JUDGMENT :

S. Ravindra Bhat, J.

IA 6442/2005

1. This order will dispose of is 6442/2005, an application for ad-interim injunction restraining the defendant from using the trademark and trading style 'EVERGREEN', or any other mark deceptively or confusingly similar to the plaintiff's mark.

2. The plaintiff, a partnership firm was established on 30th'September 1963 for preparing and selling rich traditional Indian sweets in the best of taste and quality.' The business has continued unhindered by the death of the original foundered; it has been functioning without interruption under the trading style/trademark 'EVERGREEN SWEET HOUSE'( hereafter 'the mark').' At present there are five partners of the plaintiff firm. Besides marketing their products wholesale to their varied customers in India and abroad, the plaintiff's EVERGREEN SWEET HOUSE, a multi-cuisine Restaurant, with 4000 sq. ft. shop floor, is situated at a conspicuous location in the prime locality of South Delhi where food to suit every palate is served.

3. The plaintiff alludes to its yearly turnover of Rs. 86.77 lakhs in 1987- 88, increasing to Rs. 261.34 lakh in 1994-95, and to Rs. 807.73 lakhs in 2003-04. The sale during 2004-05 was around Rs. 1029.46 lakhs. It is claimed that the plaintiff's goods are also exported abroad, specially to the UK and Australia, and earn substantial foreign exchange. The plaintiff has a wide ranging customer profile, including customers from the neighbouring satellite townships of NOIDA, Gurgaon, Faridabad, Ballabgarh, Meerut, etc. as such towns are closely connected to Delhi by road and rail network. The plaintiffs applied for registration of their Trade Mark 'EVERGREEN SWEET HOUSE' with Logo, under Application No. 816425 dated August 26, 1998, in Class 30, claiming user since June 25, 1965, which has since been accepted and published in the Trade Marks Journal No. 1328 Supp. (5) dated March 30, 2005, and the Certificate of Registration was issued.

4. The plaintiffs claim to be using the name/trading style/trade mark in respect of their products since 1965. In support of the said facts, photocopies of the documents, e.g., Registration Certificate of the establishment dated 25.4.1965 issued under Delhi Shops and Establishments Act, 1954, Certificate of Registration as a Dealer No. 60971 dated 26.4.65, Delhi Sales-Tax Certificate registered under No. 4054 dated 18-12-1975, Central Sales Tax Certificate Registration No. LC/100/076796/0465 dated 26-4-1965, Income Tax Assessment Orders from the year 1964-65 to 2002-2003, and Audited account of the plaintiff from the year 1988 till 2003 have been produced. The plaintiff claims that its goods have acquired a valuable goodwill and reputation in the market because of their quality.

5. The plaintiffs aver that, they became aware that the Defendants were using 'EVER GREEN' as their trade name/trademark, which led to their contacting the latter, through one Mr. Raj Kumar, who claimed to be the partner of the Defendant Nos. 1 and 2. The latter were requested to remove the words EVER GREEN from their trading style/trade name as they are similar and identical to the trading style/trademark of the plaintiffs, who had been using the same since 1965, as the use by the Defendants, in respect of the same business would create confusion and deception amongst the consumers. It is alleged that the Defendant No. 1 assured the plaintiffs that they would like to sort out the issue by having a joint meeting with the plaintiff.' However, no such meeting never took place despite several assurances by the Defendant.' The plaintiffs aver to the defendants retracting from this assurance when they were contacted again in the second week of August 2005.

6. It is alleged that the Defendants, by giving stress on the words 'EVER GREEN' in their trading style, by writing them' prominently in special style, which is a significant part of the plaintiff's Trade Mark and trading style 'EVER GREEN SWEET HOUSE' have thus imitated and co