JUDGMENT S.J. Kathawalla, J. - The Plaintiffs seek to move without notice for the reasons set out in paragraph 23 of the Plaint and paragraph 5 of the Affidavit in support of Notice of Motion. This is an action for infringement of Plaintiffs'' registered trade mark and copyright combined with a cause of action for passing off. 2. The Plaintiff No. 1 is described as a private limited company incorporated under the Companies Act, 1956 and carrying on business inter alia as manufacturer and exporter of pharmaceutical, medicinal preparations and health care products in India. The Plaintiff No. 2 is described as a Company organized and existing under the laws of British Virgin Islands and is carrying on business in India through its Licensee the Plaintiff No. 1. The Plaintiff No. 2 is the owner of various trade marks and Copyrights including the trade mark/label Super Apeti originally belonging to Plaintiff No. 1. By Deed of Assignment dated 15th January 2009, the Plaintiff No. 2 has acquired the trade marks and Copyrights of Plaintiff No. 1 along with the goodwill. The Plaintiff No. 1 is now the Licensee of various trade marks, copyrights belonging to Plaintiff No. 2 including the trade mark/label Super Apeti. 3. In the year 1994, the Plaintiff No. 1 adopted the word mark "SUPER APETI" for use in respect of its medicinal and pharmaceutical preparations. On 25th September 1997, the Plaintiff No. 1 applied for registration of the said mark under application No. 766836, which was put on the Register of trade marks on 12th August 2003. By virtue of the Deed of Assignment dated 15th January 2009, the Plaintiff No. 2 is now the subsequent proprietor of trade mark "SUPER APETI" and its name has been brought on record in the Register of trade marks. Thus, Plaintiff No. 2 is the registered proprietor of Trade mark "SUPER APETI" in India. The said registration bearing No. 766836 in class 05 has a condition "registration of this trade mark shall give no right to the exclusive use of the words Super". Mr. Kamod submitted that the disclaimer would not make any difference as the Plaintiff is not claiming any exclusive right in the word ''Super''. The said registration bearing No. 766836 in class 05 has a condition "registration of this trade mark shall give no right to the exclusive use of the words Super". Mr. Kamod submitted that the disclaimer would not make any difference as the Plaintiff is not claiming any exclusive right in the word ''Super''. He submitted that it is a well settled principle that for the purpose of comparing the rival trade marks, even the disclaimed feature has to be considered i.e. the marks have to be compared as a whole. 4. The Plaintiffs'' product "Super Apeti" is sold under a label/packaging/trade dress which is artistically designed packaging and comprises of distinctive colour-scheme, lay out, get up, trade dress. The front panel of carton consists of a light blue colour background wherein in the top portion there is a red colour device with the Trade mark SUPER APETI written therein in white colour. Below the Trade mark, the composition is shown in dark blue and green colour. In the back ground there are device of Milk bottle, fruits, chicken and fish spread across the breadth of the carton. Similar red coloured device bearing the Plaintiffs'' mark and composition shown in dark blue and green colour appears on the flap panels of the carton on both sides. Within the carton there are individual strips in silver and light blue combination with white coloured tablets. The said artistic work was designed under a contract by an employee who is named in the plaint. The copyright in that artwork was registered under the Copyright Act,1957 on 6th April 2004 and has been assigned by the Plaintiff No. 1 to the Plaintiff No. 2 in 2009. Copyright Registration certificate is at Exhibit-G to the Plaint. This registration is valid and subsisting and. The Plaintiffs'' label is reproduced hereinbelow: 5. The Plaintiffs have also secured registration of their trade mark label SUPER APETI bearing No. 1208191 in class 05 as of 20th June 2003 in respect of the pharmaceutical and medicinal preparations. The said registration is subject to a condition "registration of this trade mark shall give no right to the exclusive use of the Super, the mark shall be limited to the colours as shown in the representation on the form of the application". Mr. The said registration is subject to a condition "registration of this trade mark shall give no right to the exclusive use of the Super, the mark shall be limited to the colours as shown in the representation on the form of the application". Mr. Kamod submitted that the disclaimer would not make any difference as the Plaintiffs are neither claiming any exclusive right in the word ''SUPER'' nor claiming right in colours other than those contained in the Plaintiff''s trade mark label. 6. The Plaintiff No. 1 has been manufacturing and marketing the said product bearing the Trade mark "Super Apeti" and its label/artwork/packaging/trade dress on an extensive scale as aforesaid since the year 1994 initially as the owner thereof and presently as a Licensee under the strict supervision and quality control as directed by Plaintiff No. 2. Plaintiffs are using visual aids to promote their product "Super Apeti" amongst doctors. A statement duly certified by Chartered Accountant showing the sales turnover and promotional expenses of the goods sold under the said Trade mark "Super Apeti" is at Exhibit-I to the Plaint. By reason of the aforesaid facts, the Plaintiff claim that the said trade mark "Super Apeti" and its label/artwork/packaging/trade dress has acquired distinctiveness. 7. The Defendant carries on a similar business of manufacturing and exporting pharmaceutical and medicinal preparations. Sometime in November 2009, Plaintiffs came across the Defendant''s trade mark application for registration of trade mark "Superpepti" under application No. 1467465 on 06/07/2006 filed on proposed to be used basis. Upon advertisement of the Defendant''s mark in the Trade Marks Journal, the Plaintiffs filed a Notice of Opposition against it. Till date, the Plaintiffs have not been served with any Counter Statement from the Defendant. During the said time, the Plaintiffs had searched for Defendant''s product in the market but did not come across the same. 8. The Plaintiff have now i.e. in December last year come across the Defendant''s product "Super Pepti". A Representation of the Defendant''s product pack "SUPER PEPTI" is at Exhibit-M to the Plaint. Mr. During the said time, the Plaintiffs had searched for Defendant''s product in the market but did not come across the same. 8. The Plaintiff have now i.e. in December last year come across the Defendant''s product "Super Pepti". A Representation of the Defendant''s product pack "SUPER PEPTI" is at Exhibit-M to the Plaint. Mr. Kamod submitted that a bare perusal of the Plaintiff''s registered trade mark label SUPER APETI and the Defendant''s trade mark label SUPER PEPTI would reveal that the Defendant has copied each and every element of the Plaintiff''s SUPER APETI trade mark label/artwork/packaging/trade dress including the layout, colour combination, placement and all distinctive elements and features of Plaintiffs packaging to the last millimeter. Mr. Kamod submitted that the Defendant has merely replaced the letters ''APE" from the Plaintiff''s trade mark to ''PEP'' to form its impugned trade mark. He submitted that such a minor alteration does not make the Defendant''s trade mark dissimilar to the Plaintiff''s registered trade mark. He submitted that the Defendant''s trade mark Super Pepti is phonetically, structurally so also visually almost identical with and/or deceptively similar to the Plaintiff''s trade mark SUPER APETI and the use of the same amounts to infringement of the Plaintiff''s registered trade mark, copyright and passing off. Mr. Kamod submitted that the dishonesty of the Defendant is also clear from the fact that the Defendant has also affixed the symbol (R) besides its trade mark though it is fully aware that its trade mark has not been registered till date. He submitted that the Defendant has thus in addition to committing the offence of infringement of Trade mark also committed the offence punishable under section 107 of the Trade Marks Act . 9. Mr. Kamod submitted that the Plaintiffs are no stranger to the Defendant and their products including the Super Apeti products are fully known to the Defendant. Between the years 1995 to 1998, the Plaintiffs were getting the very product SUPER APETI manufactured from the Defendant in the Defendant''s factory on loan license basis. He submitted that the Defendant has therefore been fully aware of the Plaintiffs trade mark and also label/packaging/trade dress of SUPER APETI at least since 1995. Copies of Loan License obtained by the Plaintiff for manufacture of their various products including SUPER APETI product at the factory of Defendant are at Exhibit L-1 and L-2 to the Plaint. He submitted that the Defendant has therefore been fully aware of the Plaintiffs trade mark and also label/packaging/trade dress of SUPER APETI at least since 1995. Copies of Loan License obtained by the Plaintiff for manufacture of their various products including SUPER APETI product at the factory of Defendant are at Exhibit L-1 and L-2 to the Plaint. Copies of invoices of the year 1997 and 1998 for removal of Plaintiff''s SUPER APETI products from Defendant''s factory are at Exhibit L-3 and L-4 to the Plaint. 10. Mr. Kamod submitted that in such circumstances it is absolutely just and necessary that an ex-parte ad-interim order be passed restraining the Defendant from committing infringement of the Plaintiff''s registered trade mark, copyright and passing off. Mr. Kamod submitted that considering the dishonest conduct of the Defendant, the Plaintiffs apprehend that if the Defendant is given notice of the present application, there is a strong likelihood that the Defendant would remove the impugned goods from its possession, custody and/or control and sell or part with possession thereof or dump their goods in the market and the purpose of making the present application will be defeated. He submitted that considering the nature of goods involved in the present case viz. medicinal and pharmaceutical preparations, it is in the interest of general public alongwith the Plaintiffs that the ad-interim reliefs as prayed be granted without notice to the Defendants. 11. I have heard the submissions in detail and perused the record. Prima facie, the trade mark/label Super Pepti of the Defendant is almost identical with the Plaintiff''s registered trade mark/label Super Apeti. A comparison of the rival products hardly leaves any doubt about the manner in which Defendant has blatantly copied the Plaintiffs'' trade mark label. Photographs of the rival products are reproduced below: I am of the opinion that one cannot be distinguished from the other. There is no manner of doubt that the rival marks are phonetically, structurally so also visually almost identical and/or deceptively similar. The Defendant''s label/artwork/packaging/trade dress of SUPER PEPTI is a reproduction of Plaintiffs label/artwork/packaging/trade dress of SUPER APETI. Considering the fact that the Plaintiffs'' products were being manufactured in the Defendant''s factory on loan license basis during the period 1995-1998, the Defendant was certainly aware about the Plaintiff''s SUPER APETI products and goodwill and reputation attached thereto. The Defendant''s label/artwork/packaging/trade dress of SUPER PEPTI is a reproduction of Plaintiffs label/artwork/packaging/trade dress of SUPER APETI. Considering the fact that the Plaintiffs'' products were being manufactured in the Defendant''s factory on loan license basis during the period 1995-1998, the Defendant was certainly aware about the Plaintiff''s SUPER APETI products and goodwill and reputation attached thereto. It is therefore clear that the Defendant has deliberately and dishonestly adopted and used the impugned trade mark/label SUPER PEPTI. In the circumstances, a strong prima facie case for the grant of ad-interim reliefs is made out. Unless reliefs as prayed for are granted, the Plaintiff is likely to suffer injury. 12. In view of what is stated in paragraph 23 of the Plaint; paragraph 5 of the Affidavit in support of the above Notice of Motion and in view of the above, I am satisfied that the object of granting the following reliefs would be defeated if notice of this application is given to the Defendant. 12. In view of what is stated in paragraph 23 of the Plaint; paragraph 5 of the Affidavit in support of the above Notice of Motion and in view of the above, I am satisfied that the object of granting the following reliefs would be defeated if notice of this application is given to the Defendant. There shall accordingly be an ad-interim order in terms of prayer clauses (a) and (e) of the Notice of Motion, which read as follows: (a) that pending the hearing and final disposal of the suit the Defendants by themselves, their servants, agents, directors, sister concerns, subsidiaries, dealers, distributors, stockists, franchisees, representatives, and/or successors in title, affiliates and/or assigns and all persons acting for and on their behalf be restrained by a temporary order and injunction of this Hon''ble Court from manufacturing, selling, offering for sale, exporting, advertising, marketing and/or in any manner dealing in relation to any pharmaceutical and/or medicinal preparation and/or such allied and cognate goods bearing the impugned Trade mark "SUPER PEPTI" or any other deceptively similar Trade mark as that of Plaintiff No. 2''s Trade Mark "SUPER APETI" so as to infringe the Plaintiff No. 2''s registered Trade Mark "SUPER APETI" bearing No. 766836 dated 25/09//1997 and registered Label mark bearing No. 1208191 dated 20/06/2003 or otherwise howsoever ; (b) That pending the hearing and final disposal of the suit the Defendants by themselves, their servants, agents, directors, sister concerns, subsidiaries, dealers, distributors, stockists, franchisees, representatives, and/or successors in title, affiliates and/or assigns and all persons acting for and on their behalf be restrained by a temporary order and injunction of this Hon''ble Court from manufacturing, selling, offering for sale, exporting, advertising, marketing and/or in any manner using directly or indirectly in relation to any pharmaceutical and/or medicinal preparation and/or such allied and cognate goods the impugned label/carton/packaging/trade dress for the product "SUPER PEPTI" being Exhibit "M" to the Plaint or any other deceptively similar label/Packaging/carton/trade dress to that of Plaintiff No. 2''s label/packaging/carton/trade dress being Exhibit "F" to the Plaint or which is reproduction and/or substantial reproduction of Plaintiffs artistic packaging for its product "SUPER APETI" so as to infringe the Plaintiff No. 2''s Copyright in the original artistic work contained in the said packaging shown at Exhibit "G" to the Plaint and registered under No. A- 64996/2003 dated 19/08/2003 by reproducing the same in any material form or using the same or any colourable imitation thereof or otherwise howsoever ; (c) That pending the hearing and final disposal of the suit the Defendants by themselves, their servants, agents, directors, sister concerns, subsidiaries, dealers, distributors, stockists, franchisees, representatives, and/or successors in title, affiliates and/or assigns and all persons acting for and on their behalf be restrained by a temporary order and injunction of this Hon''ble Court from manufacturing, selling, offering for sale, exporting, advertising, marketing and/or in any manner dealing in relation to any pharmaceutical and/or medicinal preparation and/or such allied and cognate goods bearing the impugned Trade mark "SUPER PEPTI" and its label Trade mark/packaging/artwork/trade dress or any other deceptively similar Trade mark and similar packaging/artwork/trade dress as that of Plaintiff No. 2''s Trade mark/packaging/artwork/trade dress "SUPER APETI" so as to pass off the Defendants goods as and for those of the Plaintiffs ; (d) That pending the hearing and final disposal of the Suit, the Court Receiver, High Court, Bombay or such other fit and proper person as this Hon''ble Court thinks fit be appointed Receiver with all powers under Order 40 Rule 1 of the C.P.C., 1908 in order to attend at and/or enter either by force or by breaking open the lock or by removing the obstruction or barrier or otherwise into the Defendants premises including godown, warehouse, factory premises of the Defendants where the goods bearing the impugned Trade Mark "SUPER PEPTI" with or without the impugned packaging being Exhibit "M" to the Plaint or any other goods bearing the impugned packaging being Exhibit "M" to the Plaint with or without impugned mark "SUPER PEPTI" are stocked, lying, retailing or manufactured without notice to the Defendants with the help of Plaintiffs representatives and Police, if necessary, and to make inventory and to take possession, custody and control of all the impugned products, packed or unpacked and/or in the process of manufacturing, packing, labeling, re-labeling or retailing and the Defendants by itself, its servants, agents and distributors be ordered and directed to deliver up the aforesaid goods, articles and documents including invoices, sales and excise registers bills, airway bills, and all materials relating to the goods bearing the impugned Mark "SUPER PEPTI" to the Court Receiver, High Court, Bombay with all powers under Order 40 of the Code of Civil Procedure, 1908 including power to take physical possession thereof with police protection. (e) That pending the hearing and final disposal of the suit, the Respondents be restrained by an order and injunction of this Hon''ble Court from permitting export of the medicinal and/or pharmaceutical preparations bearing the mark "SUPER PEPTI" and/or bearing the artwork of "SUPER PEPTI" as shown at Exhibit "M" to the Plaint. 13. The Court Receiver, High Court Bombay shall keep the impugned goods under his seal in the safe custody of the Defendant. He is authorized to take the assistance of the local Police Authorities. The Police Authorities concerned are directed to render all possible assistance to the Court Receiver on production of an authenticated copy of this order. The Court Receiver is directed to submit a report to this Court on the next day of hearing i.e. 22nd January 2018. 14. This order is not to be uploaded until the Court Receiver executes his commission. 15. The Plaintiff is to comply with the provisions of Order 39 Rule 3 of the Code of Civil Procedure, 1908 within four working days of the Court Receiver executing this commission. 16. The order of injunction is to continue till 24th January 2018. List the matter on 22nd January 2018 for further ad-interim reliefs. 17. Liberty to the Defendant to apply for variation of this order with 24 hours prior written notice to the Plaintiff and/or its Advocates. 18. All parties including the Court Receiver are directed to act on an ordinary copy of this order, duly authenticated by the Associate of this Court/Personal Assistant.