JUDGMENT S.C. Dharmadhikari, J. This Notice of Motion for interim relief has been moved by the plaintiffs in a suit in which the principal relief is of permanent injunction restraining the defendants from in any manner using in relation to any toothpaste, toothpowder or toothbrush the impugned marks "Miswak/Meswak" by itself or in combination with the word "Taj" or any other word or any other deceptively similar mark so as to infringe plaintiffs' registered trade marks and similarly for a perpetual injunction so as to restrain passing of the goods of the defendants as that of the plaintiffs. The Plaintiffs' case is based on the fact that they are the successors in title of M/s. Balsara Hygiene Products Limited. The business of the company is to manufacture, market and sell oral and hygiene care products and allied goods. What the plaintiffs have asserted is that their right is also based on the order passed by the Delhi High Court in a Company Petition sanctioning and approving the merger of Balsara Hygiene Products with plaintiffs with effect from 1st April 2006. 2. What the plaintiffs have stated is that they are registered proprietor of word mark Meswak and/or Miswak. They are further registered proprietors of label mark of which the essential features are the same words "Meswak and/or Miswak". The plaintiffs have filed prescribed form TM-24 as a request to register them as a subsequent proprietor of a mark upon the devolution of title of the trademarks Miswak/Meswak in view of the merger of Balsara Hygiene Products -- original proprietor of the trademark with the plaintiffs and the terms thereof. After relying upon copies of this application and the acknowledgement thereof what is contended is that the first defendant is a company incorporated under Indian Companies Act, 1956 and carries on business of manufacturing, marketing, selling and exporting, inter alia, toothpaste and other allied products. The defendant No. 2 is a registered entity and/or organised according to the Laws of Morocco and is carrying on business of marketing and distribution of toothpastes, tooth brushes etc. in Morroco. 3. In paras 7, 9, 10, 11 and 12 of the plaint, this is what is stated:- 7. Defendant No. 2 is procuring and selling toothpaste manufactured by defendant No. 1 in India for sale in Morocco. in Morroco. 3. In paras 7, 9, 10, 11 and 12 of the plaint, this is what is stated:- 7. Defendant No. 2 is procuring and selling toothpaste manufactured by defendant No. 1 in India for sale in Morocco. The trademarks used in respect of such toothpaste, which are manufactured by defendant No.1 infringe the plaintiffs' registered trademarks "Meswak" and "Miswak" as mentioned hereinafter. Defendant No.1 is applying the impugned trademarks "Meswak" to the toothpaste manufactured for sale in India and "Taj Meswak" to the toothpaste which are exported by defendant No.1 to defendant No. 2 and other party/ parties like AHL YASSIR; Mekah/Jadah/Hijaz Center, which is evident from the packaging of Taj Meswak which bears the name of the manufacturer as "BHPL, Changodar, Ahmedabad" and the manufacturing license No. GC/990. The defendant No. 1 manufacturing Taj Meswak under manufacturing license No. GC/990 dated 31.5.2007 granted by the Joint Commissioner (Drugs), Food and Drugs Control Administration, Ahmedabad, State of Gujarat, pursuant to the defendant's application with the list of ingredients dated 31.5.2007. The use of the impugned trademark Meswak and Taj Meswak amounts to infringement of the plaintiffs registered trade marks Miswak and/or Meswak and the use thereof amounts to passing off the goods of the defendants as and for the goods of the plaintiffs. The acts of infringement of trademarks and the acts of passing off are committed in India by defendant No. 1 at the instance of defendant No. 2. The aforesaid conduct of defendant No. 2 of procuring the goods bearing the impugned trade mark Taj Meswak manufactured by defendant No. 1 is a dishonest conduct on the part of the defendant No. 2. The defendant No. 2 was a distributor of the plaintiffs and was selling the plaintiffs' toothpaste under the trade mark "Miswak" until October 2007. The defendants have therefore dishonestly adopted the said trade marks 'Meswak" and "Taj Meswak" on the toothpaste only with a view to trade on the goodwill and the reputation of the plaintiffs. 9. The plaintiffs are the registered proprietors of the word mark "Miswak" in respect of toothpaste, toothpowder and dentifrices and other products falling in class 3 of the Schedule to the Trademark Rules, which registration was obtained by the plaintiffs on 10th September 1993 under Registration No. 606419. The said registration is valid and subsisting. 10. 9. The plaintiffs are the registered proprietors of the word mark "Miswak" in respect of toothpaste, toothpowder and dentifrices and other products falling in class 3 of the Schedule to the Trademark Rules, which registration was obtained by the plaintiffs on 10th September 1993 under Registration No. 606419. The said registration is valid and subsisting. 10. The plaintiffs are the registered proprietors of the label mark "Miswak" in respect of toothpaste, toothpowder and dentifrices and other products falling in class 3 of the Schedule to the Trademark Rules. The said registration was obtained by plaintiffs on 16th July 1997 under Registration No. 748262. The said registration is valid and subsisting. 11. The plaintiffs are also registered proprietors of the word mark "AL Miswak" in respect of toothpaste, toothpowder and dentifrices and other products falling in class 3 of the Schedule to the Trademark Rules. The said registration was obtained by plaintiffs on 30th July 1997 under registration No. 749321. The said registration is valid and subsisting. 12. The plaintiffs are the registered proprietors of the word mark "Meswak" in respect of toothpaste, tooth powder and dentifrices and other products falling in class 3 of the Schedule to the Trademark Rules, which registration was obtained by the plaintiffs on 27th March 1998 under registration No. 796732. The said registration is valid and subsisting. 4. Thereafter, what the plaintiffs assert is that they are the Registered proprietors of label mark OUD-AL-Meswak in respect of toothpaste, toothpowder and dentifrices and other products falling in class 3 of the Schedule to the Trademark Rules, which registration was obtained by them on 27th may 1998 and evidenced by Annexure "F". Thus the plaintiffs are the registered proprietors of the trademark Meswak in respect of the toothbrush and other products falling in class 21 of the Schedule to the Trademarks Rules, which registration was obtained on 3rd April 2001 and as evidenced by the Certificate of Registration of the word and label marks Annexures G and H. These registrations are valid and subsisting. Since 1993 till date the plaintiffs have been using the trademark Miswak in respect of toothpaste and reliance is placed on specimen of the carton and photographs of the products. The plaintiffs have also relied upon the artistic work created for them by Artists and details thereof are set out in para 17 of the plaint. Since 1993 till date the plaintiffs have been using the trademark Miswak in respect of toothpaste and reliance is placed on specimen of the carton and photographs of the products. The plaintiffs have also relied upon the artistic work created for them by Artists and details thereof are set out in para 17 of the plaint. Thereafter in paras 18 and 19 what is asserted is that the plaintiffs are using the trademark Meswak for toothpaste since 1998 and the aforesaid label mark and the word mark are associated with the plaintiffs by traders and members of public. The statements of sales are then relied upon, including those evidencing exports and what is then alleged is that in or about November/December 2007, it came to the notice of plaintiffs that the defendant No. 1 was offering its toothpaste under mark Meswak for sale to the general public through its website. 5. In paras 26 to 28 of the plaint, this is what is asserted:- 26. In or about September/October 2007, it came to the plaintiffs' notice that defendant No. 2 was distributing defendant No. 1's toothpaste in Morocco under a label mark "Taj Meswak" with a unique picture of a toothbrush with toothpaste and extract of a drop falling on the toothpaste which was similar to the picture on the plaintiffs' canton. The lettering of the word "Taj Meswak" is in the form oflogd which have a golden outline, which is also similar to the plaintiffs' mark on its toothpaste "Miswak". 27. The plaintiffs, on investigation, have learnt that products bearing the impugned mark "Taj Meswak" were manufactured by defendant No. 1 at their factory as mentioned in the cause title herein. The plaintiffs further learnt that the label marks are affixed by defendant No. 1 in India and defendant No. 1 was exporting the same to defendant No. 2 in Morocco for distribution or sale. The plaintiffs state that the aforesaid conduct of defendant Nos. 1 and 2 using the impugned marks "Meswak" and "Taj Meswak" is dishonest inasmuch as adoption of the impugned label marks in respect of both the products "Meswak" and "Taj Meswak" is conceived in fraud. The impugned marks amount to infringement of the plaintiffs' registered marks "Miswak and Meswak" and amount to passing off goods by defendant Nos. 1 and 2 as and for the goods of the plaintiffs. The impugned marks amount to infringement of the plaintiffs' registered marks "Miswak and Meswak" and amount to passing off goods by defendant Nos. 1 and 2 as and for the goods of the plaintiffs. The defendants, in furtherance of their dishonest intentions, described the same abbreviation "BHPL" to purportedly signify the name of defendant No. 1, which is incidentally the abbreviation of Balsara Hygiene Products Limited. The plaintiffs are filing the present suit to prevent the acts of infringement of trade marks and passing off of the plaintiffs' trademarks. 28. The plaintiffs state that they are the registered proprietors of the word mark "Miswak" and "Meswak" and also the registered proprietors of the label marks of which the word "Miswak" and "Meswak" with the picture of a toothbrush, toothpaste and drop of extract falling, all in a rectangular box, are the essential features. The said defendants have used the word "Meswak" as an essential feature in respect of their toothpaste and as also the picture of toothbrush, toothpaste and drop of extract falling which is similar to and/or deceptively similar to the plaintiffs' word marks and label marks. By using the impugned label marks as shown, the defendants have infringed the plaintiffs' registered trademarks as appearing in the documents annexed. The impugned marks 'Meswak" and "Taj Meswak" of the defendants are deceptively similar to the plaintiffs registered trade marks mentioned hereinabove. The plaintiffs, therefore, submit that they are entitled to a perpetual order and injunction of this Court restraining the defendants by themselves, their servants and agents from in any manner using in relation to any toothpaste, toothpowder and tooth brush or plaintiffs' registered trademarks as appearing in the documents annexed or any other deceptively similar trademarks so as to infringe the plaintiffs' aforesaid registered trademarks. 6. On the above allegations what is pleaded is that the impugned trademarks of the defendants are deceptively similar to the plaintiffs' registered trademarks as also registered label marks which are used on extensive scale. The words Miswak and Meswak form an essential feature of plaintiffs' trademark. By adopting and using the impugned marks, the defendants are passing off and/or enabling others to pass off their goods as that of the plaintiffs. The words Miswak and Meswak form an essential feature of plaintiffs' trademark. By adopting and using the impugned marks, the defendants are passing off and/or enabling others to pass off their goods as that of the plaintiffs. It is on these allegations that the permanent injunction is claimed and in furtherance of the final reliefs an interim application is filed seeking interim reliefs of temporary injunction to restrain infringement and passing off. 7. Upon being served with the papers and proceedings in this suit, the defendants have filed an affidavit in reply in which the principal contention is as under:- 7. It is further submitted that "Miswak" is the name of a tree which is popularly known as "natural toothbrush" or "toothbrush tree" and extract or twigs of which is used for the purpose of oral hygiene and tooth cleansing. That the said tree "Miswak" is known as "Salvadore Persica" in scientific term. The said "Miswak" plant has been used for oral care since several centuries in Ayurveda also. The stick is obtained from Salvadore Persica plant (Miswak) that grows in and around the middle east countries. 8. The following are some of the popular Muslim mythology in respect of "Miswak":- (I) The greatest benefit of using Miswak is gaining the pleasure of Allah. The reward of prayers is multiplied 70 times if Miswak was used before prayer (for mouth cleaning). Several other details are also available in respect of Miswak. It is widely and peremptorily used by Middle East countries having majority Muslim population. The word Meswak is generic and in the public domain for several centuries. However with the change of time, many companies engaged in manufacturing marketing, selling, toothpaste use as one of the ingredient of Miswak tree, because of the popularity and use of Miswak and the austerity in its use. 9. It is submitted that the defendant No. 1 commenced manufacturing and marketing the toothpaste containing extract of Miswak. Further, the applicants received orders from foreign companies particularly from Middle East for manufacturing toothpaste in the brand name "Miswak". That one such company has registration of the trademark as "Taj A1 Miswak" in their name. 8. 9. It is submitted that the defendant No. 1 commenced manufacturing and marketing the toothpaste containing extract of Miswak. Further, the applicants received orders from foreign companies particularly from Middle East for manufacturing toothpaste in the brand name "Miswak". That one such company has registration of the trademark as "Taj A1 Miswak" in their name. 8. There is a rejoinder affidavit of the plaintiffs to the same in which while specifically denying that Miswak and Meswak are generic terms or commonly used words or have been used for last several centuries, what has been specifically contended is that the defendants cannot rely upon the decision of the Commercial Court of Appeal, Casa Blanca, Kingdom of Morocco. A distinction can be made on the basis of the factual material in that decision, inasmuch as, the Commercial Court of Appeal held that addition of words "herbal Miswak" does not constitute an imitation of the mark of the plaintiffs which is likely to induce the public to mistake the product since the defendants' toothpaste is commercialised under the mark Colgate which differentiates greatly from the mark Miswak. In any event, what is contended is that the said decision cannot bind this Court and when it is interpreting the Indian Laws and its own statutory provisions. The plaintiffs have in addition submitted that their registrations are extremely relevant and that there is no question of any acquiescence by the plaintiffs. On the other hand the admission by the deponent in the affidavit in reply, that defendant No. 1 is manufacturing goods under the impugned mark Taj Meswak is a clear case of infringement of plaintiffs' registered trademark. On this ground alone the motion deserves to succeed. It is urged that so long as the plaintiffs registration remains valid and is not displaced by the statutory mechanism, the defendants cannot manufacture and market or sale their goods under subject marks. 9. In the sur-rejoinder affidavit what the defendants have placed on record are details of rectification application u/s 57 of the Trademarks Act, 1999. They have dealt with the arguments of the plaintiffs in rejoinder that no rectification proceedings have been initiated or filed by defendant No. 1. 9. In the sur-rejoinder affidavit what the defendants have placed on record are details of rectification application u/s 57 of the Trademarks Act, 1999. They have dealt with the arguments of the plaintiffs in rejoinder that no rectification proceedings have been initiated or filed by defendant No. 1. After setting out the details of this rectification application what is also alleged is that the registrations have been wrongfully obtained by the plaintiffs and they are not entitled to any interim reliefs since there exist other opposition proceedings filed against the plaintiffs' alleged trademark Miswak/Meswak. A reference is made to an opposition/rectification application filed by M/s. Colgate in this behalf. 10. In para 6 of this sur-rejoinder this is what is stated:- 6. With reference to my averments in paragraph 27 of my affidavit in reply, I say that I have accidentally stated/indicated that defendant No. 1 interalia sells/markets toothpastes locally under the mark Miswak/Meswak. I categorically state that defendant No. 1 has not sold/done business in toothpastes marked Miswak/Meswak in India. I say that the defendant merely manufactures toothpastes in India and all these were exported to various countries, especially in the Gulf. 11. Therefore, it is submitted that the motion be dismissed. 12. It is on this material that I have heard submissions of the learned Counsel appearing for parties. 13. Mr. Chitnis learned Counsel appearing on behalf of the plaintiffs submits that this is a clear case of infringement of trademarks and passing off. Unless authorised by law, any trader who exclusively sells goods bearing somebody else's registered trademark, has no right to adopt trade name, which includes the said trademark and such adoption would amount to both infringement and passing off, is the law laid down by this Court in the case of Poddar Tyres Ltd. Vs. Bedrock Sales Corporation Ltd. and Another, AIR 1993 Bom 237 . He places heavy reliance on this decision also for the proposition that the application for rectification of the registered trademark being made or its mere pendency will not prevent the proprietor of a registered trademark from exercising its statutory rights under the Trademark Act, 1999 or seeking interim reliefs based thereon. 14. Mr. Chitnis submits that the plaint allegations are confirmed and if one has a look at the marks, it would be apparent that the defendants are trying to pass off their goods as that of the plaintiffs. 14. Mr. Chitnis submits that the plaint allegations are confirmed and if one has a look at the marks, it would be apparent that the defendants are trying to pass off their goods as that of the plaintiffs. Mr. Chitnis submits that each of the defences raised have no substance inasmuch as if the alleged artistic work is not at all original and the same is subject to public domain, then, that is an aspect which is clearly raised by the defendant No. 1 in the rectification proceedings. 15. Hence, it is not permissible for the defendants to urge that the words Meswak and Miswak are twigs of certain trees that are used on regular basis by Muslims for centuries to maintain oral hygiene. It is a natural toothbrush. No reliance can be placed on the material that has been referred to and annexed as Exh-5 to the affidavit in reply. It is submitted by Mr. Chitnis that the argument of the defendants is that the plaintiffs cannot have exclusive right over the said trademark as the said words are the name or description of an Article used in a descriptive sense. In para 20 of the affidavit in reply, the defendant No. 1 has stated that it is in the process of challenging validity of the Registration of the trademarks. At the same time, it is conceded that defendant No. 2 is procuring and selling toothpaste manufactured by defendant No. 1 at Ahmedabad (India) and the said goods are sold in Morocco. Once the first defendant raises a plea that the entries in the trademark register in favour of the plaintiffs are wrongly made and ought to be removed and they refer to section 57 of the Act, then, all the more until the Registrar of Trademark accepts this version of the defendants, there is a clear case of infringement and passing off. Mr. Chitnis has invited my attention to the plaint and para 22 of the affidavit in reply in this behalf. Mr. Chitnis submits that this Court has granted ad-interim order on 25th August 2008 and there is no cause shown for vacating the same. 16. Mr. Mr. Chitnis has invited my attention to the plaint and para 22 of the affidavit in reply in this behalf. Mr. Chitnis submits that this Court has granted ad-interim order on 25th August 2008 and there is no cause shown for vacating the same. 16. Mr. Chitnis has submitted that paras 9 to 16 of the plaint would reveal that the plaintiffs have made good their case of being registered proprietor of word mark Miswak in respect of Toothpaste, toothpowder and other allied oral care products falling in class 3 of schedule to the Trademark Rules, 2002. The said registration is valid and subsisting. Similarly, there is a registration, which is valid and subsisting, in relation to the label mark. The plaintiffs have also brought material on record to show that they have a valid title and right to the trademark Meswak. In such circumstances and when none of the averments in this behalf have been denied and prima facie the plaintiffs have shown as to how defendant No. 2 was aware of the existence of plaintiffs, their claim of being a registered proprietor, yet, brazenly the impugned acts are continued, then, all the more this is a fit case for confirmation of ad-interim reliefs. 17. Mr. Chitnis has invited my attention to paras 25 to 28 of the plaint and has contended that insofar as temporary injunction is concerned, the plaintiffs have, from the acts which are undisputed, pointed out that the impugned trade marks of the defendants are deceptively similar to the plaintiffs' trademark as also registered label marks. These marks are used by the plaintiffs on extensive scale and the word Meswak and Miswak form essential feature of the plaintiffs trademark. By adopting and using impugned trademark which are deceptively similar to the plaintiffs' aforesaid registered trademark, the defendants have, therefore, infringed the plaintiffs' trademarks and are also passing off their goods as that of the plaintiffs. 18. Mr. Chitnis has invited my attention to the written statement and affidavit in reply and has contended that none of the averments which have material bearing on the case of the plaintiffs have been denied. All that is urged is that the plaintiffs' registration has been wrongfully obtained and by misleading Registrar of Trademarks. Remedy for the same is elsewhere and that is well established and statutorily recognised. All that is urged is that the plaintiffs' registration has been wrongfully obtained and by misleading Registrar of Trademarks. Remedy for the same is elsewhere and that is well established and statutorily recognised. Until the defendants resort to that remedy successfully, they cannot resist the claim of the plaintiffs by merely stating that the defendants have used in relation to the toothpaste, the mark Bajaj Meswak and Taj Meswak. That does not mean that there is no case for infringement and passing off. For all these reasons, he submits that this application should succeed. 19. Mr. Chitnis has relied upon the following two decisions rendered by two learned Single Judges of this Court:- (I) Poddar Tyres Ltd. Vs. Bedrock Sales Corporation Ltd. and Another, AIR 1993 Bom 237 (II) Ultra Tech Cement Ltd. v. Alaknanda Cement Pvt. Ltd. and Anr. (Notice of Motion No. 1183 of 2009 in Suit No. 743 of 2009 -- dated 28th June 2011) 20. On the other hand, Mr. Kamath learned Counsel appearing for defendants has urged that the plaintiff cannot succeed and are not entitled to any interim relief. He has taken me through the Annexures to the affidavit in reply and has submitted that the root of a tree known in Arabic as Arak (Salvadora Persica) also known as Arak Tree or the "Peelu tree" is recommended for oral health care and hygiene. There are historical references to the Miswak and it has been found in several works related to Islam and culture of Muslims. Mr. Kamath strongly urges that what has been in circulation and public domain is a fact that Miswak is natural toothbrush cum tooth paste and the Arack tree grows in Saudi Arabia and Sudan, southern Egypt, Chad and eastern parts of India. In other parts of the Muslim world where the arak tree is not found, other trees are used for the same purpose. The strips of bark are used in Morocco and Neem tree in India. Mr. Kamath, therefore, submits that Miswak is predominantly used in Muslim world but its use predates the inception of Islam, it is also known as Kayu Sugi (chewing stick). It is often mentioned that Prophet Mohammed himself recommended its use. In such circumstances, there is absolutely no case made out of any infringement. Mr. Mr. Kamath, therefore, submits that Miswak is predominantly used in Muslim world but its use predates the inception of Islam, it is also known as Kayu Sugi (chewing stick). It is often mentioned that Prophet Mohammed himself recommended its use. In such circumstances, there is absolutely no case made out of any infringement. Mr. Kamath, therefore, submits by relying upon the affidavits filed in reply and the material that is referred to in the said affidavits as also the written statements, that no case is made out for grant of interim reliefs. The motion, therefore, be dismissed. 21. Mr. Kamath's arguments on the applicability of the principles laid down in the case of Bedrock (supra) and Ultratech (supra) both of which are relied upon by Mr. Chitnis need to be noted. Mr. Kamath has endeavoured quite strenuously to point out that these decisions are per incuriam. He submits that these judgments do not lay down the correct law, if at all, the principle that is laid down therein is stated to be absolute. He submits that it cannot be an absolute proposition that an Interim application cannot be resisted by parties like defendants by urging that the word or the label mark are in relation to descriptive material. There is nothing unique and distinctive about the same. Once historical material is placed before the court in support of the plea that such words and labels are in public domain, then, all the more the applications of present nature can be resisted and it is not the law that the defendants and parties like them have to approach the Registry of Trademark for rectification of the Register. In other words, that alone is their remedy, is not a sound proposition of law. 22. In support of these submissions, Mr. Kamath has relied upon the following decisions:- (I) Three-N-Products Private Limited Vs. Emami Limited, (2008) 4 CHN 608 (II) Hindustan Embroidery Mills Pvt. Ltd. Vs. K. Ravindra and Co., (1974) 76 BOMLR 146 (III) Biochem Pharmaceutical Industries and Another Vs. Biochem Synergy Limited, (1997) 99 BOMLR 538 (IV) Marico Limited Vs. Agro Tech Foods Limited, (2010) 174 DLT 279 (V) Cadila Healthcare Ltd. Vs. Gujarat Co-operative Milk Marketing Federation Ltd. and Others, (2010) 2 ILR Delhi 85 (VI) R.J. Reynods Tobacco Company Vs. K. Ravindra and Co., (1974) 76 BOMLR 146 (III) Biochem Pharmaceutical Industries and Another Vs. Biochem Synergy Limited, (1997) 99 BOMLR 538 (IV) Marico Limited Vs. Agro Tech Foods Limited, (2010) 174 DLT 279 (V) Cadila Healthcare Ltd. Vs. Gujarat Co-operative Milk Marketing Federation Ltd. and Others, (2010) 2 ILR Delhi 85 (VI) R.J. Reynods Tobacco Company Vs. Indian Tabacco Company Ltd., (1987) 1 ARBLR 156 (VII) Notice of Motion No. 1183 of 2009 in Suit No. 743 of 2009 dated 28th June 2011 (S.J. Kathawalla, J) (Ultra Tech Cement Ltd. v. Alaknanda Cement Pvt. Ltd. and Anr.) (VIII) Reports of Patent, Design and Trademark Cases (No. 6) Vol. LVII page 137 (House of Lords) The Shredded Wheat Co. LD. v. Kellogg Co. of Great Britain Ld. (IX) 950 The Illustrated Official Journal (Patents) (Reports of Patent, Design and Trade Mark Cases) 850 In the Court of Appeal (Orlwoola) (X) Carew Phipson Limited Vs. Deejay Distilleries Pvt. Limited, AIR 1994 Bom 231 23. For properly appreciating the rival contentions what needs to be noted is that there is prima facie no dispute about the Registration of the word and the label mark in favour of the plaintiffs. There is prima facie no dispute that the defendants are in the market from the time that is noted by the plaintiffs and are dealing in identical products and goods bearing similar classification as that of the plaintiffs' goods. Prima facie, there is no dispute that even the exported material of the defendants and the goods that are sold by them in the local and domestic market bears the name of Miswak and Meswak but there are some pre-fixes attached to the same. 24. All through out the case of the defendants is that they have taken necessary and requisite steps so as to have the registration in favour of the plaintiffs cancelled and the Registers rectified in accordance with law. Their entire endeavour is that without any order in the defendants' favour in the rectification proceedings but even during their pendency, the interim application can be resisted by them by pointing out that there is nothing unique or distinctive about the plaintiffs word and label mark, that they have adopted and used the word and label mark based on historical material. That they have not coined it on their own. That they have not coined it on their own. Far from there being any originality attached what the plaintiffs have done is to utilise the popular Islamic concept in the Muslim countries of using Herbal remedies for oral and dental care and hygiene. That such tooth brush and tooth powder made from twigs of the trees referred to above are in vogue and used extensively in Muslim countries has been demonstrated by enough historical material. The website and various search engines available in software all over the world contains enough literature and material about the existence and use of such toothbrush cum toothpowder. In Muslim countries, it has been used for decades together. In these circumstances, this court should not allow any pleas of the nature raised by the plaintiffs but reject them by taking into account such material even if the marks are present on the register. 25. It is not possible to accept this contention. In Poddar Tyres v. Bedrock (supra), an identical contention was raised before this Court. This contention has been dealt with and rejected by His Lordship Mr. Justice B.N. Srikrishna, (as His Lordship then was), in the following words:- 41. Mr. Rahimtoola then contended that Santosh Kumar Poddar has filed an application with the Registrar, in his capacity as a shareholder of the second defendants, for holding that the plaintiffs are not entitled to be the registered proprietors of the trade mark, as the assignment of the proprietary rights in the said trademark by the second defendants to the plaintiffs is invalid. Whatever the worth of the said application, it is not possible to accept the contention that such an application can prevent the registered proprietor from asserting his rights as registered proprietor of the trademark u/s 28 of the Act as long as the trade mark continues on the register. The short answer to the contention is contained in the judgment of Justice Vimadalal of this Court in Hindustan Embroidery Mills Pvt. Ltd. Vs. K. Ravindra and Co., (1974) 76 BOMLR 146, wherein the learned Judge pointed out that it is not the practice of this Court to consider the validity of the registration of a trade mark on a motion for interlocutory injunction taken out by the person who has got the mark registered in his name. K. Ravindra and Co., (1974) 76 BOMLR 146, wherein the learned Judge pointed out that it is not the practice of this Court to consider the validity of the registration of a trade mark on a motion for interlocutory injunction taken out by the person who has got the mark registered in his name. While a mark remains on the register (even wrongly), it is not desirable that others should imitate it. I am unable to accept the contention that the pendency of the rectification application prevents the plaintiffs from exercising the statutory rights under the Trade Marks Act or from seeking interim reliefs based thereupon. 26. Mr. Kamath would fault this reasoning by urging that all that the learned Single Judge has done is to follow the judgment in the case of Hindustan Embroidery (supra). Even that learned single Judge (Hon'ble Mr. Justice Vimadalal) rendered that decision relying upon a practice of this court not to consider the validity of the registration of a trademark on motion for interlocutory injunction taken out by the person who has got the mark registered in his name. Mr. Kamath submits that such a practice has no foundation or basis in law. Therefore, if any practice of a Court is the premise on which a legal principle is based or enunciated, then, that very exercise is impermissible. It is the law which must prevail and no practice adopted by a court, may be for decades together can displace it. It is not possible to accept this contention for more than one reason. Per Incurium is an argument which is easy to make but difficult to substantiate and prove. A decision can be said to be per incurium only if it is rendered in ignorance of a statutory provision or a binding precedent. Nothing of this kind has been urged before me. What is urged is that the line of reasoning adopted by this Court in the two decisions is erroneous because, it is based on practice rather than law. The fallacy in this argument is that the reasoning of both learned Single Judges namely in the case of Hindustan Embroidery as also Bedrock is only founded on the practice adopted by this Court. That is not so if one reads para 41 of the decision in Bedrock's case reproduced above. The fallacy in this argument is that the reasoning of both learned Single Judges namely in the case of Hindustan Embroidery as also Bedrock is only founded on the practice adopted by this Court. That is not so if one reads para 41 of the decision in Bedrock's case reproduced above. The learned single Judge has held in categorical terms that while the mark remains on register (even wrongly), it is not desirable for others to imitate it. Secondly, the contention that pendency of rectification application prevents the plaintiffs from exercising statutory rights under the Trademark Act or seeking interim reliefs based thereupon was canvassed, noted and specifically rejected. That all this cannot be said to be based on a mere prevailing practice adopted by a Court. That the statutory scheme also has accepted this and recognised it by providing specific remedies to challenge the registration. That this is the known course to be adopted is further clear by the acts of these very defendants and they do not deny pendency of rectification proceedings. 27. It is that line of reasoning which is consistently followed by this Court and if any further authority is needed for that purpose, suffice it to note that the principle in Bedrock's case has been followed in the order rendered in M/s. Ultratech (supra) (see para 32). 28. Mr. Kamath has, therefore, taken me through several judgments rendered by High Court of Delhi in the case of Emami Ltd., Marico Limited and Cadila Healthcare Ltd. However, the reliance placed on these decisions and other works which have been brought to my notice from the writings of reputed learned Authors cannot be of any assistance when I cannot displace a binding precedent. 29. Mr. Kamath does not dispute that the above decisions rendered by the learned Single Judges of this Court are binding on me. No amount of argument or pleas, particularly of the nature that important and relevant aspects of this controversy or several facets having vital bearing on the same, have not been taken into account, can persuade me in law to ignore the binding precedent. That would mean acting contrary to the settled canons and principles of judicial discipline. No amount of argument or pleas, particularly of the nature that important and relevant aspects of this controversy or several facets having vital bearing on the same, have not been taken into account, can persuade me in law to ignore the binding precedent. That would mean acting contrary to the settled canons and principles of judicial discipline. To my mind, once there is a valid base for holding that mere pendency of applications of the nature made by the defendants in this case would not mean that the court is prohibited or prevented from considering an application for interim reliefs, at the instance of registered proprietor of the mark, then, that cannot be brushed aside by me unless it is pointed out that the same has not been accepted by higher court or reversed by the Supreme Court. 30. Once such line of reasoning is not disapproved by the Superior Judicial Forum, then, merely because different view is possible is no ground to ignore a binding precedent. It is this vital concern for judicial discipline that makes a Law of Precedent. Mr. Kamath has not pointed out to me any conflicting opinion or view of any learned Judge of this Court either. Once such is not the position, then, in law, I cannot refuse to follow the law laid down in the above decisions, which clearly binds me. 31. The arguments of Mr. Kamath have revolved only around the correctness of the view taken in Bedrock's case and prior thereto in Hindustan Embroidery, He has not dealt with, leave alone, given a satisfactory explanation to the submissions canvassed by Mr. Chitnis, insofar as prima facie case being made out. Even Mr. Kamath's feeble attempt to point out that there is delay on the part of the plaintiffs in approaching this Court has not been carried to such an extent as would enable me to render any finding on the same. Suffice it to note that this is not a case of any inordinate delay or latches. The instant suit has been filed in this Court on 17th January 2008. The impugned acts of the defendants are stated to have taken place in the year 2007. That is how the cause of action accrues, according to plaintiffs for moving this court. That is stated to have arisen in October/November 2007. The instant suit has been filed in this Court on 17th January 2008. The impugned acts of the defendants are stated to have taken place in the year 2007. That is how the cause of action accrues, according to plaintiffs for moving this court. That is stated to have arisen in October/November 2007. In such circumstances, it cannot be said that there is any inordinate delay in approaching this Court. 32. An attempt was made by Mr. Kamath to urge that the plaintiffs are claiming to be in domestic and local market whereas the defendants are trading internationally. They have export obligations and that is how their toothpaste and toothbrush is exported in various countries. Therefore, there cannot be any apprehension and particularly of the nature expressed by the plaintiffs. Once again, Mr. Kamath has not been able to point out anything in law by which one can conclude, even prima facie, that the acts of the defendants, as complained by the plaintiffs do not amount to infringement and passing off. Mr. Kamath has not based his plea on an extreme position that there cannot be any infringement by the acts complained of in law at all. His argument possibly was to support the plea that there is neither balance of convenience nor any irreparable harm and injury is likely to be caused because defendants are predominantly present in the international market. Even on that score, I do not find that the defendants have placed such material as would enable me to render a finding that there is no balance of convenience in favour of plaintiffs or that they will not suffer irreparable harm and injury. In fact in para 47 of the written statement, what the defendant No. 1 has stated is that labels are affixed by defendant No. 1 in India at their factory address in the cause title and the goods are exported to defendant No. 2 in Morocco for distribution and sale. Admittedly, there is no commercial sale in India and there is no passing off committed by these defendants in India. At the same time, it is submitted that trademark "Taj Meswak" is different. There is no similarity alleged or at all between two labels/cartons. Thus, the claim of the plaintiffs is sought to be disputed by both defendants. Admittedly, there is no commercial sale in India and there is no passing off committed by these defendants in India. At the same time, it is submitted that trademark "Taj Meswak" is different. There is no similarity alleged or at all between two labels/cartons. Thus, the claim of the plaintiffs is sought to be disputed by both defendants. Everything that is urged is in relation to grant of wrongful registration to the plaintiffs, (see paras 45 to 47 of the W.S.). Even in paras preceding the same and in para 48 the same thing is repeated that the plaintiffs have dishonestly obtained registration of trademark by misleading Registrar of Trademark. In these circumstances and when there are mere denials with regard to the specific pleas raised by the plaintiffs in the plaint, that I am of the opinion that on all three counts, the plaintiffs deserve to succeed. 33. As a result of the above discussion and pending hearing and final disposal of the suit, the defendants by themselves, their servants, agents are restrained by a temporary order and injunction from in any manner using in relation to any toothpaste, toothpowder, toothbrush the impugned mark "Miswak"/"Meswak" by itself or in combination of the word "Taj" or any other word or any other deceptively similar mark so as to infringe the plaintiffs' registered trademarks. 34. Further, pending the hearing and final disposal of the suit, the defendants by themselves, their servants and agents are restrained by a temporary order and injunction from in any manner using the mark "Miswak"/"Meswak" or by itself or in combination of the word "Taj" or any other word or any other deceptively similar mark with the plaintiffs' registered trademarks so as to pass off defendants' goods as that of the plaintiffs. The Notice of Motion is made absolute in the above terms. In the circumstances and since the arguments canvassed, revolve around some legal issues, there will be no orders as to costs.