Delay cannot defeat the right in case of dishonest use of trade mark.

V. Ramasubramanian, J.

The applicant in all these applications has come up with the suit C.S.No.797 of 2006 praying for various types of decree of permanent injunction restraining the respondent from infringing the registered trade mark and name "Khazana" and also from infringing the copyright of the plaintiff over the artistic manner in which the trade name "Khazana" has been written in a particular style. In addition to the prayer for the grant of various types of permanent injunction, the applicant has also sought for a preliminary decree for rendition of accounts of the profits made by the respondent and also for damages.

2. Pending suit, the applicant has come up with the present applications. Application No.4341 of 2006 is for the grant of leave to the applicant to combine different causes of action such as infringement of trade mark, infringement of copyright and passing off. The applicant has filed the other three applications viz., O.A. Nos.836 to 838 of 2006 praying for the relief’s of (a) temporary injunction restraining the respondent from infringing the applicants registered trade mark; (b) temporary injunction restraining the respondent from infringing the applicants copyright in the artistic work "Khazana"; and

(c) temporary injunction restraining the respondent from passing off their goods as those of the plaintiffs.

3. I have heard Mr. A.A. Mohan, learned counsel appearing for the applicant/plaintiff and Mr. P.S. Raman, learned Additional Advocate General appearing for the respon-dent/defendant.

4. The case of the applicant/plaintiff in the suit, in brief is that he has been carrying on the business of manufacturing and selling jewellery made of gold, silver and other precious stones under the trade name "Khazana Jewellery" right from 14. 1989; that the trade name "Khazana" has been registered for goods underclass 14, in favour of the applicant/plaintiff under registered trade mark No.544884 on 4. 1991; that the plaintiff is also the Proprietor of the copyright in the artistic work "Khazana" written in a stylized script from the year 1991; that the plaintiff has been using the said trade mark and artistic work openly, extensively and continuously in respect of the aforesaid goods ever since the date of commencement of business and has showrooms in T.Nagar and Cathedral Road in Chennai and branches at Hyderabad, Vijayawada and Vizhakapattinam in Andhra Pradesh; that due to extensive advertisement and sales promotion techniques carried out by the plaintiff, the turnover of the plaintiff rose from Rs.5.10 crores in 1995-1996 to Rs.80.82 crores in 2004-2005; that the cost of advertisement itself rose from Rs.53 lakhs in 1995-1996 to Rs.127 lakhs in 2004-2005: that in the year 2006, the applicant/plaintiff found that the respondent/defendant had started a similar business in jewellery, at Kakinada under the name "Navaratna Khazana Jewellery", with the word Navaratna" being written in a small and insignificant manner, but the word "Khazana" written in prominent and hold letters in the same style adopted by the applicant/plaintiff; that the issue of legal notices by the applicant/plaintiff produced conflicting replies from the respondent/defendant and that the adoption of the same name, in the same style, for the same product by the respondent/defendant amounted to infringement of the proprietory rights of the applicant/plaintiff over the trade mark and also infringement of the copyright that the plaintiff has over the manner in which the trade mark is written and used and also amounted to passing off.

5. The applicant/plaintiff has filed the Certificate of Registration of Trade Mark as Document No.1. It shows that the trade mark of the applicant/plaintiff "Khazana" written in a particular style had been registered as trade mark No. 544884 dated 2. 1991 in respect of goods "precious metals or coated therewith: jewellery, precious stones, ornaments made out of precious metals and their alloys" under class