( 1 ) THE plaintiff has filed a suit for permanent injunction restraining infringement of trade mark, passing off and for rendition of accounts, recovery of damages, etc. An application for the grant of ad interim injunction has also been filed in the suit.

( 2 ) ACCORDING to the plaintiff, the plaintiff firm is engaged in the selection, processing and marketing of rice since the year 1952. In the year 1954, the plaintiff adopted Golden Qilla ( word per se) and also device of Qilla as its trade mark so as to indicate its connection with trading in rice. In the year 1961, the plaintiff similarly adopted Lal Qilla (word per se) and also the device of Lal Qilla as its trade mark. In the year 1977, the plaintiff also adopted Neela Qilla and the device of Qilla as its trade mark in rice trade. The plaintiff has been continuously and extensively using the said trade marks and has acquired considerable reputation in connection therewith. Vide para 7 of the plaint the plaintiff has set out the Figures of actual sales and publicity expenses running into lakhs of rupees for the years commencing 1970-71 upto 1986-87. In addition to the common law rights the plaintiff also holds statutory right to the exclusive use of the aforementioned trademarks by virtue of registration granted under the provisions of Trade and Merchandise Marks Act 1958 as per the following details:

( 3 ) THE plaintiff further alleges that defendant No. 1, who is also engaged in processing and trading of rice has adopted mark HARA QILLA and device of Qilla in respect of rice processing and marketing by it. The goods are being sold under the said infringing mark by defendant No. 2 on behalf of defendant No. 1 and the abovesaid act of the defendants amounts to infringing the trade marks of the plaintiff as also to passing off goods by the defendants as of the plaintiff.

( 4 ) THE defendants have denied the plaintiff having used trade marks GOLDEN QILLA (words per se) LAL QILLA and Neela Qilla ( words per se ). According to the defendants the entries pertaining to the registered trade marks claimed by the plaintiff are wrongly remaining on the register as the trade marks have been registered by the plaintiff without any bonafide intention to use them in relation to the goods. The defendant No. 1 is the proprietor of the trade mark Hara Qilla with device of fort in respect of rice having honestly adopted the same since 7. 12. 78 and confining its user thereafter. The defendant No. l filed an application for registration of HARA QILA with device of fort and the same was advertised in the trade mark journal dated 1. 5. 89. The trade mark of the defendant is absolutely different and distinct from the alleged trade mark of the plaintiff. There is no similarity between the mark and device of the plaintiff and therefore there is no room for any confusion. There is no phonetic or visual similarity between the two marks.

( 5 ) A brief resume of the documents shows that the registration of Hara Qilla applied for by the defendant was opposed by the plaintiff having taken out proceedings under Section 21 of the Trade and Merchandise Act, 1958. On 13. 12. 1993 the Assistant Registrar of the Trade Marks has sustained the opposition and rejected the defendant s application for registration. The opposition to the registration has been allowed on the ground available under Section 12 (1), ll (a) and 18 (1) of the Act. A review of the said order was sought for which too has been rejected vide order dated 19. 9. 1994.

( 6 ) FROM the several documents filed by the plaintiff it is borne out prima facie that the plaintiff is the proprietor of the trade marks as claimed by him and has been using the said trade marks in the trade of rice. The material question that arises for decision is whether name HARA QILLA along with the device as used by the defendants can be said to be infringing the trade marks of the plaintiff and/or amounts to passing off the defendants goods as that