cannot be accepted. It is further submitted that in the present case, the core and only artistic work in respect of which the plaintiff claims copyright is the stylized manner in which the word “SET MAX” is presented. The learned Senior Counsel for the defendants also placed reliance on the judgment of learned Single Judge of this Court in the case of Shantapa alias Shantesh S. Kalasgond v/s. M/s. Anna (judgment and order dated 30th November 2023 passed in Appeal from Order No. 915 of 2023), to claim that prosecution history before the Trademarks Registry is relevant even with respect to passing off and that therefore, in the present case, it was incumbent upon the plaintiff to divulge its stand taken before the Trademarks Registry. It is further submitted that the plaintiff cannot escape the effect of its stand taken before the Registrar of Trademarks, as also its response to the cease and desist notice issued by Galactic only on the ground that the said Galactic is not a defendant. It is submitted that the said Galactic is a licensor of the defendants, which fact the plaintiff could have realized if necessary inquiries were made and that in any case, if notice was issued to the defendants, the said fact would have come before this Court. It is submitted that even otherwise, the stand taken by the plaintiff before the Registrar of Trademarks concerned its analysis and interpretation of its own mark when compared to the mark of Galactic, which is the very mark being used by the defendants as licensees. On this basis, it is submitted that the ex-parte ad-interim order dated 30th January 2024, ought to be vacated.
