Onus lies on the plaintiff to prove factors for obtaining interim-injunction.

Srinivasan, J.

1. This appeal is by the second defendant in C.S. No. 636 of 1995 on the file of the original side of this Court against the order dated 30-6-1995 made in O.A. No. 509 of 1995 restraining him from infringing in any manner the plaintiff's registered trade mark "THE MAIL" by use of the trade mark "Trinity Mail" or any trade mark incorporating the word "MAIL". The parties in this appeal will be referred to by their rank in the suit for the sake of convenience.

2. The plaintiff has averred in the plaint as follows: The plaintiff is the proprietor of the trade marks "THE MAIL" and "THE WEEKLY MAIL" registered under Nos. 115521 and 115522 respectively dated 27th November, 1945 in Class 16 in respect of News Papers and printed publications. The Registration has been duly renewed from time to time and is still valid and subsisting. The title "THE MAIL" has also been registered with The Registrar of New Papers for India. Declaration has been filed before the Chief Metropolitan Magistrate, Egmore, Madras for publication of the newspaper bearing the title "THE MAIL". The plaintiff was publishing an evening English Daily bearing the said name since the year 1868. The Sunday Edition of the newspaper was called the WEEKLY MAILY. The paper had enjoyed extensive reputation all over India and particularly in Southern India. In about the year 1992 the plaintiff resumed the publication of a monthly bearing the title "THE MAIL". The same has been registered with the Registrar of Newspapers on 27-7-1992 and a declaration has been given before the Chief Metropolitan Magistrate, Egmore, Madras on 30-7-1992. The circulation figures of the monthly "THE MAIL" are constant on 3000 for the years 1992- 93, 1993-94 and 1994-95. The defendants issued a circular dated 21-2-1995 stating that they are publishing shortly an English Daily bearing the title "Trinity Mail". The word Trinity is printed in small insignificant letters whereas the word MAIL is printed in bold capital letters in a prominent manner. The proposed publication of the said daily is in gross violation of the Trade Marks rights vested in the plaintiff and the exclusive monopoly of the plaintiff in the title "THE MAIL" which is registered. The plaintiff issued a notice dated 21-3-1995 through its Attorney to the defendants calling upon them to cease and desist from publication. Though the plaintiff's attorney received acknowledgement cards, the defendants failed to comply with the requests contained in the notice.

3. The use of "Trinity Mail" as a Mark and as their title by the defendants is with the deliberate intention to trade upon and benefit from the reputation and goodwill enjoyed by the plaintiff's registered trade mark and registered title "THE MAIL". An ordinary purchaser with imperfect memory would assume that the defendants' publication is associated with that of the plaintiff. The defendants have adopted the Trade Mark and Title "Trinity Mail" with a view to pass off and enable others to pass off their daily as and for the plaintiff's newspaper and publication. The defendants have committed acts of passing off. The defendants' Trade Mark "Trinity Mail" is phonetically and visually similar to the plaintiff's registered trade mark "THE MAIL". The defendants have lifted the word 'MAIL' which is the essential feature of the plaintiff's registered trade mark. The use of the trade mark 'Trinity Mail' by the defendants amounts to infringement of the plaintiff's registered trade mark 'THE MAIL'. The plaintiff has suffered and is likely to suffer heavy loss to its goodwill and reputation on account of the wrongful activities of the defendants. The plaintiff has estimated the damage caused by the activities of the defendants at Rs. 1, 10, 000. The plaintiff is entitled to claim from the defendants the illegal profits made by the defendants by acts of infringement of trade mark, passing off and infringement of registered title "THE MAIL". On accounts being taken, the p