PINAKI CHANDRA GHOSE, J. ( 1 ) THE Court: The suit and the interlocutory application have been filed by the petitioner for restraining the respondents from - (i) infringing the registered design No. 165256 of the petitioner in respect of bottles. A copy of the said registration is at page 15 of the petition. (ii) passing off its products and/or business as that of the petitioner by using the shape, configuration, size and get-up of the containers/bottles. ( 2 ) BOTH the petitioner and the respondent No. 1 are manufacturing shampoos and other cosmetics items. The petitioner sells its products under its mark 'ayur'. The respondent No. 1 sells its products under its own mark 'coronation'. The range of the petitioner's products in bottles of its registered design is at page 13 of the petition. The range of the products of the respondent No. 1 in its own bottles will appear from annexure appearing at page 54 of the petition. ( 3 ) ACCORDING to the petitioner, the petitioner is engaged in the business of manufacture and marketing of cosmetics, shampoos and lotions since about the year 1984. According to the petitioner, the petitioner developed a new design of the containers/bottles for its aforesaid shampoos and lotions bearing the trademark AYUR in or about beginning of the year 1993. The petitioner duly obtained the registration in respect of the said design in or about 2nd February, 1993 and started selling its products in containers bearing the registered design from 1993 onwards. According to the petitioner, it acquires substantial reputation and goodwill in the cosmetics market. In April, 1998 the petitioner learnt that the respondent No. 1 selling shampoos and lotions in containers bearing a design identical to that of the petitioner. The petitioner duly instituted proceedings for infringement of its registered design against the defendants before the Delhi High Court which is pending. Subsequently, the petitioner came to learn that the defendant had obtained registration of the said design. The petitioner had filed application before the Delhi High Court which is also pending. ( 4 ) MR. Sarkar, learned Senior Counsel appearing on behalf of the petitioner contended that the respondent's design and/or shape of the bottles bearing its product is an obvious and/or fraudulent imitation of the petitioner's registered design constituting an action for infringement as well as passing off. ( 4 ) MR. Sarkar, learned Senior Counsel appearing on behalf of the petitioner contended that the respondent's design and/or shape of the bottles bearing its product is an obvious and/or fraudulent imitation of the petitioner's registered design constituting an action for infringement as well as passing off. He further contended that the shape of the bottles bearing its product is identical and/or deceptively similar. They have also followed the similar colour combination and the similar trade dress/get up and further the label design has also been similar to that of the petitioner. ( 5 ) LEARNED Counsel further relied the judgments reported in 70 RPC 259, (1990) 1 All E. R. 873 (Reckitt and Colman Products Ltd. v. Borden Inc. and Ors.), (Glaxo Operations UK Ltd. v. Middlex (England) and Ors. v. Samrat Pharmaceutical), 4 RPC 492, 1996 PTC 202 and 1999 PTC 757 in support of his contention. ( 6 ) ACCORDING to him, the petitioner is the prior user of the design since 1993. He further relied upon a judgment. ( 7 ) HE further contended that possibility of confusion and/or deception among customers of average intelligence and imperfect recollection will not be able to distinguish minor differences in the design, shape or get up of the two bottles. Respondents passing off their products as those of the petitioners by taking advantage of this factor. In support of such submission he relied upon the judgments (Simatul Chemical Industrial Private Ltd. , Nandeshari v. Cibatul Ltd. , a Company, Atul), 1998 PTC 1 . ( 8 ) HE further contended that the differences in the names and/or labels of the two products is not relevant. He further drew my attention to the Designs Act, 2000 and contended that the provisions of the Designs Act relate to shape and configuration. The petitioner relying on the provisions of the Designs Act in the instant proceedings submitted that overall similarity of get up constitutes an action for passing off. In support of such submission he also relied upon the judgment Vicco Laboratories, Bombay v. Hindusthan Rimmer, Delhi ). ( 9 ) HE further submitted that substantial goodwill and reputation of the products of the petitioner and the customers associate the particular product design with the goods of the petitioner. In support of such submission he also relied upon the judgment Vicco Laboratories, Bombay v. Hindusthan Rimmer, Delhi ). ( 9 ) HE further submitted that substantial goodwill and reputation of the products of the petitioner and the customers associate the particular product design with the goods of the petitioner. He further contended that the respondents taking advantage of the petitioner's goodwill to pass off their products as those of the petitioner's. In support of such submission he relied upon a judgment reported in (1990) 1 All E. R. 873 (supra ). ( 10 ) HE also contended that the allegations made by the respondent in the opposition relating to stay of suit. Respondent has not filed any proceedings under Section 10 of the Code of Civil Procedure. The instant application is a combined action of infringement as well as passing off whereas proceedings before the Delhi High Court is an action for infringement only. He further contended that there is no bar under Section 10 of the Code relating to interlocutory proceedings. In support of such contention he relied upon a judgment reported in AIR 1922 Bom. 276 (Senaji Kapurchand and Ors. v. Pannaji Devichand ). ( 11 ) HE further contended that as soon as there is infringement, injunction should follow. In support of such contention he relied upon a judgment. He further relied upon another judgment (Accountant General, Andhra Pradesh and Anr. v. Md. Abdul Rahman Khan) and contended that every infringement creates a fresh cause of action. ( 12 ) LEARNED Counsel appearing on behalf of the defendants contended that the petitioner had filed a suit in Delhi High Court for infringement of the said registered design No. 165256 as also for passing off. The petitioner failed to obtain any injunction against the respondent No. 1. He also drew my attention to the copy of the plaint filed before the Delhi High Court. According to him, the respondent No. 1 had obtained registration of a design of a bottle which is being used for marketing its product and it has a registration No. 174603 dated August 29, 1997. He further contended that the petitioner specifically stated that the petitioner has filed an application for cancellation of the registered design of the respondent No. 1 in the Delhi High Court. No order has been passed by the Delhi High Court on the said application. He further contended that the petitioner specifically stated that the petitioner has filed an application for cancellation of the registered design of the respondent No. 1 in the Delhi High Court. No order has been passed by the Delhi High Court on the said application. ( 13 ) THE petitioner has also suppressed the facts that the respondent No. 1 had also filed an application for cancellation of the petitioner's registered design No. 165256 in the Delhi High Court being CO. 23 of 1998 which is also pending. He further contended that the petitioner had due knowledge since April, 1998 about the use of the bottles in question by the respondent No. 1. ( 14 ) HE further contended that from a comparison of the respective bottles of the petitioner with those of the respondent No. 1 it will be evident that the designs of the respective bottles of the two and their respective labels, colour schemes and get-ups are substantially different and that there is and can be no possibility of any confusion in the minds of the purchasers. ( 15 ) HE further submitted that the respondent No. 1 is marketing its products in bottles/containers incorporating its own registered design No. 174603, which is valid and subsisting. He also contended that the manufacture and sale of its products by the respondent No. 1 in bottles/containers is in exercise of its statutory right granted under the Designs Act and the same is lawful. The respondent No. 1 cannot be restrained from marketing its products in bottles/containers incorporating its own registered design so long as the registration subsists. ( 16 ) HE further contended that a comparison of the labels, designs, colour schemes and get-ups of the plaintiff and the defendants will go to show that the designs of the said respective bottles are different. The petitioner sells its products under its own mark 'ayur' and the respondent No, 1 sells its product under the mark 'coronation'. Apart therefrom the trade dress of the bottles of the petitioner and the respondent No. 1 are different and there cannot be any passing off in the facts and circumstances of this case. ( 17 ) I have heard the parties. Apart therefrom the trade dress of the bottles of the petitioner and the respondent No. 1 are different and there cannot be any passing off in the facts and circumstances of this case. ( 17 ) I have heard the parties. I have duly considered the judgments cited before me by the learned Counsel appearing for the parties and I have also considered the further fact that the petitioner has also filed a suit before the Delhi High Court and could not get any interim order almost on the same ground. The petitioner further applied for cancellation for the registration of the respondent No. 1 which is also pending before the Delhi High Court and the application also filed by the respondents has not yet been decided by the Delhi High Court and the same is pending. The petitioner has also applied for cancellation of the registered design of the respondent No. 1 before the Registrar which is also pending has to be taken into account to decide this interlocutory application. After taking into all these questions of facts I do not have any hesitation to pass any interim order on this application excepting I direct the respondent to maintain the accounts in respect of its sells until the suit is decided. The suit is expedited. The written statement shall be filed with 8 (eight) weeks after the Summer Vacation, cross-order for discovery 2 (two) weeks thereafter, inspection forthwith and the suit will appear in the prospective list 12 (twelve) weeks thereafter in the prospective list.