1. Defendant, a Service Co-operative Bank, in a suit for passing off, has filed this appeal challenging the decree passed by the learned District Judge, Thrissur. Respondent is the plaintiff.

2. In the above suit appellant/defendant had raised a counter claim also, which too was negatived by learned district judge while granting a decree in favour of respondent/plaintiff restraining the appellant by prohibitory injunction from conducting, running, manufacturing and selling coconut oil under the trade mark 'Kalpasree' or in any manner passing off and selling their coconut oil on the deceptively similar trade mark 'Kalpasree', which is the trade mark of the respondent/plaintiff. Appellant/defendant was also directed to surrender to plaintiff all the name boards, labels, wrappers, packaging materials, logo and other printing matters containing and consisting of the trade mark 'Kalpasree' together with blocks used for the purpose of printing the same, for destruction within three months from the date of decree. Aggrieved by the decision so rendered by the learned District Judge, defendant has filed this appeal.

3. I heard counsel on both sides and also perused records of the case. Case of the plaintiff in short is that it has been manufacturing and marketing coconut oil under the name and style 'Kalpasree' since 2003 onwards. That mark used by plaintiff, by long continuous use has got its own distinctiveness over which it has acquired a vested right. The defendant with intend to cause injury to plaintiff has adopted a name resembling the trade mark of plaintiff for sale of coconut oil produced by it was its case to seek a decree of injunction with further relief to direct defendant to surrender all its name boards, labels, wrappers etc. of the mark used by resembling the trade mark of plaintiff. The defendant has been using a trade mark 'KSB Kalpasree', which is deceptively similar to and resembling that of plaintiff, was the case of plaintiff for the reliefs canvassed aforesaid. Resisting the suit claims defendant filed a written statement in which it was contended that after conducting a selection process inviting applications from the public in and around the place where the bank functioned, the name 'KSB Kalpasree' was chosen by the bank to sell its product of coconut oil. Person who suggested that name for the product on its selection was awarded prize by the bank, and the name 'KSB Kalpasree' was accepted on 12.08.2002, was its further case. However, the usage of that name for the coconut oil produced by the bank commenced only in 2005. Bank also applied for registering that trade mark, which, later, was issued on 31.03.2008. Knowing of the use of mark 'Kalpasree' by plaintiff for its product of coconut oil which resembled 'KSB Kalpasree' chosen by bank for selling the same product, it had issued a notice on 28.05.2005 demanding the plaintiff to desist from using that mark. That notice was responded with a reply requesting for settling the issue. Subsequently, the bank getting information that plaintiff has obtained registration over the trade mark 'Kalpasree' initiated rectification proceedings before the Registrar on 22.10.2007 and the proceedings thereof are continuing, was the case of bank to contend that the plaintiff is not entitled to the reliefs canvassed in the suit. Defendant bank also set forth a counter claim in its written statement seeking a decree to restrain the plaintiff from using the trade mark 'Kalpasree' which is deceptively similar and resembled its registered trade mark 'KSB Kalpasree'.

4. Learned district judge appreciating the materials produced by both sides upholding the claim of plaintiff and negativing the counter claim of defendant passed a decree of injunction against the defendant from using the trade mark 'Kalpasree' for its product coconut oil with direction to surrender the name boards, labels, wrappers packaging materials, logo etc. of the trade mark 'Kalpasree' with the blocks ther