1. Parties in this case are locked in an intense court battle over the exclusive right to use the name of one of the reigning deitys from amongst pantheon of Hindu Gods; not for any altruistic purpose but for pure commercial gains. Since the products in issue, in respect of which the impugned mark is being used are: ghee, milk products and dairy products, the God who has been invoked; and the name which would, in the litigants estimation, catch consumers imagination is “KRISHNA”. The plaintiff claims exclusivity over the word mark and label mark KRISHNA; which includes the attendant pictorial depiction.

2. It is pertinent to note at this stage that, when the suit was first moved alongwith an interlocutory application, by an order dated 25.01.2010, the defendant had been restrained by me from using the infringing mark KRISHNA or any other mark which was deceptively and confusingly similar to the plaintiffs mark. During the course of proceedings, the defendant placed before me an alternate representation to the one which is currently being used by the defendant. The label which the defendant proposes to use, as against the one which it is currently using, was filed formally on 02.11.2010. This filing was preceded by an order dated 01.10.2010 when, the counsels representing the defendant had placed before me during the course of hearing the changes they proposed in their trade mark label for consideration of the plaintiff. At this hearing it was contended by the counsels appearing for the defendant that they had instructions to argue the application for vacation of the ad interim order dated 25.01.2010 on the basis of the suggested trade mark label. This, of course, was without prejudice to their stand taken in the pleadings before me. The reason that I have adverted to this aspect of the matter is, for the reason, that consequent to this step of the defendant, the controversy in issue, in my view, has got substantially narrowed to usage of the word KRISHNA by the defendant as part of its trade mark. The packaging and the colour scheme and the manner of depiction of the word KRISHNA has been altered. I would deal with this in greater detail towards the end of my judgment after I have dealt with the contention of parties.

3. In this background, let me advert briefly to the case set up by the parties. PLAINTIFF’S CASE

4. The plaintiff, it appears, was originally incorporated as a private limited company and thereafter, got converted into a public limited company. The plaintiff avers that it has been in the business of manufacturing and sale of ghee, milk and milk products, as also dairy products etc., for several years. In respect of its trademarks, it is specifically averred that the plaintiff has obtained registration of the label mark KRISHNA which, depicts the picture of Lord Krishna standing on a lotus flower. This label mark has been given the registration number of 597519 and stands registered in respect of milk and dairy products falling in class 29. It is claimed that the mark was advertized in the trade mark journal no. 1206(S) dated 08.09.2009 at pages 107-08. To be noted, I was informed during the course of hearing that the plaintiff is not using the said label mark even though it stands registered in its name. 4.1 The plaintiff also claims registration of the word mark KRISHNA which has a somewhat elliptical contour on the outside. Because of which, the plaintiff claims, that the representation is unique. This mark is, a subject matter of a certificate bearing registration no. 599070. The mark is registered in respect of ghee; once again falling in class 29. The registration relates back to 09.06.1993. 4.2 The third registration has also been obtained in respect of the trade mark KRISHNA and, is similar to the one referred to by me hereinabove, save and except to the extent that the certificate of registration bearing no. 783679B has been obtained in respect of skimmed milk