ORDER : IA No. 4774/2017 (u/O XXXIX Rule 1 & 2) 1. In the instant suit filed by the plaintiff for injunction against passing off of trade mark, rendition of accounts of profits, delivery up etc. the plaintiff seeks interim relief against the defendants from selling, offering for sale, advertising, directly or indirectly dealing in paints, distempers, varnish, wax, polish, OBD (distemper), lacquers, distempers, preservatives against rust and deterioration, colourants etc. and other allied and cognate goods on the label / bucket under the trade mark 6064 used independently or with any suffix or prefix or any other mark deceptively similar mark to the trade mark 6004 of the plaintiff. The application is contested by the defendants. 2. Plaintiff's case is that she is the sole proprietor of the firm M/s.Multi Group of Suppliers. The instant suit is for protection of its trade mark 6004, a unique number, combination of the figures of two of its licence numbers 8309474 and 8290994. The plaintiff has applied for its registration vide application No. 2579387 dated 13.08.13 in the office of Registrar of Trade Marks, New Delhi claiming its user since 01.04.2011; this application is still pending. The plaintiff has incurred substantial expenses in advertisement, etc. to make trade mark 6004 popular; it connotes and denotes the product of the plaintiff's firm only and none else. The defendant No. 1 has filed an application for registration of mark 6064 Acrylic Washable Distemper Type-2 on 10.09.2015 on the basis of "proposed to be used". Defendant No. 1 has no reason to adopt similar mark 6064. He was aware about the use of mark 6004 by the plaintiff prior to that. 3. In written statement, defendant No. 1 urged that trade mark 6004 for which the plaintiff has claimed proprietorship is under litigation. Various suits were filed regarding this trade mark earlier also and no restraint order was granted in plaintiff's favour. The plaintiff cannot claim monopoly over numerical. It is further averred that after the filing of the application for registration of trade mark 6064 Acrylic Washable Distemper Type-2 on 10.09.2015, the said trademark is being continuously used by the defendants. 4. Perusal of the record reveals that trademark 6004 in question is already under litigation in several earlier suits. The plaintiff cannot claim monopoly over numerical. It is further averred that after the filing of the application for registration of trade mark 6064 Acrylic Washable Distemper Type-2 on 10.09.2015, the said trademark is being continuously used by the defendants. 4. Perusal of the record reveals that trademark 6004 in question is already under litigation in several earlier suits. Admittedly, the plaintiff instituted a suit bearing suit No. TM 7 of 2013 claiming similar relief to restrain the defendant from passing off his goods by using a trademark 4006. The said suit is pending before the Court of Addl. District Judge, Rohini Courts and was listed for hearing on 28.07.2017. No restraint order was granted to the plaintiff in the said proceedings. It has further come on record that the defendant No. 1 and the plaintiff were having litigation with Glossy Colour & Paints Pvt. Ltd. and Glossy Paints (India) Pvt. Ltd. regarding use of mark 4006 and 1001. The said litigation bearing No. CS(OS) 3072/2014 titled as Manmohan Sachdev & Ors. v. Hariom Goyal & Ors. got decreed in terms of the settlement agreement dated 05.10.2015 entered before the Delhi High Court Mediation & Conciliation Centre. As per settlement, defendant No. 1 herein undertook not to use, adopt, operate, market, offer for sale etc. the trademark 4006. CS(OS) 2335/2014 was filed against mark 6004 by Glossy Colour & Paints Pvt. Ltd. against the plaintiff which is still pending for adjudication. During the pendency of the suit the present plaintiff opted to change its colour schemes from red and white to green and gold. In the application under order XXXIX R 1 & 2 CPC the present plaintiff was injected against the use of mark / label 6004 and eye device on the original label. The present plaintiff preferred an appeal being FAO(OS) 572/2015. In said proceedings disposed of on 02.02.2016, the plaintiff opted to change the lay out, colour scheme, get-up of the label in such a manner as to make it completely distinct from the original label as adopted by him so as to obviate any confusion or deception. The proposed changed labels was depicted and accepted in the appellate jurisdiction. The Appellate Court observed in paragraphs 9, 10, 12 & 13 as under: "9. The proposed changed labels was depicted and accepted in the appellate jurisdiction. The Appellate Court observed in paragraphs 9, 10, 12 & 13 as under: "9. Though there is no quarrel with the proposition that a trademark can be represented merely by a numeral, however, simply because one party had adopted a numeral as a trademark for its products, it cannot be said that no other party can adopt different numerals as part of a trademark for their similar goods. In such a situation what has to be seen, is whether the mark taken as a whole i.e. combination of numeral, colour scheme, get-up, layout are deceptively similar. 10. We have examined the label now proposed by the appellant and are prima face of the view that the said label as a combination of its colour scheme, get-up and layout and arrangement of features is prima facie distinct from the label as used by the respondent. 12. In so far as the impugned order restrains the appellant from using the impugned label is concerned, we are not interfering with the same. However, we modify the impugned order to the extent that the appellant may use the proposed label with its colour scheme, get-up, layout and arrangement of features along with the numeral 6004'. 13. The question whether the use of the numeral 6004' per se would still amount to an infringement is left open to be decided at trial. The respondent/plaintiff would be required to lead cogent evidence to establish that the use of the numeral 6004' per se is deceptive, confusing or misleading to the purchaser of average intelligence and imperfect collection." 5. Apparently, the use of numeral 6004' by the plaintiff is still under litigation. The defendants have already filed an application on 10.09.2015 for registration of trademark 6064 Acrylic Washable Distemper Type-2 which was prior to the disposal of FAO(OS) 572/2015 on 02.02.2016. 6. Considering the above facts, it is not a fit case for grant of interim relief. The application is dismissed. 7. Observations in the order shall have no impact on merits of the case. CS (COMM) 290/2017 1. Pleadings are complete. Following issues arose out of the pleadings of the parties and documents on record: (i) Whether the plaintiff is the proprietor of the trade mark 6004 in class 2 in respect of paints, varnishes, distempers etc.? 7. Observations in the order shall have no impact on merits of the case. CS (COMM) 290/2017 1. Pleadings are complete. Following issues arose out of the pleadings of the parties and documents on record: (i) Whether the plaintiff is the proprietor of the trade mark 6004 in class 2 in respect of paints, varnishes, distempers etc.? OPP (ii) Whether the defendant No. 1 is passing off her goods as the goods of the plaintiff by using trade mark 6064? OPP (iii) Whether the plaintiff is entitled to damages, if so, to what extent? OPP (iv) Whether the plaintiff is entitled for a decree of rendition of accounts, if so, for what period? (v) Whether the plaintiff is entitled for the injunction prayed for? (vi) Whether the suit is liable to be stayed under Section X CPC? OPD (vii) Relief. 2. No other issue arises or pressed. 3. List before the Joint Registrar on 30th October, 2017 for recording evidence. 4. The plaintiff shall file affidavit of evidence within four weeks.