( 1 ) THE plaintiff has instituted a suit for perpetual injunction restraining infringement of trade mark, passing off and rendition of accounts in respect of the trade mark of the plaintiff jumbo LABEL with device of Aeroplane in relation to edible oils (Mustard Oil ). The main relief sought for in the suit is for a permanent injunction restraining the defendant, its servants, agents and others working on its behalf from manufacturing, marketing, selling or offering for sale or otherwise dealing in Tea or any other allied and cognate goods under the trade mark jumbo LABEL or any other trade mark which may be deceptively similar to the plaintiff s trade mark jumbo LABEL .

( 2 ) IN the suit the plaintiff has also filed an application under Order 39 Rules 1 and 2 of the Code of Civil Procedure seeking for an ad interim injunction restraining the defendants in the aforesaid terms from manufacturing the aforesaid articles under the trade mark jumbo LABEL which may be identical and/or deceptively similar to the plaintiff s trade mark.

( 3 ) THIS court, while issuing summons to the defendants considered it fit to issue only a notice to the defendants on the injunction application and did not grant any ad interim injunction as prayed for by the defendants at that stage. Now the said injunction application has come up for consideration and final disposal.

( 4 ) IN order to appreciate the points and issues urged by the counsel for the parties it is necessary to delineate and recapitulate certain facts giving rise to the suit.

( 5 ) IT is stated that the plaintiff is the proprietor of the trade mark jumbo LABEL with device of aeroplane in relation to edible oils (Mustard oil) and is registered in class 29 from 7. 5. 1980 in respect of edible oils. The plaintiff adopted the said trade mark in respect of aforesaid goods from April 1973 and has been continuously using the same till date. The business carried on by the plaintiff is very extensive and the aforesaid trade mark jumbo LABEL with device of aeroplane has become distinctive and associated with business of the plaintiff. The plaintiff has given vide publicity to the said trade mark and in view of the same the said trade mark came to acquire a unique reputation and enviable goodwill among the public and trade.

( 6 ) THE defendants are engaged in the business of processing, offering for sale and marketing tea and has adopted the trade mark jumbo LABEL with device of elephant in respect of its product tea. The user of identical and/or deceptively similar trade mark by the defendants of JUMBO LABEL in relation to the same goods or goods of the same and cognate description is in clear and flagrant violation of the plaintiff s legal, vested and statutory rights. According to the plaintiff the initial knowledge of the plaintiff of the defendant using identical and/or deceptively similar trade mark was in the month of August, 1994.

( 7 ) THE defendant contested the suit by filing a written statement contending inter alia that the trade mark of the defendant is entirely different to that of the plaintiff as also the goods which are of different description. According to the defendants jumbo LABEL is commonly used in all trades and is descriptive of the goods having no trade mark value, and therefore, the plaintiff is not entitled to claim exclusive use of the word jumbo LABEL which is common to trade and publici juris. According to the defendant the trade mark of the defendant consists of jumbo LABEL containing a device of elephant which is being used from 1977 to mean an elephant with the word jumbo , which is a dictionary word and has no connection or relevance to the meaning or impression of a jumbo aeroplane conveyed by the trade mark of the plaintiff.

( 8 ) IT is stated that the defendant has been openly using the said trade mark for a long time and there could be no confusion or deception on the part of anyone as the two trade marks cannot be sa