1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY O. O. C. J. Notice of Motion No.83 of 2007 IN Suit No.40 of 2007 Rhea J. Laji. ... ... Plaintiff v/s. Vinjay Khanna & anr. ... ... Defendants Ms.Mamta Sadh i/by Ms.Vanita Kakar for defendants. Plaintiff's Advocate absent. ---- CORAM : SMT.ROSHAN DALVI, J. Dated : 28 th March 2008 P.C. : 1. The plaintiff has sued for protection of the plaintiff's trademark claimed by her. The trademark of the plaintiff is stated to be “H2O”. The plaintiff further claims that the said mark is an artistic work, commissioned by the plaintiff for consideration and has been assigned to her in perpetuity. The plaintiff has licensed the said work to her husband who runs a business of selling garments as shown in the mark. 2. The plaintiff as well as her husband and defendant No.1 are stated to be friends. They are in similar business. 2 3. Defendant No.1 claims use of the trademark “another H2O”. Consequently, there is a slight difference in the trademark claimed by the parties. The plaintiff's case is that the defendants' trademark is deceptively similar to her trademark and causes loss to her business. 4. It is the defendants' case that the plaintiff has acquiesced in the user of the defendants' trademark and, in fact, the husband of the plaintiff supported the defendants' business. The defendants opened their shop on 5.10.2005. The plaintiff's husband is shown to have been present on that day in the premises of the defendants. The defendants have relied upon certain photographs which are stated to be taken on that day showing, inter alia, the plaintiff's husband, along with defendant No.1. In the affidavit- in-rejoinder to the shorter affidavit filed by the defendants, the plaintiff has admitted the presence of the plaintiff's husband but contends that the photographs were maliciously taken. Consequently, the case of acquiescence is prima facie made out by the defendants. The garments of the defendants duly show the label along with their trademark in the photographs. 5. The defendants contend and have shown that the plaintiff's trademark is not registered. The averments in paragraph 8 3 of the plaint show that the application for registration made by the plaintiff is itself withdrawn. The defendants' application for registration of their trademark is pending. Though the defendants' shop was opened on 5.10.2005 and the trademark has been used by the defendants, to the knowledge of the plaintiff, the Suit has been filed on 14.12.2006 and is, therefore, grossly delayed for reliefs in an action against passing off. 6. The plaintiff has been refused ad- interim relief. No prima facie case for passing off is made out by the plaintiff. The plaintiff's claim, if any, would be required to be determined only at the time of recording evidence. 7. There shall be no order on the Notice of Motion. No order as to costs. (SMT.ROSHAN DALVI, J.)