ORDER : Pradeep Nandrajog, J. CM No. 43 532 of 2016 Allowed subject to just exceptions. FAO (OS) (COMM) No. 127 of 2016 The grievance of the appellant is to non-grant of an ex-parte ad-interim injunction by the learned Single Judge as prayed for in IA No. 14230/2016 as well as non-appointment of local commissioners as prayed for in IA No. 14231/2016 in CS (Comm.) No. 1512/2016. 2. Summons in the suit and notice in IA No. 14231/2016 has been issued returnable for January 13, 2017. Notice in IA No. 14230/2016 has been issued for December 20, 2016. 3. Learned senior counsels for the appellant urge that in view of the law declared by the Supreme Court in the judgment reported as (2002) 3 SCC 65 , where so telling is the infringement of a trade-mark and/or a trade-dress, injunction must ensue. As observed in paragraph 17 of the decision, in such a case a refusal to grant an injunction in spite of the availability of facts, which are prima facie established by overwhelming evidence and material available on record justifying the grant thereof, occasion a failure of justice and such injury to the plaintiff as would not be capable of being undone at a later stage. 4. In afore-noted decision the Supreme Court was constrained to issue an ad-interim injunction in spite of overwhelming facts shown to the learned Trial Judge but ad-interim injunction not granted. 5. A perusal of the plaint would evince that as per the appellant, as of 2015-2016, the appellant has a market capitalization of around Rs. 2,63,989 crores and a turnover of Rs. 51,582 crores. 6. The appellant's well known trade-mark 'MANGALDEEP' has been in use since the year 1985 by the predecessor-in-interest of the appellant for incense sticks. As per the appellant it has garnered substantial sales over the years leading to widespread popularity and immense reputation and goodwill of the brand 'MANGALDEEP'. 7. As per the appellant it commenced marketing of agarbattis/dhoop in the year 2003-04 under MANGALDEEP and since then the appellant has become one of the leading marketers of high quality incense sticks/agarbattis. That sometime in the year 2006-07 the business was extended to also include Puja dhoops. 8. 7. As per the appellant it commenced marketing of agarbattis/dhoop in the year 2003-04 under MANGALDEEP and since then the appellant has become one of the leading marketers of high quality incense sticks/agarbattis. That sometime in the year 2006-07 the business was extended to also include Puja dhoops. 8. The following essential and distinctive features of the appellant's dhoop/agarbatti products are: a. Appellant is the owner of the well-known and registered mark 'MANGALDEEP'; b. Writing style, colour of brand name and the artistic design in the banner encasing the brand name 'MANGALDEEP'; c. Placement of the mark/name on the packaging; d. Colour Scheme/Get-Up/Layout/overall appearance of the Packaging; e. The words 'Puja Dhoop' printed in white/black below the brand name, image of rose petals placed on the lower right corner of the packaging for Rose puja dhoop, image of Mogra flowers placed on the lower right corner of the packaging for Mogra puja dhoop, and the image of sandalwood/an elephant figurine placed on the lower right corner of the packaging for Sandal puja dhoop and image of woman wearing a saree with her hands folded in a 'Namaste' pose on lower left corner of packaging; 9. It is the case of the appellant that appellant's 'MANGALDEEP' products, due to their excellent quality and extensive publicity, have become very popular and enjoy an invaluable reputation and goodwill. The appellant enjoys substantial turnover from the sale of its products under the brand name 'MANGALDEEP'. The total sales turnover of the products bearing mark 'MANGALDEEP' from the years 2006-07 to 2015-16 are set out hereunder:- Financial year Sales Turnover (In Lakhs) 2006-2007 2699.15 2007-2008 3393.11 2008-2009 4037.86 2009-2010 6083.11 2010-2011 9334.26 2011-2012 13677.26 2012-2013 17679.97 2013-2014 21850 2014-2015 26542.76 2015-2016 29245.61 10. The appellant markets its products all over India. The sales turnover of the appellant's 'MANGALDEEP' puja dhoop sold from the years 2006- 07 to 2015-16 are set out hereunder:- Financial year Sales Turnover (In Lakhs) 2006-2007 171.87 2007-2008 248.82 2008-2009 345.47 2009-2010 684.14 2010-2011 899.48 2011-2012 1512.03 2012-2013 1837.27 2013-2014 3395.3 2014-2015 4574.73 2015-2016 4870.25 11. As per the appellant it has invested a large amount of money and manpower in creating consumer awareness and brand building. The 'MANGALDEEP' trade-mark/trade-dress/label/writing-style/packaging has been widely advertised in the print media including a large number of newspapers and publications. As per the appellant it has invested a large amount of money and manpower in creating consumer awareness and brand building. The 'MANGALDEEP' trade-mark/trade-dress/label/writing-style/packaging has been widely advertised in the print media including a large number of newspapers and publications. As a result, the 'MANGALDEEP' trademark/trade-dress/label/writing-style/packaging enjoys immense reputation, which is identified with the appellant and no one else. With the extensive advertising, the mark and expression is well entrenched in the minds of the general public. The advertising expense of the appellant in respect of the products bearing mark 'MANGALDEEP' from the years 2006-2007 to 2015-16 are set out hereunder :- Financial year Advertising Expense (In lakhs) 2006-2007 504.11 2007-2008 582.02 2008-2009 590.41 2009-2010 679.07 2010-2011 1220.96 2011-2012 1392.05 2012-2013 1553.72 2013-2014 2265.89 2014-2015 2535.3 2015-2016 2687.67 12. It is thus clear from the above that the appellant has earned immense goodwill and reputation for its 'MANGALDEEP' range which is probably, prima facie un-parallelled and prima facie exclusively associated with the appellant alone. 13. As per the appellant it is the registered proprietor of the trademark 'MANGALDEEP' in device and word form. As per the plaint the list of registered marks of the appellant is as below: S.No. Trade Mark App. Date App No. Class 1. MANGALDEEP FRAGRANCE OF TEMPLE 17/12/2009 1897214 [Class : 3] bleaching preparations and other substances for laundry use; cleaning; polishing; scouring; and abrasive preparations; soaps; perfumery; essential oils; cosmetics; hair lotions; dentifrices, incense, agarbattis. 2. MANGALDEEP 16/09/2003 1237216 [Class : 37] building construction, repair, installation services [class : 35] advertising, business management, business administration, office functions [class : 40] treatment of materials. [class : 41] education, providing of training, entertainment, sporting and cultural activities. [class : 39] transport, packaging and storage of goods, travel arrangement. [class : 42] providing food and drink, temporary accommodation ,medical, hygienic and beauty care, veterinary and agricultural services, legal services, scientific and industrial research, computer programming, services that cannot be classified in other classes. [class : 38] telecommunications. [class : 36] insurance , financial affairs, monetary affairs, real estate affairs. 3. 12/11/2003 1249401 [Class : 5] insect repellants in particular mosquito repellants including mosquito coils, mats and the like. 4. 12/11/2003 1249400 [Class : 4] candles 5. 09/07/2002 1117458 [Class : 34] Manufactured tobacco including cigarettes, smokersartiles and safety matches. 6. 02/08/2002 1123577 [Class : 34] tobacco (raw or manufactured), smokers articles, matches including safety matches. 7. 3. 12/11/2003 1249401 [Class : 5] insect repellants in particular mosquito repellants including mosquito coils, mats and the like. 4. 12/11/2003 1249400 [Class : 4] candles 5. 09/07/2002 1117458 [Class : 34] Manufactured tobacco including cigarettes, smokersartiles and safety matches. 6. 02/08/2002 1123577 [Class : 34] tobacco (raw or manufactured), smokers articles, matches including safety matches. 7. 25/6/2004 1292443 [Class : 34] safety matches. 8. 25/10/2004 1316940 [Class : 34] tobacco (raw or manufactured), smokers articles and matches including safety matches and wax matches. 9. 09/07/2002 1117458 [Class : 34] manufactured tobacco including cigarettes, smokers artiles and safety matches. 14. As per the appellant the appending applications of the appellant are as below: S.No. Trade Mark App. Date App No. Class 1. MANGALDEEP (Word) 08/08/2003 1221756 03 2. MANGAL DEEP (Word) 08/08/2003 1221757 03 3. 08/08/2003 1221758 03 4. 08/08/2003 1221759 03 5. 08/08/2003 1221760 03 6. 15/10/2003 1243574 03 7. MANGALDEEP 3 in 1 02/09/2004 1306556 03 8. MANGALDEEP 3 in 1 02/09/2004 1306557 03 9. MANGALDEEP BOUQUET 02/09/2004 1306558 03 10. MANGALDEEP JASMINE 02/09/2004 1306559 03 11. MANGALDEEP SANDALWOOD 02/09/2004 1306560 03 12. MANGALDEEP MADHUR 02/09/2004 1306561 03 13. MANGALDEEP ROSE 02/09/2004 1306562 03 14. MANGAL DEEP (Word) 02/09/2004 1306564 03 15. 13/06/2005 1363455 03 16. MANGALDEEP 3 in 1 13/06/2005 1363456 03 17. MANGALDEEP BOUQUET 13/06/2005 1363457 03 18. MANGALDEEP SANDALWOOD 13/06/2005 1363458 03 19. MANGALDEEP ROSE 13/06/2005 1363459 03 20. MANGALDEEP JASMINE 13/06/2005 1363460 03 21. MANGALDEEP TARANGINI 13/06/2005 1363461 03 22. MANGALDEEP MADHUR 13/06/2005 1363462 03 23. MANGALDEEP MOGRA 13/06/2005 1363463 03 24. MANGALDEEP MOGRA 13/06/2005 1363464 03 25. MANGALDEEP 3 in 1 13/06/2005 1363465 03 26. MANGALDEEP MADHUR 13/06/2005 1363467 03 27. MANGALDEEP 3 in 1 13/06/2005 1363468 03 28. MANGALDEEP MOGRA 13/06/2005 1363469 03 29. MANGALDEEP TARANGINI 13/06/2005 1363470 03 30. MANGALDEEP ANUSHRI 26/07/2005 1373924 03 31. MANGALDEEP 5 in 1 26/07/2005 1373925 03 32. MANGALDEEP DURBAR 26/07/2005 1373926 03 33. MANGALDEEP PUJA DHOOP 19/09/2005 1385692 03 34. MANGALDEEP YANTRA 26/12/2006 1516933 03 35. MANGALDEEP DURBAR GOLD 19/09/2008 1734816 03 36. MANGALDEEP 3 in 1 30/09/2009 1868439 03 37. MANGALDEEP 3 in 1 30/09/2009 1868440 03 38. MANGALDEEP MOGRA 30/09/2009 1868441 03 39. MANGALDEEP MOGRA 30/09/2009 1868442 03 40. MANGALDEEP BOUQUET 30/09/2009 1868443 03 41. MANGALDEEP BOUQUET 30/09/2009 1868444 03 42. MANGALDEEP 5 in 1 30/09/2009 1868445 03 43. MANGALDEEP 5 in 1 30/09/2009 1868446 03 44. MANGALDEEP SANDALWOOD 30/09/2009 1868447 03 45. MANGALDEEP 3 in 1 30/09/2009 1868440 03 38. MANGALDEEP MOGRA 30/09/2009 1868441 03 39. MANGALDEEP MOGRA 30/09/2009 1868442 03 40. MANGALDEEP BOUQUET 30/09/2009 1868443 03 41. MANGALDEEP BOUQUET 30/09/2009 1868444 03 42. MANGALDEEP 5 in 1 30/09/2009 1868445 03 43. MANGALDEEP 5 in 1 30/09/2009 1868446 03 44. MANGALDEEP SANDALWOOD 30/09/2009 1868447 03 45. MANGALDEEP SANDALWOOD 30/09/2009 1868448 03 46. MANGALDEEP CHAMPA PUJA 24/01/2011 2088991 03 47. MANGALDEEP TARANGINI PUJA AGARBATTI 24/01/2011 2088992 03 48. MANGALDEEP SADHVI 25 (ENGLISH) 07/03/2014 2694537 03 49. MANGALDEEP SADHVI 25 (HINDI) 07/03/2014 2694538 03 50. MANGALDEEP SADHVI 100 (ENGLISH) 07/03/2014 2694539 03 51. MANGALDEEP SADHVI 100 (HINDI) 07/03/2014 2694540 03 52. MANGALDEEP SAMBRANI 07/03/2014 2694541 03 53. MANGALDEEP MOGRA 28/03/2014 2709159 03 54. MANGALDEEP FRAGRANCE OF TEMPLE 28/03/2014 2709160 03 55. MANGALDEEP FLORA SANDAL & DEVICE 04/03/2015 2916457 03 56. MANGALDEEP ROSE 25/03/2015 2930356 03 57. 19/11/2015 3101026 03 15. As per the plaint, the original and artistic works in the appellant's 'MANGALDEEP' packaging is also subject matter of protection under section 2(c) of the Copyright Act, 1957 and the copyright therein is exclusively owned by the appellant herein. The packaging has instant recognition amongst the members of trade and public. The colour combination used by the appellant and the various aspects of the packaging are unique to the appellant and are identified as such. The conceptualization, arrangement and depiction of the pictorial and the artistic design of the appellant's packaging are an original artwork created for and on behalf of the appellant. Further, India being a member of the Berne Convention as well as the Universal Copyright Convention provides protection to all works irrespective of whether there is a claim of copyright on the work or not. In any case the appellant has applied for and acquired registration for the artistic work for few of the 'MANGALDEEP' packaging. The details of the same, as per the plaint would be : S. No. Title of the work Registration No 1 Mangaldeep Puja Agarbattis Bouquet A-78751/2007 2 Mangaldeep Puja Agarbattis Jasmine A-78752/2007 3 Mangaldeep Puja Agarbattis 3 in 1 A-78753/2007 4 Mangaldeep Puja Agarbattis Sandalwood A-78754/2007 5 Mangaldeep Puja Agarbattis Tarangini A-78755/2007 16. We have seen the packaging material in which the appellant markets dhoop. As per the plaint the infringement is with respect to dhoop. 17. We have seen the packaging material in which the appellant markets dhoop. As per the plaint the infringement is with respect to dhoop. 17. Albeit using the word mark 'Mangaldham, Shubh Mangalam Deep, Mangal Kamna, Mangalam Jyot, Shubh Mangalam, etc.' we find the colour scheme adopted, with different use of the colour, picture of a lady in obeisance to God, flowers/flower petals in the backdrop, is a slavish imitation and especially keeping in view the buyers of the product would deceive. The colours : pink, green and sandalwood colour in which the cardboard packaging material is printed by the appellant to form the backdrop of the writing thereon and pictorial representations has been copied. In our opinion case is made out for grant of an ex-parte ad-interim injunction keeping in view the law declared by the Supreme Court. 18. Issue notice in the appeal to the respondents returnable for December 14, 2016. CM No. 43530 of 2016 19. Issue notice to the respondents returnable for December 14, 2016. 20. For the reasons recorded here-in-above while issuing notice in the appeal we grant an ex-parte ad-interim injunctions against the respondent in terms of prayer (B) with addition that in terms thereof the respondents, their agents and persons acting under their authority would also be restrained from manufacturing, advertising and selling dhoop in the offending packaging material. 21. Compliance be made with the requirements of Order 39, Rule 3 of the Code of Civil Procedure at the time of the execution of the commission which we are hereby directing as prayer for in CM No. 43531 of 2016. CM No. 43531 of 2016 22. For the reasons recorded here-in-above while issuing notice in the appeal case is made out to appoint local commissioners with a direction to execute a commission at the following premises:- (I) M/s. Arora Offset Printers, A-21, Jhilmil Industrial Area, New Delhi. (II) M/s. Arora Offset Printers, B-59, Jhilmil Industrial Area, New Delhi. (III) M/s. Delhi Agarbatti Company, Proprietor : Mukh Lal Pandit, H-150, H-Block, New Seelampur, Delhi - 110053. (IV) Durga Trading Co., Proprietor : Rameshwar Pandit, (Also, M/s. Delhi Agarbatti Company Proprietor : Mukh Lal Pandit), A-23, New Seelampur, Delhi-110053. (V) M/s. National Agarbatti Factory, Proprietor : Ram Niwas Gupta, H-59, Seelampur, Delhi-110053. (VI) M/s. Meena Agarbatti Company, Shop No. 11, Gurudwara Building, Seelampur Colony, Seelampur, Delhi-110053. (VII) M/s. Meena Agarbatti Company, H-58, Seelampur, Delhi-110053. (IV) Durga Trading Co., Proprietor : Rameshwar Pandit, (Also, M/s. Delhi Agarbatti Company Proprietor : Mukh Lal Pandit), A-23, New Seelampur, Delhi-110053. (V) M/s. National Agarbatti Factory, Proprietor : Ram Niwas Gupta, H-59, Seelampur, Delhi-110053. (VI) M/s. Meena Agarbatti Company, Shop No. 11, Gurudwara Building, Seelampur Colony, Seelampur, Delhi-110053. (VII) M/s. Meena Agarbatti Company, H-58, Seelampur, Delhi-110053. (VIII) M/s. Jagdamba Trading Company, Shop No. 8, Gurudwara Road, Seelampur, Delhi-110053. (IX) Shashi Dhoop Industries, Also carrying on business as Agarwal Enterprises, Chandi Wala Mandir, Prachin Maa Ka Sthan, Purana Ganj, Rampur, Uttar Pradesh, Cell : 08445330391. 23. The mandate of the local commissioner would be in terms of prayers (C), (D), (E), (G), (H) and (I) of CM No. 43531 of 2016. 24. For the nine places where commission has to be executed the under noted local commissioners are appointed:- S. No. Local Commissioner Address 1 Ms. Meghna Mishra, Advocate, Mobile No. 9810125852 M/s. Arora Offset Printers, A-21, Jhilmil Industrial Area, New Delhi 2 Ms. Shruti Munjal, Advocate, Mobile No. 9818080077 M/s. Arora Offset Printers, B-59, Jhilmil Industrial Area, New Delhi 3 Mr. Dhruv Grover, Advocate, Mobile No. 9999242552 M/s. Delhi Agarbatti Company, Proprietor : Mukh Lal Pandit, H-150, H-Block, New Seelampur, Delhi - 110053 4 Mr. Manu Padalia, Advocate, Mobile No. 9999430014 Durga Trading Co., Proprietor : Rameshwar Pandit, (Also, M/s. Delhi Agarbatti Company Proprietor : Mukh Lal Pandit), A-23, New Seelampur, Delhi-110053 5 Ms. Aayushi Gupta, Advocate, Mobile No. 9811700310 M/s. National Agarbatti Factory, Proprietor : Ram Niwas Gupta, H-59, Seelampur, Delhi-110053 6 Ms. Garima Sachdeva, Advocate, Mobile No. 9910540343 M/s. Meena Agarbatti Company, Shop No. 11, Gurudwara Building, Seelampur Colony, Seelampur, Delhi-110053 7 Himanshi Taneja,Advocate, Mobile No. 9810160489 M/s. Meena Agarbatti Company, H-58, Seelampur, Delhi - 110053 8 Mr.Syed Aalim Akhtar, Advocate, Mobile No. 9873146611 M/s. Jagdamba Trading Company, Shop No. 8, Gurudwara Road, Seelampur, Delhi-110053 9 Mr.Prashant Sivarajan, Advocate, Mobile No. 9910173226 Shashi Dhoop Industries, Also carrying on business as Agarwal Enterprises, Chandi Wala Mandir, Prachin Maa Ka Sthan, Purana Ganj, Rampur, Uttar Pradesh, Cell : 08445330391 25. Fee of the first eight appointed local commissioners who have to visit premises at Delhi is tentatively fixed at Rs. 75,000/- and since the local commissioner appointed at serial No. 9 has to visit Uttar Pradesh the fee is fixed at Rs. 1,00,000/-. 26. Other miscellaneous expenses for execution of the commission shall be borne by the appellant. 27. Fee of the first eight appointed local commissioners who have to visit premises at Delhi is tentatively fixed at Rs. 75,000/- and since the local commissioner appointed at serial No. 9 has to visit Uttar Pradesh the fee is fixed at Rs. 1,00,000/-. 26. Other miscellaneous expenses for execution of the commission shall be borne by the appellant. 27. Needless to state it is the duty of the police to ensure compliance with judicial orders and therefore the SHO of the police station within whose jurisdiction a premise is required to be visited by a local commissioner is situated would ensure adequate police aid and assistance if sought by the local commissioner to execute the commission and any dereliction by the SHO concerned would be treated as a contumacious act to obstruct the course of justice. Further, if the owners/occupants of the nine premises do not cooperate in the execution of the commission the local commissioner would be entitled to break open the locks. 28. Apart from one lawyer, two representatives of the appellant would be permitted by the local commissioners to be present at the time the commission is executed.