1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO.173 OF 2011 IN NOTICE OF MOTION NO.3527 OF 2010 IN SUIT NO.3140 OF 2010 United Spirits Ltd. .. Appellant (Org.Defendant) V/s Pernod Richard India Pvt.Ltd. .. Respondent (Org.Plaintiff) Mr.Aspi Chinoy, Senior Advocate with Mr.S.U.Kamdar, Senior Advocate and Mr.Ashish Kamat i/by M/s.Bharat Shah & Co.for the Appellant. Mr.Iqbal Chagla, Senior Advocate i/by H.W.Kane & Co.for the Respondent. CORAM: D.K.DESHMUKH & R.G.KETKAR, JJ. DATE: 14th June, 2011 P.C: 1. This appeal takes exception to the order passed by the learned Single Judge granting ad-interim order in favour of the Respondent-plaintiff, restraining the Appellant- Defendant from using the label, copy of which is at Exhibit `L' to the plaint. It appears from record that the Appellant-Defendant is selling its liquor using two labels, copy of one label is at Exhibit `K' and copy of the other label is at Exhibit `L'. The learned Single Judge has granted ad-interim injunction order in relation to the label at Exhibit `L' only. No order of temporary injunction has been made in relation to the label at Exhibit `K'. The Appellant-Defendant therefore can continue to sell the same liquor using the label at Exhibit `K'. 2 2. The Appellant-Defendant has been using the label at Exhibit `K' from June 2010 and he started using label at Exhibit `L' from October, 2010. Ad-interim order has been made by the learned Single Judge in February, 2011 and that order is operating since then. Learned counsel for the Appellant-Defendant submits that the label mark "Band Master Blend" was registered by the Appellant-Defendant in the year 1943. Learned counsel submits that the adoption of the label mark by the Respondent-Plaintiff in the year 1995 is dishonest. According to the learned counsel the fact that within a day the Respondent-plaintiff got reply to the search enquiry shows that the adoption of the label mark is dishonest. Learned counsel submits that as the adoption of the label mark is dishonest, the learned Single Judge should not have granted ad-interim temporary injunction in favour of the Respondent-plaintiff. 3. We have heard learned counsel appearing for the appellant in detail. He relied upon the following judgments:- 1) Sun Pharmaceutical Industries Ltd.V/s.Cipla Ltd., 2007 (34) PTC (Bom.). 2) Khoday Distilleries Limited V/s.Scotch Whisky Association & Ors., (2008) 10 SCC 723. 3) Schering Corporation & Anr. V/s. United Biotech (P) Ltd. & Anr., 2011 (1) Bom.C.R.89. 4. In our opinion, it is not necessary for us to deal with the submissions made by learned counsel for the Appellant-Defendant on merits because, according to us, the appeal cannot be entertained because it challenges the order granting the ad-interim injunction in relation to only one label. The Appellant-Defendant was doing business on the basis of two labels and there is no temporary injunction granted in relation to the other label. Though there are some invoices produced on record, learned counsel 3 for the Appellant-Defendant was not able to show any averment in the affidavit filed by the Appellant-Defendant as to what is the volume of business done by the Appellant-Defendant on the basis of label at Exhibit "L". The Appellant-Defendant had abandoned using the label mark from 1995 and though the Respondent-plaintiff adopted that mark in 2005 and has been using it extensively, the Appellant- Defendant has chosen not to object to it. In our opinion therefore it is safe to assume atleast at this stage that the Appellant-Defendant was not interested in doing the business on that mark atleast till June 2010. We have been informed that the Respondent-plaintiff is now the registered owner of that mark. Though the application of the Respondent-plaintiff was advertised for registration of the mark, the Appellant-Defendant did not even object to the registration of the mark. 5. Taking overall view of the matter, therefore, in our opinion, there is no reason for us to interfere with the well-considered order passed by the learned Single Judge. The order has been made at the ad-interim stage and it has been operating for four months and the notice of motion is still pending. Appeal therefore cannot be entertained. Appeal is rejected. 6. It is made clear that the notice of motion will be decided finally, obviously on its own merits on the basis of material produced before the learned Single Judge, without being influenced by the observations made at the ad-interim stage. 7. In view of disposal of Appeal, Notice of Motion No.776 of 2011 is dismissed. (R.G.KETKAR, J.) (D.K.DESHMUKH, J.)