 14.8.1958. The registration was in respect of the word mark "EYETEX" as well as the device mark containing the left eye of a lady artistically drawn on a white background with green coloured lines drawn on either side. The Legal User Certificate issued to the plaintiff is filed as document No. 2 along with the plaint. The annexure to document No. 2 shows that the said word mark and device mark were registered in respect of "beauty specialities for toilet purposes".

5. The plaintiff has also obtained another registration of the word mark "EYETEX" under trade mark No. 271583 in respect of "perfumery and perfumery compounds, essential oils and cosmetics, hair lotions and hair oils and non-medicated toilet preparations", with effect from 24.4.1971. The Legal User Certificate in respect of the same has been filed as document No. 3.

6. The plaintiff has also obtained another registration of the word mark "EYETEX" with the device written in Tamil "..... ....." under trade mark No. 296914 in respect of "perfumery and perfumery compounds, cosmetic preparations known as Kajal or Kanmye, Bindi, Bindi Pencil, Kumkum being a toilet preparation in paste or powder form, eyebrow pencils, eye liner and eye shadow being toilet preparations for the eye and eyebrow, lipstick, essential oils, hair lotions (non-medicated), brilliantine, hair cream, hair oils, face cream, cold cream, after shave lotion, shaving soap, shaving cream and talcum powder", with effect from 14.6.1974. The Legal User Certificate in respect of the same has been filed as document No. 4.

7. Similar Certificates for the use of the same word mark in Hindi with registration No. 296910, in Kannada with registration No. 296913 and in Telugu with registration No. 296909 are filed as document Nos. 6, 7 and 8.

8. In the Trade Mark Journal No. 1210 (Regular) published on 1.11.1999, the plaintiff saw an advertisement issued on behalf of the defendant, under Application No. 456310B dated 2.7.1986, seeking registration of the trade mark "EYELEX" in respect of eye lotion for pharmaceutical purposes under Clause 5. The copy of this Trade Mark Journal has been filed as document No. 9. The plaintiff filed a notice of opposition in Form TM-05 on 27.1.2000 and the copy of the notice of opposition is filed as document No. 10. The notice of opposition has not been disposed of so far by the Trade Marks Registry. In the meantime, the plaintiff has come up with the present suit.

9. The defendant has not chosen to file any counter, adverting to the averments contained in the affidavit is support of both the applications for injunction in respect of infringement and passing off. On the other hand, the defendant has come up with an application to reject the plaint, on two grounds viz.,

(a) that even according to the plaintiff, as seen from paragraph-14 of the plaint, the plaintiff is unable to find the product manufactured by the defendant, in the market, indicating thereby that there was no cause of action for the plaintiff to sue the defendant; and

(b) that the plaintiff failed to obtain leave to sue under Clause 12 of the Letters Patent and hence the suit is not maintainable.

10. Since the defendant has not chosen to file a counter to the applications for injunction, but has come up only with the application for rejection of the plaint, I shall take up the application A. No. 3704 of 2006 under Order VII Rule 11 CPC, before taking up the other applications.

A. No. 3704 of 2006

11. The first ground on which the defendant seeks rejection of the plaint is that the plaint does not disclose a cause of action, inasmuch as, even as per the averments in paragraph-14 of the plaint, the plaintiff has not been able to find the product manufactured by the defendant, with the offending marks.

12. But by now, it is well settled that cause of action is nothing but a bundle of facts, which gave rise to a right for the plaintiff to sue. The plaintiff originally became aggrieved by the attempt made by the defendant to get a deceptively similar mark "EYELEX" registered in respect of eye lotion. The plaintiff became aware of the said attempt, through the Trade Mark Journal and filed a notice of opposition. If the notice of opposition had been disposed of by the Trade Marks Registry, one way or the other, the plaintiff could have pursued his statutory remedies under the. Since the notice of opposition has not so far been disposed of, the plaintiff did not want to keep quiet and hence he came up with the present suit. Therefore, it cannot be said that there was no cause of action for the plaintiff to institute the present suit.

13. The averment in paragraph 14 of the plaint that the plaintiff could not find the product of the defendant in the market, cannot be taken to mean that the plaintiff has rushed to Court without there being a cause of action. As a matter of fact, if the defendant had come up with an averment that their products are not available in the market with the offending mark, then the admission made by the plaintiff in paragraph 14 of the plant, could have gone to the rescue of the defendant. But the defendant has not chosen to come out clean, with a positive averment as to whether their products are available in the market, with the offending mark or not. In other words, if the products of the defendant are actually available in the market, but the plaintiff could not locate them, the plaintiff would still have a cause of action. If the products of the defendant are not at all available in the market, then there would have been no cause of action for the plaintiff. Therefore, I hold that the plaintiff had a cause of action to sue the defendant.

14. Coming to the second ground raised by the defendant for rejection of the plaint, it is not in dispute -

(a) that the plaintiff has his principal place of business at Chennai within the jurisdiction of this Court;

(b) that the defendant is carrying on business at Kolkatta;

(c) that the plaintiff did not obtain leave to sue under Clause 12 of the Letters Patent, before the institution of the suit; and

(d) that the present suit is one for infringement as well as passing off and the plaintiff has filed an application for leave to combine both the causes of action under Clause 14 of the Letters Patent.

15. In the light of the admitted facts enumerated above, Mr. Satish Parasaran, learned counsel for the defendant contended that the plaintiff ought to have obtained prior leave under Clause 12 of the Letters Patent, when admittedly the defendant is carrying on business at Kolkatta and no part of the cause of action arose within the jurisdiction of this Court. It is his contention that despite the right conferred upon the plaintiff to institute the suit on the file of this Court under Section 134 (2) of the Trade Marks Act, 1999, the requirement to obtain prior leave under Clause 12, cannot be dispensed with.

16. In support of his said contention, the learned counsel for the defendant relied upon a decision of this Court in Maya Appliances Pvt Ltd v. Pigeon Appliances Pvt Ltd (2004 (4) CTC 334 [LQ/MadHC/2004/1131] ). In the said case, Justice S. Ashok Kumar, dismissed the application for injunction, in a suit for infringement of copyright, infringement of trade mark and passing off, on the ground that the plaintiff therein failed to obtain leave to sue under Clause 12 and also failed to obtain leave for combining the causes of action under Clause 14 of the Letters Patent.

17. In order to appreciate the propensity of the said contention of the learned counsel for the defendant, it is necessary to analyse the purport of Clause 12 and Clause 14 of the Letters Patent, with reference to Section 134 of the Trade Marks Act, 1999. Clause 12 and Clause 14 of Letters Patent read as follows:-

"12. Original Jurisdiction as to Suits. -- And we do further ordain that the said High Court of Judicature at Madras, in exercise of its ordinary original civil jurisdiction, shall be empowered to receive, try, and determine suits of every description if, in the case of suits for land or other immovable property, such land or property shall be situated, or in all other cases, if the cause of action shall have arisen, either wholly, or in case the leave of the Court shall have been first obtained, in part, within the local limits of the ordinary original jurisdiction of the said High Court: Or if the defendant at the time of the commencement of the suit shall dwell or carry on business or personally work for gain, within such limits except that the said High Court, shall not have such original jurisdiction in cases falling within the jurisdiction of the Small Cause at Madras, in which the debt or damage, or value of the property sued for does not exceed hundred rupees."

"14. Joinder of several causes of action. -- And We do further ordain that where plaintiff has several causes of action against defendant, such causes of action not being for land or other immovable property, and the said High Court shall have original jurisdiction in respect of one of such causes of action, it shall be lawful for the said High Court to call on the defendant to show cause why the several causes of action should not be joined together in one suit, and to make such order for trial of the same as the said High Court shall seem fit."

Section 134 of the Trade Marks Act, 1999 reads as follows:-

"134. Suit for infringement etc., to be instituted before district Court, -- (1) No suit--

(a) for the infringement of a registered trade mark; or

(b) relating to any right in a registered trade mark; or

(c) for passing off arising out of the use by the defendant of any trade mark which is identical with or deceptively similar to the plaintiffs trade mark, whether registered or unregistered,

shall be instituted in any Court inferior to a District Court having jurisdiction to try the suit.

(2) For the purpose of Clauses (a) and (b) of sub-section (1), a "District Court having jurisdiction" shall, notwithstanding anything contained in the Code of Civil Procedure, 1908 (5 of 1908) or any other law for the time being in force, include a District Court within the local limits of whose jurisdiction, at the time of the institution of the suit or other proceeding, the person instituting the suit or proceeding, or, where there are more than one such persons any of them, actually and voluntarily resides or carries on business or personally works for gain.

Explanation. -- For the purposes of sub-section (2), "person" includes the registered proprietor and the registered user."

18. On a careful consideration of the language used in Clause 12 and Clause 14 of the Letters Patent, it is seen that the requirement to obtain leave under Clause 12, is before the institution of the suit, while the requirement to obtain an order under Clause 14, does not appear to be so. Clause 12 contemplates four different types of suits viz., (i) suits for land or other immovable property situate within the jurisdiction of this Court, (ii) suits in which, the whole of the cause of action had arisen within the jurisdiction of this Court, (iii) suits in which a part of the cause of action alone had arisen within the jurisdiction of this Court, and (iv) suits in which the defendant dwells or carries on business or personally works for gain, at the time of commencement of the suit, within the jurisdiction of this Court.

19. In respect of suits falling under categories (i), (ii) and (iv) enumerated above, the jurisdiction of this Court is clear, unambiguous and automatic, requiring no leave or permission from this Court. If a suit falls under any of the categories (i), (ii) or (iv) enumerated above, the plaintiff, as of right, is entitled to institute the suit on the file of this Court. But if the suit falls under category (iii), it is incumbent upon the plaintiff to obtain the leave of the Court. By the use of the expression "or in case the leave of the Court shall have been `first obtained, in part", it is made clear by Clause 12 that the leave contemplated therein is "prior leave". This conclusion is inevitable in view of a similar expression used in Section 92 CPC, and which has come to be interpreted by Courts to indicate prior leave. The expression used in Section 92 CPC is "having obtained the leave of the Court". Therefore, a suit falling under category (iii) mentioned above, in which, only a part of the cause of action had arisen within the jurisdiction of this Court, is not maintainable, if the plaintiff had failed to obtain prior leave.

20. In contra distinction to Clause 12, the requirement to obtain leave under Clause 14 does not appear to be, necessarily, a prior leave. All that is expected of this Court under Clause 14, is to call upon the defendant, to show cause why several causes of action should not be joined together in one suit and to pass an order for the trial of the same. In other words, Clause 14 does not even contemplate "a leave", but only a notice to the defendant to show cause, followed by an order for joint trial of all the causes of action. The only requirement under Clause 14 is that this Court should have jurisdiction in respect of at least one of the several causes of action on which the plaintiff sues and that such several causes of action are not for land or other immovable property.

21. Therefore, it is clear that the requirement to obtain leave under Clause 12 precedes the institution of the suit, while the requirement under Clause 14 is not one for leave to institute the suit but one for combining several causes of action for a trial of the same together. Consequently, the requirement under Clause 14 follows and not precedes the institution of the suit.

22. In this case, the plaintiff has filed an application in A. No. 1241 of 2006 under Clause 14 of the Letters Patent for combining the causes of action relating to infringement and passing off. But the plaintiff did not take prior leave of the Court to institute the suit, under Clause 12, on account of the fact that the plaintiff carries on business within the jurisdiction of this Court and claims to be the Proprietor of a registered trade mark, entitling them to take refuge under Section 134(2) of the Trade Marks Act, 1999.

23. The defendant has not disputed the fact that the plaintiff is carrying on business within the jurisdiction of this Court and that the plaintiff is the Proprietor of a registered trade mark, of which, infringement is complained of in the present suit. It is seen from Section 134 of the Trade Marks Act, 1999, that it contemplates three types of suits viz., (a) suit for infringement of a registered trade mark, (b) suit relating to any right in a registered trade mark, and (c) suit for passing off. In view of sub-section (1) of Section 134, all the above three types of suits are to be instituted only in a Court not inferior to a District Court having jurisdiction to try the suit. Sub-section (2) of Section 134, defines the expression "District Court having jurisdiction" found in sub-section (1), to include a District Court within whose jurisdiction the plaintiff resides or carries on business at the time of institution of the suit, if the suit is in respect of a registered trade mark. Therefore, a special privilege is conferred upon the Proprietor of a registered trade mark to institute a suit for infringement or a suit relating to any right in a registered trade mark, in the District Court within whose jurisdiction, he resides or carries on business. This privilege is conferred by Section 134(2), with a non abstante Clause, by using the phrase "notwithstanding anything contained in the Code of Civil Procedure, 1908 (5 of 1908) or any other law for the time being in force". Since Section 134(2) declares that it would hold the field, notwithstanding anything contained in the CPC or any other law for the time being in force, the same cannot be annulled or rendered nugatory, by importing the requirements of Clause 12 of the Letters Patent into a case covered by Section 134 (2) of the Trade Marks Act, 1999. The non abstante Clause automatically excludes the operation of the Letters Patent also, to a case covered by Section 134 (2) of the Trade Marks Act, 1999. Therefore, in a case of infringement of a trade mark, covered by Section 134 (2) of the Trade Marks Act, 1999, the question of the plaintiff taking prior leave of the Court, under Clause 12 of the Letters Patent, does not arise. In other words, in a suit for infringement covered by Section 134 (2), a plaintiff need not take the leave of the Court under Clause 12 of the Letters Patent, event if only a part of the cause of action or no part of the cause of action, arose within the jurisdiction of this Court.

24. Drawing my attention to a decision of the Division Bench of this Court in Hindustan Machine Tools Ltd. v. Union of India, AIR 1985 Mad 130 [LQ/MadHC/1983/410] , the learned Counsel for the defendant contended that Section 134(2) of the Trade Marks Act, 1999 provides only an Additional forum and that it did not exclude the operation of the Letters Patent and that therefore the requirement under the Letters Patent to obtain leave to use cannot be taken to have been wiped out.

25. But the said contention is wholly without any basis. In the case relied upon by the learned Counsel for the defendant, the question that arose for the consideration of the Division Bench was as to whether Section 80 of the Railways Act (9 of 1890) as amended by Act 39 of 1961, excluded the operation of Section 20 CPC or Clause 12 of the Letters Patent. On an analysis of the amended provisions of Section 80 of the Railways Act, the Division bench came to the conclusion that it only provided an Additional forum and that it did not exclude the operation of Section 20 CPC or Clause 12 of the Letters Patent. Therefore the said decision is of no application to a case covered by Section 134 (2) of the Trade Marks Act, 1999, for 2 reasons, namely-

(a) There was no non abstante clause in Section 80 of the Railways Act as found in Section 134(2) of the Trade Marks Act, and

(b) As seen from para 15 of the judgement of the Division Bench, Section 80 of the Railways Act enabled a person to institute a suit in a Court having jurisdiction (i) over the place of delivery of goods for carriage; or (ii) over the place where the destination station was; or (iii) over the place where the loss, injury, destruction, deterioration or damage occurred.

26. Thus, it is seen that Section 80 of the Railways Act did not actually confer any jurisdiction as a novelty, wholly contrary to the mandate of Section 20 CPC or Clause 12 of the Letters Patent. It only expanded the scope of the place where the cause of action would be deemed to arise. But Section 134 (2) of the Trade Marks Act deviates from the very principles of cause of action or atleast it treats the registration itself as a cause of action. Therefore, the decision of the Division Bench relied upon by the learned counsel for the defendant has no application to the facts of the present case.

27. Moreover, the question of the plaintiff taking the prior leave of the Court under Clause 12 did not arise at all in this case, for one more reason. Admittedly, no part of the cause of action arose within the jurisdiction of this Court, in view of the averment in paragraph-14 of the plaint that the plaintiff could not find the product of the defendant in the market. It is only in cases where a part of the cause of action arises within the jurisdiction of this Court, that Clause 12 requires a leave to be obtained. If no part of the cause of action arises within the jurisdiction of this Court or if the defendant does not reside or carry on business within the jurisdiction of this Court or if the land or immovable property in respect of which the suit is laid, is not situate within the jurisdiction of this Court, then this Court has no jurisdiction at all to try such a suit. In such cases, no leave can ever be obtained. In other words, one cannot take the leave of the Court under Clause 12, in respect of a suit, which does not fall under any of the four categories mentioned in the said Clause. The present suit is not one for land; it is not one in which the whole or any part of the cause of action arose within the jurisdiction of this Court; and it is not one in which the defendant resides or carries on business within the jurisdiction of this Court. Therefore, the contention that the plaintiff ought to have obtained leave under Clause 12 goes against the very tenor of Clause 12. This is not a case covered by Clause 12 of the Letter Patent, but a case covered by Section 134 (2) of the Trade Marks Act, 1999 and hence, I hold that the suit is maintainable on the file of this Court. Therefore, the application under Order VII Rule 11 CPC, A. No. 3704 of 2006 is dismissed.

A. No. 1241 of 2006:

28. Coming to the application for leave under Clause 14, taken out by the plaintiff, it is seen that in Brooke Bond India Limited v. Balaji Tea (India) Pvt. Ltd. 1993 (13) PTC 40, a Division Bench of this Court, held as follows:-

"If the facts in totality are in a bundle giving a cause as to infringement of copyright for which action on the Original side of this Court is valid other causes for action at other forums no doubt in the same bundle should not be separated to give rise to multiplicity of proceedings."

29. A Division Bench of the Bombay High Court also took a similar view in Marico Industries Ltd v. Sarfaraj Trading Company (2002 (25) PTC 93 [LQ/BomHC/2002/363] ). In paragraph 12 of the said Judgment, it was held as follows:-

"12. In the light of the decided cases, we will examine whether the order passed by the learned single Judge refusing to grant leave under Clause 14 is correct. It is apparent from the order of the learned single Judge that the leave was refused solely on the ground that the respondents are carrying on business at Hyderabad/Secundarbad and grant of leave would cause hardship to them. In our opinion the learned single Judge was in error in refusing leave under Clause 14. The Court should endeavour to avoid multiplicity of litigation and the parties should not be driven from Court to Court on technicalities. In the present case the parties involved are businessmen and we are satisfied that no undue hardship is likely to be caused to the respondents if the appellants are allowed to combine the action of trademark and passing off along with the action of infringement of copyright. In our opinion grant of leave would definitely avoid multiplicity of proceedings and serve the ends of justice."

30. In this connection, a useful reference may also be made to the provisions of Order II Rule 1 and Rule 3 CPC, which read as follows:-

"1. Frame of suit. -- Every suit shall as far as practicable be framed so as to afford ground for final decision upon the subjects in dispute and to prevent further litigation concerning them."

"3. Joinder of causes of action. -- (1) Save as otherwise provided, a plaintiff may unite in the same suit several causes of action against the same defendant, or the same defendants jointly; and any plaintiffs having causes of action in which they are jointly interested against the same defendant or the same defendants jointly may unite such causes of action in the same suit.

(2) Where causes of action are united, the jurisdiction of the Court as regards the suit shall depend on the amount or value of the aggregate subject-matters at the date of instituting the suit."

31. It will be interesting to note that Order II Rule 3 CPC does not require any leave of the Civil Court to combine several causes of action in the same suit. The Code of Civil Procedure contemplates the leave of the Court only if a person entitled to more than one relief, omits to sue for all such reliefs in the same suit, under Order II Rule 2 (3). Therefore, the plaintiff in the present case is entitled to leave under Clause 14 of the Letters Patent, to combine the causes of action relating to infringement and passing off. As I have held earlier, the leave under Clause 14 is not actually a leave but only an order for combining several causes of action and an order for trial of the same in the same suit. Therefore, the application A. No. 1241 of 2006 is allowed.

O.A. Nos. 255 and 256 of 2006:

32. Both these applications are for interim orders of injunction restraining the defendant from using the mark `EYELEX in a manner infringing the registered trade mark of the plaintiff namely EYETEX and for restraining the defendant from passing off their goods under the name EYELEX or any other similar name.

33. As stated earlier, the plaintiff has obtained registration of the trade mark, both as a word mark and as a device mark, in various languages such as English, Tamil, Hindi, Kannada and Telugu. The Legal User Certificates obtained by the plaintiff have been filed as document Nos. 2, 3, 4, 5, 6, 7 and 8. The word mark of the plaintiff is "EYETEX". The mark sought to be used by the defendant is "EYELEX". Therefore, even if the word "EYE" is isolated, as a generic term, the remaining part of the word "TEX" will have to be compared with the word "LEX", used by the defendant.

34. In Indo Pharma Pharmaceutical Works Ltd v. Citadel Fine Pharmaceuticals Ltd., 1998 (2) L.W. 646 : 1998 PTC (18) 775(Mad)(DB), a Division Bench of this Court considered the words "ENERJEX" AND "ENERJASE" and held that the word "ENERG/J" was a generic term used as a prefix and that the remaining words JEX and JASE are not deceptively similar. Similarly, the Apex Court considered the words "MICROTEL" and "MICRONIX" in J.R. Kapoor v. Micronix India, 1994 Supp. (3) SCC 215 : 1994 (14) PTC 260 (SC) [LQ/SC/1994/732] and held that all persons using micro chip technology are entitled to use the word "MICRO" as a prefix and that the remaining words TEL and NIX are not deceptively similar.

35. Applying the ratio laid down in these Judgments, it is seen that the common denominator between the applicants Mark and the respondents Mark viz., "EYE", cannot give leverage to the applicant to contend that the Marks are similar. Therefore, the other parts of both the word marks, after leaving out the generic portion of the same, will have to be compared, to decide the issue. If so done, it would be seen that the word "TEX" and "LEX" are deceptively similar. The phonetic similarity between the word "TEX" and "LEX" are so striking that a man (woman) of average intelligence and imperfect recollection could easily get deceived. Therefore, the plaintiff, as the Proprietor of a registered mark, is entitled to the protection guaranteed under Section 28 of the Trade Marks Act, 1999.

36. The defendant has taken a defence that the adoption of the trade mark "EYELEX" by the defendant, is in respect of the goods falling under Class 5 (eye lotion, pharmaceutical preparations) and that therefore, the registration of the plaintiffs mark in respect of goods under Class 3, will not confer a right upon them, to seek an injunction against the defendant. But it is too late in the day, for the defendant to take such a plea, in view of Section 29 (4) of the Trade Marks Act, 1999. Sub-section (4) of Section 29 confers a protection against infringement, even if the adoption of the mark is in respect of dissimilar goods. From the pleading in the plaint and the documents filed by the plaintiff, I am satisfied that the conditions laid down under Clauses (a) (b) and (c) of sub-section (4) of Section 29 are satisfied by the plaintiff. The plaintiff is the registered Proprietor of the mark. The defendants mark has a striking phonetic similarity with the registered mark of the plaintiff. The plaintiff has been in the business for the past over 50 years and the statistics relating to turnover and expenditure on advertisement and publicity furnished in the plaint, show that the plaintiff has a reputation in India and the use of the mark by the defendant would be detrimental to the reputation of the registered trade mark. The defendant has not chosen to come up with any explanation as to how he chose to adopt a similar mark. He has not even chosen to claim that there was any honest concurrent use or that he is entitled to protection under any of the saving clauses. Therefore, I am of the considered view that the plaintiff is entitled to an injunction as prayed for.

37. Since the Proprietor of a registered trade mark, is entitled to a statutory protection, the balance of convenience is certainly in favour of the plaintiff. If, despite being a registered Proprietor, the plaintiff is refused an injunction, the plaintiff would suffer irreparable loss and injury. As held by the Supreme Court in Midas Hygiene Industries Pvt Ltds case 2004 (28) PTC 121 [LQ/SC/2004/103] , "in cases of infringement either of trade mark or of copyright, normally an injunction must follow" and "the grant of injunction also becomes necessary if it prima facie appears that the adoption of the mark itself was dishonest".

38. Therefore both the applicants for injunction O.A. Nos. 255 and 256 of 2006 are allowed.

*******************

Application praying that this Hon`ble Court be pleased to reject the plaint in C.S. No. 221 of 2006 on the file of this Honble Court.

These applications having been heard on 12.6.2007 in the presence of Mr. C. Daniel, Advocate for the applicant in O.A. Nos 255 and 256 of 2006 and A. No. 1241 of 2006 and for the respondent in 3704 of 2006 and Mr. Satish Parasaran, Advocate for the respondent in O.A. Nos. 255 and 256 of 2006 and A. No. 1241 of 2006 and for the applicant in A. No. 3704 and 2006 and upon reading the Judges summons and affidavit of T. Devanathan filed in O.A. 255 of 2006 and the Judges summons and affidavit of T. Devanathan filed in O.A. 256 of 2006 and the Judges summons and affidavit of T. Devanathan filed in A. No. 1241 of 2006 and the Judges summons and affidavit of Indranil Chatterjee Additional affidavit of Indranil Chatterjee and the counter affidavit of T. Devanathan, filed in A. No. 3704 of 2006 and the plaint filed herein and having stood for consideration till this day and coming on this day before this Court for orders in the presence of the said advocates for the parties hereto and this Court observing that this not a case covered by Clause 12 the letter patent but a case covered by Section 134(2) of the Trade Marks Act, 1999 and hence this Court holding that the suit is maintainable on the file of this Court.

It is ordered as follows:

1. That Hahnemann Laboratory Pvt. Ltd., the respondent/defendant in O.A. 255 of 2006 by itself, its servants, agents, distributors or anyone claiming through or under them be and is hereby restrained by an order of interim injunction till the disposal of the suit from manufacturing, selling advertising and offering for sale using the Trade Mark EYELEX upon the goods or in any media and use the same in invoices, letter heads and visiting cards or by using any other trade mark which is in anyway visually, phonetically or deceptively, similar to the Applicants Registered Trade Mark EYETEX or in any manner infringing the Applicants Registered Trade Marks Nos. 124824, 271583 & 296914 in class 3.

2. That Hahnemann Laboratory Pvt. Ltd. the respondent/defendant in O.A. 256 of 2006 by themselves, their servants, agents men or anyone claiming through them be and is hereby restrained by an order of interim injunction till the disposal of the suit from manufacturing, marketing, distributing, offering or advertising for sale eye lotion using the Mark EYELEX or similar sounding names in the course of their business and pass of their Eye lotion using the Trade Mark EYELEX as and for the EYETEX goods of the applicant or enable others to pass off.

3. That the A. No. 1241 of 2006 to combine the cause of action passing off along with the cause of action for infringement of registered trade mark be and is hereby allowed.

4. That the A. No. 3704 of 2006 do stand dismissed.