JUDGMENT

G.N. Ray, J.—Leave granted. Heard learned counsel for the parties.

2. These appeals are directed against the common judgment dated October 11, 1990 passed by the Division Bench of Madras High Court in Trade Mark Second Appeal Nos. 1 and 2 of 1981 arising out of the judgment dated September 11,1980 passed by a Single Bench of Madras High Court in AAO Nos. 582-83 of 1978. The respondent No. 1 Company, namely, the Vazir Sultan Tabacco Co. Ltd. Hyderabad, has been manufacturing cigarettes under the brand name "Charminar". The said Compay in 1942 and in 1955, under the then Trade Mark legislation obtained registration of Trade Mark in respect of "manufactured tobacco" falling in Class 34 of the 4th Schedule to the rules framed under the Trade Marks Act 1940 and 1950 Act. The respondent No. 1 Company, however, did not manufacture anything other than cigarettes during all these long years. The appellant, namely, Vishnu Das Trading as Vishnudas Kishendas Zarda are manufacturing quiwam and zarda since 1973 and the appellant has been using the same trade mark, namely, "Charminar" on his bottles and boxes of quiwam and zarda.

The device of trade mark "Charminar" in the city of Hyde