The use of a mark which is deceptively similar to a registered trademark is an infringement of the trademark and the registered proprietor is entitled to an injunction to restrain such use.

( 1 ) THE Court : The plaintiff publishes a monthly magazine by the name 'esquire' and has been doing so since 1933. The magazine is sold internationally. Sales of the magazine are also effected in India. The plaintiff is the registered proprietor of the Trade Mark 'esquire' in India. Registration of the trade mark was granted in 1942 by the Trade Mark Registry at Calcutta in respect of inter alia magazines and periodicals. The trade mark is still valid. The plaintiff also owns the copy right in the script, get-up and style in which the trade mark 'esquire' is retailed.

( 2 ) SINCE October, 1994 the defendant has been publishing a monthly magazine with the name 'e-square'.

( 3 ) THE plaintiff has filed this suit claiming that the defendant has thereby infringed the plaintiffs trade mark and copy right of the trade mark 'esquire'. An application for interim relief was filed and an ad-interim order was passed on 10th May, 1995 restraining the defendant from publishing the June issue of 'e-square' until 18. 5. 95, without the leave of the Court. The May issue was also directed not to be marketed and solid till 18th May, 1995 if it had not already been done. On 18th May, 1995 the interim order was directed to continue as the defendant did not appear. According to the defendant it was not served in time. The defendant preferred an appeal from the ad-interim order. No stay was granted. The defendant has now filed an application for modification and/or modification of the ad interim orders and for stay of the trial of the suit. The defendant has also filed an application for security for costs. This judgement disposes of all these applications.

( 4 ) ACCORDING to the defendants the name 'e-square' had been adopted because the magazine was published for Executives and entrepreneurs. The defendant had entered into an agreement with the Citibank N. A. by which the defendant undertook to publish the magazine for free circulation to Citibank card members. After meeting the demands of the Citibank card members the defendant would be entitled to sell the magazine in the open market. The defendant has said that the mark of the plaintiff and that of the defendant was different alphabetically script-wise and in letter style. The client tail of the plaintiff was exclusively men whereas the defendant's clients were Executives and entrepreneurs of whichever sex. The defendant emphasised that it is a reputed publishing firm and the name of the magazine had been approved and registered by the Registrar of Newspapers for India under the Press and Registration of Books Act. 1867. The defendant had also applied for registration of the mark 'e-square' on 7th April, 1995 and had also applied for the rectification of the plaintiffs mark. The defendant bas also alleged that there was a vast difference in the pricing of the magazine-the plaintiff's magazine selling for Rs. 220/- each whereas the defendant did not sell the bulk and only sold the excess after meeting the requirements of the Citibank card members at Rs. 12/- per copy. There was as such, according to the defendant, no possibility of deception or confusion. Additionally the defendant has submitted that the balance of convenience was in favour of the interim order being vacated.

( 5 ) THE Trade and Merchandise Marks Act, 1958 (herein after referred to as the Act) was enacted inter alia for the better protection of trade marks. "trade Mark" has been defined in section 2 (v) of the Act as "a mark used. . . . . . . . . . . . . in relation to goods for the purpose of indicating or so as to indicate a communication in the course of trade between the goods and some person having the right, either as proprietor or as registered user, to use the mark whether with or without any indicating of the identity of that person. . . . ". Once a trade mark is registered, during the period of its validity, the registered proprietor has the exclusive right to the use of the trade mark in relation t