JAGDISH CHANDRA ( 1 ) IN this suit for the grant of permanent injunction and rendition of account of profits the plaintiff Philip Morris Belgium S. A. , 187-189 Chaussee de la Hulpe, 1170 Bruxelles-Boitsfort, Belgium has moved an application against the defendant Golden Tobacco Company Limited, Tobacco House, Swami Vevekananda Road, Ville Parle West, Bombay under Order 39, Rules 1 and 2 of the Code of Civil Procedure for the grant of temporary injunction till the disposal of the suit whereby the defendant is sought to be restrained from using the plaintiffs registered trade mark "visa" or any other trade mark deceptively similar thereto in relation to its goods. The plaintiff alleges itself to be the registered proprietor of the following trade mark :the said trade mark is further alleged to be valid and subsisting. This trade mark is being used by the plaintiff in relation to cigarettes manufactured by it and sold in a large number of countries of the world but has not been able to sell in India any of its products under this trade mark since recent years because of import restrictions. ( 2 ) IT is further alleged that it was in or about the month of November 1980 that the plaintiff learned from an advertisement appearing in the Times of India Delhi issue of 27th October, 1980 introducting a new brand of cigarettes under the trade mark "visa" but this advertisement did noi indicate the name of the manufacturer and on enquiries made by the plaintiff it was learnt that it was the defendant who had introduced VISA cigarettes which were being sold not only in Delhi but in many parts of the country by the defendant taking advantage of the ban on the import of cigarettes which prevented the plaintiff from selling its cigarettes in India. Thereupon, the plaintiffs trade mark attorneys, Remfry and Son, New Delhi called upon the defendant vide letter dated 27-11-1980 to cease and desist from using the plaintiffs registered trade mark VISA in relation to goods not of the plaintiffs manufacture or any other mark which could be deceptively similar to the plaintiffs aforesaid trade mark. Thereupon, the plaintiffs trade mark attorneys, Remfry and Son, New Delhi called upon the defendant vide letter dated 27-11-1980 to cease and desist from using the plaintiffs registered trade mark VISA in relation to goods not of the plaintiffs manufacture or any other mark which could be deceptively similar to the plaintiffs aforesaid trade mark. No reply having been received from the defendant the plaintiffs attorneys again wrote to the defendant on 17- 3-81 drawing its attention to the earlier letter dated 27-11-1980 and warning of a resort to the law court if no reply was received. A letter dated 25-3-1981 was received by the plaintiffs attorneys from R. K. Dew an and Co. on behalf of the defendant in which the plaintiff was informed that the defendant had already initiated rectification proceedings in respect of the plaintiffs aforesaid trade mark. The rectification proceedings are alleged to be only as a. counter-blast to the plaintiff s aforesaid letter and in anticipation of the proceedings which had been threatened by the plaintiff. The plaintiff after taking legal advice through their aforesaid attorneys from reputed attorneys in New York (USA) filed a suit being S. No. 158 of 1982 on 3-2-1982 against the defendant in this Court. That suit having been inadvertently filed in the plaintiffs former name Weltab S. A. , the same was withdrawn with liberty to file a fresh suit against the defendant in respect of the same subject matter and the necessary permission was granted by the Court on 6-10-1983 whereafter this suit was filed on 26th October, 1983. ( 3 ) THE application was resisted by the defendant. ( 4 ) ADMITTEDLY the defendant-company is using the plaintiffs trade mark VISA on its cigarettes sold in India. There is, thus the identity of the trade-marks and the plaintiff being the registered proprietor of the trade mark VISA, there is a clear infringement of the same on the part of the defendant. ( 4 ) ADMITTEDLY the defendant-company is using the plaintiffs trade mark VISA on its cigarettes sold in India. There is, thus the identity of the trade-marks and the plaintiff being the registered proprietor of the trade mark VISA, there is a clear infringement of the same on the part of the defendant. ( 5 ) IT is contended by the learned counsel for the defendant that the registered trade mark visa of the plaintiff is only in respect of tobacco manufactured and unmanufactured and is not in respect of cigarettes and so the display of the same on the cigarettes of the defendant could not constitute infringement, but this contention does not appear to have any appreciable force in view of the dictionary meaning of the word "cigarette" given in Webster s Third New International Dictionary Volume I according to which cigarette is "a tube of finely cut tobacco enclosed in paper, designed for smoking. " So, the actual constituent of a cigarette is tobacco though enclosed in a paper and for that reason the contention of the learned counsel for the defendant does not appear to have any substance and the infringement of plaintiffs trade mark on the part of the defendant remains quite obvious. ( 6 ) PLAINTIFF-COMPANY is located in Belgium and its cigarettes under its aforesaid trade mark are sold in various countries throughout the world except in India wherein their import has been restricted for some years by the Govt. of India. The defendant has admittedly made an application for rectification of the plaintiffs trade mark visa , which can be taken as an admission on the part of the defendant in regard to the existence of a prima facie case in favour of the plaintiff and the infringement thereof on the part of the defendant. But it is, however, contended that the plaintiffs trade mark is liable to be removed from the register of the Registrar of Trade Marks as also for imposition of limitations on ground of non-use thereof under Sec. 46 of the Trade and Merchandise Marks Act, 1958. But sub-sec. (3) of Sec. 46 provides an exception to the aforesaid general rule when the non-use is occasioned due to special circumstances in the trade and not to any intention to abandon or not to use the trade mark in relation to the goods to which the application relates. But sub-sec. (3) of Sec. 46 provides an exception to the aforesaid general rule when the non-use is occasioned due to special circumstances in the trade and not to any intention to abandon or not to use the trade mark in relation to the goods to which the application relates. The non-use of the trade mark visa , registered in India, on the part of the plaintiff, is not due to any intention on its part to abandon or not to use the trade mark in relation to die goods but it is due to the special circumstance which is the import restriction imposed by the Government of India on cigarettes for which the plaintiff cannot be blamed. M/s Plaza Chemical Industries v. Kohinoor Chemical Co. Ltd. , AIR 1973 Bom 191 has held that the import restriction by the Govt. constitutes special circumstances within the meaning of Sec. 46 (3), justifying non-use of the trade mark. So, the defendant s contention for the removal of the trade mark visa of the plaintiff from the register of the Registrar of Trade Marks or imposition or restriction thereon on ground of non-use does not appear to have any substance. Import and Export Policy for the year 1984-85, in its list of banned items, at item No. 104 pertaining to miscellaneous items shows ban on "all consumer goods" howsoever described. Similar is the position for the import and export policy and in its list of banned items for the year 1983-84. All consumer goods necessarily include cigarettes. ( 7 ) THE contention of the learned counsel for the defendant that the suit is barred by limitation, also does not appear to be borne out from the facts, as at present, on the records of this case. ( 8 ) APPLICATIONS Nos. 358097 and 362162 both dated 24-5-1980 were made by the defendant for registration of the trade mark VISA claiming user thereof since 22nd May, 1980. 1-4-1982 is the date of journal in which these applications appeared when the plaintiff could acquire knowledge of the defendant s applications. The contention of the defendant s counsel that the date 22-5-1980 since when the defendant claimed user of this trade mark ought to have put the plaintiff to file the suit within the statutory period of limitation of three years from that date, cannot be accepted. The contention of the defendant s counsel that the date 22-5-1980 since when the defendant claimed user of this trade mark ought to have put the plaintiff to file the suit within the statutory period of limitation of three years from that date, cannot be accepted. The suit was filed on 27-10-1983, The plaintiff learned for the first time of the infringement of its trade mark, as stated in para 4 of the plaint, through an advertisement in the Delhi issue dated 27;10-1980 of the English daily the Times of India but that advertisement did not indicate the name of the manufacturer and it was only after enquiries that it was found that VISA cigarettes had been introduced and were being sold by the defendant. The making of enquiries also must have taken some time and even otherwise computing the period of three years from 27- 10-1980 the suit filed on 27-10-1983 is within limitation. ( 9 ) EVEN delay oh the part of the plaintiff starting action against the defendant does not appear to be there inasmuch as it was on 27- 11-1980 that the plaintiffs trade mark s attorneys Remfry and Son, New Delhi were instructed by the plaintiff to call upon the defendant to cease and desist from using the trade mark visa and accordingly the said attorneys wrote a letter dated 27-11-1980 drawing its attention to the plaintiffs registration and calling upon the defendant to cease and desist immediately from using plaintiffs registered trade mark or any other word deceptively similar to the same. When no reply was received by the plaintiffs attorneys they again wrote to the defendant another letter on 17-3-1981 drawing its attention to their earlier letter dated 27-11- 1980 stating that if no reply thereto was received the plaintiff would be left with no alternative but to take the matter to the court of law. The plaintiffs attorneys then received a letter dated 25-3-1981 from R. K. Dewan and Co. purporting to have been written on behalf of the defendant in which the plaintiff was informed that the defendant had already initiated rectification proceedings in respect of the plaintiffs aforesaid registered trade mark. The rectification proceedings on the part of the defendant appear to be a counterblast to the plaintiffs aforesaid letters and in anticipation of the proceedings threatened by the plaintiff. The rectification proceedings on the part of the defendant appear to be a counterblast to the plaintiffs aforesaid letters and in anticipation of the proceedings threatened by the plaintiff. The plaintiff then filed a suit on 3-2-1982 against the defendant being Suit No. 158/82 after taking legal opinion from a firm of attorneys located in New York (USA ). But that suit, inadvertently mentioned the plaintiffs former name Weltab S. A. and on plaintiffs counsel seeking, leave of the court to withdraw the said suit with liberty to file a fresh one in respect of that very subject-matter. was granted vide order dated 6-10-1983 whereafter the instant suit was filed on 27-10- 1983. The aforesaid correspondence and legal actions taken by the plaintiff located in Belgium, through its attorneys in Delhi, and the consultations which the plaintiff had to have from trade mark attorneys in New York (USA), reasonably explain away the delay, if any, and rather are suggestive of promptitude on the part of the plaintiff. ( 10 ) THEN the learned counsel for the defendant laid much emphasis on the question of balance of convenience urging that the business of cigarettes of the defendant in India had run into crores of rupees during the period of last 3 years under the trade mark visa whereas the plaintiff was not having any business of cigarettes in India since 3-8-1967, nor had established any factory for manufacture of cigarettes in India in spite of import restrictions and consequently balance of convenience was in favour of the defendant and not in favour of the plaintiff. In Kedar Nath v. Monga Perfumery and Flour Mills, Delhi, AIR 1974 Delhi 12, it was held that temporary injunction must be granted when there is clear infringement of plaintiffs registered trade mark and its right to its exclusive use. As already pointed out above the plaintiff is the proprietor of the registered trade mark visa on account of its registration in India in its favour, and the defendant has been using that very trade mark I without any justification whatsoever and has rather taken advantage of the import restrictions on cigarettes and has thus been deceiving the public in India by inducing belief in them that they are (sic) being sold the cigarettes of the manufacture of the plaintiff which is a company reputed for the same. ( 11 ) IN Atlas Cycle Industries Ltd. v. Hind Cycles Ltd. , ILR (1973) 1 Delhi 393 (at page 405) this Court has said : "in an action for an alleged infringement of a registered trade mark, it has first to be seen whether the impugned mark of the defendant is identical with the registered trade mark of the plaintiff. If the mark is found to be identical no further question arises and it has to be held that there was infringement. " ( 12 ) IN Wearwell Cycle Co. (India) Limited v. Wearwell Industries, Ludhiana (1969) 5 DLT 469 in a case of passing off dealing with the scope of grant of temporary injunction under Order 39 of the Code of Civil Procedure with reference to the balance of convenience, this Court had held that this question was relevant only when at least prima facie the two parties were on the same level and their rights were about equal. This obviously is not so in the case in hand when the defendant has adopted in toto the registered trade mark of the plaintiff which makes it a case of clear infringement casting away the consideration of any balance of convenience. ( 13 ) THE learned counsel for the defendant relied upon Synthetic Moulders v. Samperit Aktiergeselshaft, 1980 Rajdhani LR 263. The perusal of that authority shows that the import of the plaintiff-respondent s combs had been banned in India and thedefendant-appellant had adopted the plaintiffs word matador for the combs manufactured by it. In the matter of temporary injunction this authority held that the nature of the article combs was such that it was of common use by almost every person in this country and for such a common article of small value what one saw was the article itself and the feel of the article in combing the hair and it was only the look and the feel and not the name of the plaintiffs article matador which made the purchasers wished to buy it and the plaintiff was almost totally unknown in India and one would be surprised that a substantial number of persons in the country could be shown to go to the market to buy the combs made by the plaintiff. . . It was further held that if an article of special nature and of higher value made by a renowned manufacturer were concerned, then it could be possible to hold that the purchasers in buying the article made by the defendant would be misled into thinking that they were purchasing the article made by such a renowned maker. In view of the nature of that particular article combs it was held that no such deception could be envisaged. On the balance of convenience it was observed in that very authority that the same was to be determined by relative amount of damage it was likely to result after the injunction was granted and the plaintiff ultimately failed. It was then observed that the damage which would be caused to the defendant could be total and on the contrary no damage would be caused to the plaintiff for the simple reason. that from 1954 onwards the import of plaintiffs combs had been banned in India. The question of balance of convenience could arise in view of the particular facts of that case in view of the particular nature of the article "combs involved therein about which the look and the feel and not the name of the plaintiff s article matador which made the purchasers wish to buy a comb. The cigarettes do not belong to such category of items and the look and the physical feel thereof atone were not the guiding factors for the purchasers to which to buy the cigarettes. The purchasers want first to consume the cigarettes and then to know the quality thereof and in this view of the matter and further for the reason that the defendant had adopted the plaintiffs trade mark in its entirety on its own cigarettes in India, there was a clear case of infringement in which, as already pointed out above on the authorities cited above already, the question of balance of convenience did not matter and the analogy of balance of convenience in the aforesaid authority cannot be attracted for deciding the matter in hand. ( 14 ) FOR the aforesaid reasons and there being a clear case of infringement of plaintiffs registered trade mark "visa in India, on the part of the defendant, the plaintiff is allowed the grant of temporary injunction till the disposal of the suit restraining the defendant from using the plaintiffs registered trade "nark visa or any other trade mark deceptively similar thereto in relation to its cigarettes. It is hardly necessary to emphasise that the observations made in this order shall not affect in any manner the trial and decision of the suit on merits.