The main legal point established in the judgment is that the plaintiff was entitled to protection against passing off, and the defendant's claim of honest and bona-fide adoption of the mark VICTOR 80 was not accepted by the court.

RAJIV SAHAI ENDLAW, J.

1. The plaintiff has instituted this suit for (i) permanent injunction, to restrain the defendant from passing off its insecticides and/or any kind of agro chemical and/or other products as of the plaintiff, by adopting the mark VICTOR 80 which is similar/deceptively similar to the mark VICTOR of the plaintiff and (ii) for ancillary reliefs of delivery, rendition of accounts, damages etc.

2. The suit came up before this Court first on 16th September, 2016, when though summons of the suit and notice of the application for interim relief issued but the ex-parte relief sought, not granted finding that the defendant, in reply to cease and desist notice preceding the suit has claimed having commenced using the mark in the year 2010, while the plaintiff in its application for registration of the mark VICTOR had claimed use since 2002 and further finding the defendant to have in the said reply also claimed registration of the mark since the year 2010 and the same being cited in opposition to the application dated 9th February, 2011 of the plaintiff for registration of the mark VICTOR GOLD and the plaintiff having not responded thereto.

3. The defendant appeared and filed written statement and to which replication has been filed by the plaintiff. Attempts made of amicable settlement could not succeed.

4. On 18th January, 2017, the counsels agreed that the claim of the plaintiff for injunction against passing off, with both plaintiff and defendant having registered marks, can be disposed of on the basis of the documents filed by both the parties and no oral evidence is required to be led in the suit. With consent, the following issues were framed in the suit:

“(i) Whether the use by the defendant of the mark VICTOR 80 amounts to the defendant passing off its goods as that of the plaintiff having the mark VICTOR? OPP

(ii) If the above issue is decided in favour of the plaintiff, whether the plaintiff is not entitled to the relief for the reason of delay and acquiescence and the stand taken by the plaintiff before the Trademark Registry? OPD

(iii) Relief.”

The suit listed for final hearing.

5. On application of the defendant, that it had been wrongly recorded in the order dated 18th January, 2017 that the mark of the plaintiff was registered, the counsel for the plaintiff on 22nd February, 2017 stated that the plaintiff has four marks viz. VICTOR, VICTOR GOLD, VICTOR PLUS and VICTOR SUPER and the mark VICTOR GOLD had been registered during the pendency of the suit and the application of the defendant was disposed of clarifying that any observation in the order dated 18th January, 2017 of the plaintiffs mark being registered would not prejudice the defendant in any manner whatsoever.

6. The counsel for the plaintiff and the senior counsel for the defendant were heard on 8th May, 2017, 18th May, 2017 and 31st May, 2017 and orders reserved.

7. It is the case of the plaintiff in the plaint:

(i) that the plaintiff is one of the premier names in the crop protection industry.

(ii) that one of the most popular trade marks of plaintiff is VICTOR.

(iii) that VICTOR range of products are sold and marketed by the plaintiff under many variants of the mark VICTOR including VICTOR, VICTOR GOLD, VICTOR PLUS and VICTOR SUPER.

(iv) that the mark VICTOR was first adopted by the plaintiff in the year 2002 and has been continuously and uninterruptedly used by the plaintiff.

(v) that the plaintiff, on 9th February, 2011, 27th February, 2012 and 7th May, 2015 applied for registration in Class 05 of VICTOR GOLD, VICTOR, VICTOR PLUS and VICTOR SUPER respectively and which applications of the plaintiff are pending consideration.

(vi) that Class 05 covers a very wide category of goods, as diverse as pharmaceuticals, personal hygiene items, mosquito repellants, dietary supplements, surgical items, pesticides and medicinal lozenges.

(vii) that whe