Judgment :- This is an application filed under Order XIV Rule 8 of O.S. Rules and Or. 39 Rules 1 and 2 C.P.C. Praying for an ad-interim injunction restraining the defendant/respondent, her servants, agents or anyone claiming through her from in any manner infringing the Trade Mark 'K.P. NAMBOODIRI'S DANTHA MITHRA "trade mark filed as M.O.2 in the plaint or any other trade mark or marks which are in any way deceptively similar to or a colourable imitation of the plaintiff's registered Trade mark "K. P. NAMBOODRI'S DANTHA DAVANACHOORNAM" filed as M.O. 1 in the plaint and from passing off the defendant/respondent's tooth powder bearing the offending Trade mark label 'NAMBOODIRI'S DANTHA MITHRA" * filed as M.O. 2 in the plaint as and for the celebrated tooth powder of the plaintiff/applicant bearing the registered Trade mark label "K.P. NAMBOODIRI'S DANTHADHAVANA CHOORNAM". 2. The partner of the plaintiff, K, Bhavadassan has filed the affidavit submitting that they are well established firm engaged in the manufacture and sale of Ayurvedic tooth powder carrying on business for a long time. The plaintiff and its predecessor-in-title during the course of business adopted a distinctive trade mark "K.P. Namboodiri's Danta Dhavana Choornam' in the year 1928 for the tooth powder manufactured by them. The plaintiff and its predecessors have done extensive business under the aforesaid trade mark. By reason of such long extensive and continuous user the plaintiff's trade mark" * K.P. NAMBOODIRI'S DANTADHAVAN CHOORNAM' had attained great popularity and distinctiveness in the minds of consuming public and that trade mark has come to be associated with that of the plaintiff's goods only and with none-else. 3. The plaintiff's predecessor-in-title, K. Raman Nomboodiri, Managing partner of the plaintiff-firm, has registered the Trade mark "K. P. NAMBOODIRI'S DANTADHAVANA CHOORNAM" in Class 3 under the Trade and Merchandise Marks Act under No. 333 733. It has been renewed from time to time and is in force. By virtue of the partnership deeds dated 1.4.1986, 1.9.1987 and 17.8.1989 the plaintiff has become the subsequent proprietors of the said Trade mark and necessary request has also been filed with the Registrar of Trade marks to bring the plaintiff as subsequent proprietors of the trade mark and the same is pending. 4. By virtue of the partnership deeds dated 1.4.1986, 1.9.1987 and 17.8.1989 the plaintiff has become the subsequent proprietors of the said Trade mark and necessary request has also been filed with the Registrar of Trade marks to bring the plaintiff as subsequent proprietors of the trade mark and the same is pending. 4. During the month of November, 1989, it has come to the notice of the plaintiff that the defendant has started manufacturing and selling tooth powder bearing the identical trade mark "NAMBOODIRI'S DANTHA MITHRA' TOGETHER WITH IDENTICAL COLOUR SCHEME and overall get up. The defendant had deliberately done so with a view to pass off her inferior goods as and for the plaintiff's well established goods bearing the Trade mark 'K.P. NAMBOODIRI'S DANTADHAVANA CHOORNAM' and with a view to enrich themselves unjustly over the reputation earned by the plaintiff for all these years. The unwary purchasers and the consuming public would be easily misled into thinking that the tooth powder sold by the defendant bearing the Trade Mark" * NAMBOODIRI'S DANTHA MITHRA' emanate from the plaintiff. The well established reputation of the plaintiff is seriously affected and hence the plaintiff has filed the suit for permanent injunction. Hence, the application for interim injunction. 5. In the counter filed on behalf of the defendant/respondent by the husband of Smt. Sreedevi K. Namboodiri, the defendant in the suit, the has been submitted that the defendant is currently running a Small Scale Industrial Unit in the name and style of Namboodiri's Danta Mitra Tooth Powder Industry at Kallur Post, Vadakkedad. The unit was started by the deponent of the counter affidavit, namely the husband of the defendant, and the main business is to manufacture and market an Ayurvedic tooth powder in the name and style of Namboodriri's Danta Mitra Tooth Powder. In the year 1986 he secured employment in the Kerala State Road Transport Corporation and made over the business in favour of his wife. The certificate issued by the Small Scale Industry stands in the name of his wife since 12.2.1987. 6. Gangadhara Namboodri, grand-father of the deponent was well known in his time for preparing Ayurvedic medicines and he was particularly well-known for his Ayurvedic Tooth Powder. His eldest son K. P. Namboodiri popularised the Tooth powder and marketed and same in the name and style of "Dantadhavanachoornam" with the business address K. P. Namboodiri & Sons. 6. Gangadhara Namboodri, grand-father of the deponent was well known in his time for preparing Ayurvedic medicines and he was particularly well-known for his Ayurvedic Tooth Powder. His eldest son K. P. Namboodiri popularised the Tooth powder and marketed and same in the name and style of "Dantadhavanachoornam" with the business address K. P. Namboodiri & Sons. K. B. Namboodiri died in 1958 leaving three sons, Gangadhara Namboodiri, Raman Namboodiri and Krishnan Namboodiri (Deponent) and the deponent was a minor at that time. Since 1958 Raman Namboodiri took over the business and styled his unit as K.P. Namboodiri's Dantadhavanachoornam. The eldest brother also carried on the business as K. G. Namboodiri's Bhavadas Oushada Palpodi. He called his unit as K. G. Namboodiri and sons. Both of them adopted the bust of the picture of his father K. P. Namboodiri as the central and essential piece of the label. 7. In 1980 he started the unit in the name and style of Namboodiri's Danta Mitra Tooth powder and adopted the picture of his father as the central piece of the label. The manufacturing units of the elder brother Raman Namboodiri as well as his are inside the same compound with a wall in between. The unit of Gangadharan Namboodiri is in the next compound. To the knowledge of each other and to the knowledge of the public they manufacture and trade in tooth powder as per the formula given by the grand father in the following three styles: Ganghadharan Namboodire: Bhavadas Tooth Powder with bust of K.P. Namboodiri. Raman Namboodiri K.P. Namboodiri's Dantadhavanachooram, Ayurvedic tooth powder with the bust of K.P. Namboodiri. Krishnan Namboodiri/ Danta Mithra Tooth Powder with the bust of the Sri Devi Namboodiri's father K.P. Namboodiri. 8. The common characteristics of all the labels are: i) Name of Namboodiri ii) Bust of K. Namboodiri iii) Word Tooth Powder: The only differentiation is the Sanskrit word Bhavadas Danta Davan Choornam, and Denta Mitra. These are the three names by which the tooth powder made by the three brothers according to the same formula can be differentiated. 9. Himself and his wife have been adopting the style of Namboodiri Denta Mitra Tooth powder since 1980 can be proved by Certificate dated 3.11.1982 issued by the Directorate issued by Government of Kerala, by the letter and other communication and receipts. 10. 9. Himself and his wife have been adopting the style of Namboodiri Denta Mitra Tooth powder since 1980 can be proved by Certificate dated 3.11.1982 issued by the Directorate issued by Government of Kerala, by the letter and other communication and receipts. 10. It is wrong to state that it was brought to the notice of the plaintiff recently that the defendant started business of tooth powder with the trade mark Namboodiri Danta Mitra. Namboodiri's Danta Mitra has been in existence since 1980. Namboodiri is the name of a community and none can claim exclusive right over the word Namboodiri. The picture of the father has been utilised by all the brothers in the respective trade of tooth powder, and on and analysis of the Trade Mark registered under No. 333 733 what is registered is the totality of the picture and not the individual parts. The word Namboodiri belongs to the entire community. As for the word tooth powder they are not Trade mark. As for the picture of the bust of K. P. Namboodiri the father of Gangadharan, Raman Namboodiri and Krishnan Namboodiri, all the three brothers have been using the picture. The Registration certificate contains a note that the registration will not give exclusive right for the words "Danta Dhavanam" to the plaintiff. In view of the same the charge that the defendant is infringing the Trade Mark is unsustainable. As for the charge of passing off, the goods are not sold within the jurisdiction of this Court and such a charge cannot be agitated in the present suit. 11. It has been claimed in the application for registration by the plaintiff that they had been using the label all alongwith the bust of the father's picture since 1928. It cannot and is not true. During the life time of K. P. Namboodiri the picture was not a part of the label and it was only after the death of his father the three sons began to utilize the picture of the father at the central piece of the respective label. Their father died in the year 1958 when his father was aged about 22 years. Hence, the claim of user by the plaintiff since 1928 cannot be true. 12. The suit for infringement of the trade mark has been filed by the partnership firm. Their father died in the year 1958 when his father was aged about 22 years. Hence, the claim of user by the plaintiff since 1928 cannot be true. 12. The suit for infringement of the trade mark has been filed by the partnership firm. But the trade mark has been registered in the name of the proprietorship concern. It has been stated in the plaint that ownership of the Trade Mark has been made over twice. But no documentary proof has been filed alongwith the plaint. Unless and unlit it is recorded in the Register of Trade Mark no one can claim exclusive proprietorship except the person in whose name the mark stands on date. Hence, the suit filed by the firm is no maintainable. Hence, it has been prayed that the application has to be dismissed with costs. 13. The applicant/plaintiff has filed the reply affidavit denying the averments made in the counter and calling upon the defendant prove that she is manufacturing and selling Ayurvedic Tooth Powder in the name of Namboodiri's Danta Mitra Tooth Powder from 1987. The issue of certificate admittedly is only on 12.2.87. Denying other averments made in the counter it has been submitted that the defendant started manufacturing and selling of the tooth powder with the offending mark only recently and the defendant/respondent is to strict proof of the averment that she is manufacturing and selling tooth powder with the offending mark from 1987. The user of the trade mark in question from 1980 has also been denied. Further, according to the plaintiff, the defendant started manufacturing tooth powder with the offending mark only recently and it is not correct that the defendant is manufacturing the tooth powder in the formula given by the grand-father of the deponent. Under the partition deed dated 17.8.1977 entered into between the family members of the plaintiff's partner and the defendant, the trade mark in question and the bust of the late K.P. Namboodiri was assigned in favour of Raman Namboodiri and others who are the partners in the plaintiff firm. 14. The plaintiff's trade mark is registered under the Trade and Merchandise Marks Act by the Authorities concerned after taking into consideration of all the averments made by the deponent and under the partition dated 17.8.1977 the trade mark in question was allotted to the partners of the plaintiff firm alongwith the business. 14. The plaintiff's trade mark is registered under the Trade and Merchandise Marks Act by the Authorities concerned after taking into consideration of all the averments made by the deponent and under the partition dated 17.8.1977 the trade mark in question was allotted to the partners of the plaintiff firm alongwith the business. The plaintiff is therefore entitled to exclusive right over the trade mark in entirety. The defendant is not entitled to use any portion of the plaintiff's registered trade mark after the same was allotted to the share of the plaintiff's partners under the partition deed. The plaintiff has got exclusive right to use the label registered under No. 333 733 in entirety. Considering the period of user the Registrar of Trade Marks has registered the plaintiff's trade mark. Necessary application has been filed to bring on record the name of the subsequent proprietors of the trade mark who are the partners of the plaintiff and the same is pending. The plaintiff is therefore entitled to maintain the suit. 15. The plaintiff and its predecessor in title were using the bust in question since 1928. As per the partition deed dated 17.8.1977 the entire trade mark has been allotted to the share of the plaintiff's partners in entirety inclusive of the bust in question. The plaintiff alone is entitled to use the said trade mark including the bust of Pothayan Namboodiri. The defendant has not made out a case for vacating the ad-interim injunction already granted. Hence, it has been prayed to confirm the interim injunction passed and allow the application with costs. 16. The point that arises for consideration in this application is as to whether the applicant/plaintiff is entitled to order of interim injunction as prayed for till the disposal of the suit? 17. Hence, it has been prayed to confirm the interim injunction passed and allow the application with costs. 16. The point that arises for consideration in this application is as to whether the applicant/plaintiff is entitled to order of interim injunction as prayed for till the disposal of the suit? 17. The Point: The suit has been filed praying for (a) permanent injunction restraining the defendant by herself her servants or agents or anyone claiming through her from in any manner infringing the plaintiff's trade mark "K.P. NAMBOODIRI'S DANTADHAVANA CHOORANAM' by using the offending trade mark" * NAMBOODIRI'S DANTHA MITHRA' or any other trade mark or marks which are in any way deceptively similar to or a colourable imitation of the plaintiff's registered trade mark either by manufacturing or selling or offering for sale or in any manner advertising the same; (b) for permanent injunction restraining the defendant by herself, her servants or agents or anyone claiming through her from in any manner passing off of the defendant's tooth powder as and for the tooth powder of the plaintiff by using the offending trade mark 'NAMBOODIRI'S DANTHA MITHRA'. (c) directing the defendant to render a true and faithful account of the profit earned by her through the sale of tooth powder bearing the offending trade mark 'NAMBOODIRI'S DANTHA MITHRA' and (d) directing the defendant to surrender to the plaintiff the entire stock of unused offending trade mark labels 'NAMBOODIRI'S DANTHA MITHRA' and for costs. 18. One Pothayan Namboodiri is stated to be father of K. Raman Namboodiri, Managing partner of the Plaintiff-concern. The said Pothayan Namboodiri is said to have started manufacturing and selling of Ayurvedic tooth powder under the trade mark of K. P. Namboodiri's Dantadhavana Choornam ". According to the plaint, the plaintiff's Managing partner K. Raman Namboodiri and his father Pothayan Namboadir were jointly running the business during the life time of Pothayan Namboodir. After the death of Pothayan Namboodiri, Rama Namboodiri continued the business under the trading style K.P. Namboodiri's Danthadhavana Chooranam works and there was a partition deed in the family with regard to family properties and the business is stated to have been allotted to the share of K. Raman Namboodiri, his wife and children in the year 1977 under a registered partition deed. Subsequently the said Raman Namboodiri is stated to have registered the trade mark" * K. P. Namboodiri's Dantadhavana Chornam' in Class 3 under Trade and Merchandise Marks Act under No. 333 733. It is also stated to have been renewed from time to time and is stated to be in force. The said Raman Namboodiri is also stated to have entered into a partnership on 1.4.1986 with Umadevi, K Rama Devi and Bhavadasan is partners of the firm, and subsequently it was enlarged by including K. Sankaranarayann Namboodiri, Smt. Parvuthi and Mr. P. Bhavadasan as partners under a fresh partnership dated 1.9.1987. Thereafter on 17.8.1989 Kumari K. Maya was taken as partner and a fresh partnership had been formed and thus it is stated that there are 8 partners, and the partnership firm claims to be the corner of the trade mark "K.P. Namboodiri's Dantadhava Choornam' and in this connection it is stated necessary application has been made by the plaintiff-firm to bring them as subsequent proprietors of the trade mark. 19. In the plaint sales turn over from the years 1976-77 to 1988-89 have been given. The plaintiff thus claimed that the trade mark" * K.P. Namboodiri's Danthadavans Choornam' had attained great popularity and distinctiveness. 20. It has been claimed by the applicant/Plaintiff that only recently the defendant started manufacturing and selling tooth powder bearing trade mark NAMBOODIRI'S DANTHA MITHRA' together with identical colour scheme and get up the over all similarity, and thus according to the applicant/plaintiff the said act on the part of the defendant constitutes infringement of the registered trade mark as well as passing off. On the other hand, it has been contended on behalf of the respondent/defendant that originally Krishnan Namboodiri husband of the defendant Sreedevi K. Namboodiri, was running a small scale Industrial Unit in the name and style of Namboodiri's Danta Mitra Tooth Powder Industry and he started the unit in the year 1980 and started manufacturing Ayurvedic Tooth Powder in the name and style of Namboodiri's Danta Mithra Tooth Powder. As he secured employment in Kerala State Road Transport Corporation, he made over the business in favour of his wife and the business changed in the name of his wife from 12.2.87. 21. As he secured employment in Kerala State Road Transport Corporation, he made over the business in favour of his wife and the business changed in the name of his wife from 12.2.87. 21. It has been further contended that the grand father Gangadhara Namboodri was well known in his time for preparing Ayurvedic medicines and his eldest son K.P. Namboodiri popularised the product and marketed and same in the name and style of Dantadhavana Choornam with the business address K.P. Namboodiri & Sons. Therefore, it is clear that the plaintiff and the husband of the defendant are the sons of Pothayan Namboodiri and the said Pothayan Namboodiri had manufactured and marketed "tooth powder' under the trade mark" K.P. Nomboodiri's Dantadhavan Choornam "with the business address K.P. Namboodiri's & sons. The said K.P. Namboodiri is stated to have died in the year 1958 leaving his three sons, Gangadhara Namboodiri, Raman Namboodiri and Krishnan Namboodiri. 22. In the counter it has been stated that Raman Namboodiri took over the business and styled his unit as K.P. Namboodiri's Dantadhavana Choornam. On the other hand, eldest brother Gangathara Namboodiri's is started to have carried on business as K.G. Namboodiri's Bhavadas Oushada Palpodi and he called the unit as K. G. Namboodiri and sons, and it is also stated that both of them adopted the bust of the picture of the father K.P. Namboodiri as the central and essential piece of the label. There is no mention in the counter of the partition deed dated 17.8.1977. The said document is stated to be in Malayalam and English translation has been provided. Under the said document Pothayan Namboodiri's sons and daughters have divided the properties and under clause 5 of the said partition deed tooth powder business along with right, title and interest was to be enjoyed by the first branch, namely Raman Namboodiri and his wife and childer Krishnan Namboodiri, husband of the defendant is stated to have started a unit under the name and style of Namboodiri's Danta Mitra and adopted the picture of the bust of his father as the central piece of the label. Thus, all the brothers claimed to be doing manufacture and sale of Ayurvedic tooth powder the eldest brother Gangadhara Namboodiri carried on business under the name and style of Bhavadas Oushada Palpodi and Raman Namboodiri (plaintiff's Managing partner) as K.P. Namboodiri's Dantha dhavana chooram and the defendant's husband Krishnan Namboodiri as Namboodiri's Danta Mitra tooth powder and of them claimed to have put the bust of K.P. Namboodiri. According to the respondent, the respondent's husband had been doing the business from the year 1980 and subsequently from the year 1987 the respondent/defendant is carrying on business under the name and style of Namboodiri's Danta Mitra Tooth powder. The respondent/defendant's trade mark is not a registered one, but the respondent has filed certain documents to show that her husband started business from the year 1980 and she took over the business from 1987. There are documents right from the year 1982 in respect of the business alleged to have been carried on by the respondent's husband and documents are there from the year 1987 to show that the respondent carried on business. Having regard to the documents produced by the respondent, the contention put forward on behalf of the respondent that the case of the applicant/plaintiff that only recently the respondent started the business is wrong appears to be acceptable. From the documents produced by the respondent/defendant it may be stated that the respondent has not started the business only recently and there is material to show that the respondent's husband could have started the business even in the year 1980 and subsequently when he joined Kerala State Road. Transport Corporation she took over the business. 23. Though the applicant has stated that the business is being carried on from 1928, it is clear that only after the death of the father of the plaintiff and respondent's husband in the year 1958 the applicant/plaintiff's Managing partner Raman Namboodiri can be stated to have continued the business. Though the father died in the year 1958, the partition took place in the year 1977 and the partition document is dated 17.8.77. Under the partition deed full right title and interest of the tooth powder business with the label carrying the block with the photo of late Pothayan Namboodiri and in the name and style of "K.P. Namboodiri's Dantadhavana Choornam" was allotted to the first branch consisting of Raman Namboodiri and others. Under the partition deed full right title and interest of the tooth powder business with the label carrying the block with the photo of late Pothayan Namboodiri and in the name and style of "K.P. Namboodiri's Dantadhavana Choornam" was allotted to the first branch consisting of Raman Namboodiri and others. In the partition deed there is no mention of the registered trade mark. Certificate of registration is dated 28.2.78 and it has been issued during October, 1980. The respondent the produced an affidavit from Ganghadharn Namboodiri eldest brother of her husband aged about 63 years and the said affidavit disclosed that their family was engaged in the manufacture and sale of tooth powder and they have been carrying on business for a pretty long time and their father K.P. Namboodiri introduced a tooth powder as" * Danthadhavana Choornam' with the address K.P. Namboodiri & Sons. After the death of the father in 1958 properties were partitioned in the year 1959 and the petitioner (Raman Namboodiri) and Ganghadharan Namboodiri are manufacturing tooth powder under the name and style of 'Bhavadas Oushadh Palpodi "in the address of K. G. Namboodiri & Sons from 1959 and other members of the family are fully aware of the manufacturing of the tooth powder and from 1980 onwards his brother Krishnan Namboodiri started to manufacture 'Dantha Mithra" * in the address Namboodiri's Dantha Mithra tooth powder. Raman Namboodiri was fully aware of the manufacture of the above-mentioned tooth powders from 1980 onwards. After his appointment in the Kerala State Road Transport Corporation the unit was changed into his wife's name and his wife is continuing the manufacture and sale of the same. It could be seen from the said affidavit that the respondent husband has started the business from the year 1980, and part from that it is clear that right from the year 1959 Ganghadharan Namboodiri, eldest of the three brothers, was also doing tooth powder business under the name and style "Bhavadas Oushadh Palpodi" 24. As regards the manufacture and sale of the tooth powder if has been stated in the counter itself that he is selling the tooth powder with the trade mark containing the bust of D. P. Namboodiri. In the reply filed by the applicant/plaintiff there is no denial of the said fact. As regards the manufacture and sale of the tooth powder if has been stated in the counter itself that he is selling the tooth powder with the trade mark containing the bust of D. P. Namboodiri. In the reply filed by the applicant/plaintiff there is no denial of the said fact. So from the year 1959 onwards Gangadhara Nomboodiri was also doing tooth powder with the label containing the picture of their father no doubt with the name of 'Bhavadas Oushadh Palpodi'. The respondent has also given the premises of the tooth powder. Raman Namboodiri had been selling the tooth powder with the trade Namboodiri's Dantha davana choornam' only the year 1987. The trade mark has been registered by Raman Namboodiri. Therefore it is clear that from the year 1959 onwards Gangadhara Namboodiri is also doing the same manufacture and sale of tooth powder without any opposition and Rama Namboodiri is also doing the manufacture and sale of tooth powder with the label containing the bust of his father. On a look at both the tooth powder labels of the applicant/plaintiff and the respondent it can be stated that they are similar. No doubt, according to the applicant, Raman Namboodiri had registered the trade mark and subsequently it had been assigned by him to the partnership. All along there had been no opposition to Namboodiri's use of the label containing the bust of their father. In the Registration certificate issued to Raman Namboodiri which has been renewed in the year 1980. It has been stated that registration of trade mark shall give no right to the exclusive use of the word 'Danta dhavana choornam'. Gangadhara Namboodiri's tooth powder name as 'Bhavadas Oushadh Palpodi' contains the name of Bhavadas' and 'Oushadah Palpodi' means medicinal tooth powder. Likewise the respondent's Dantha Mithra' can be said to be meaning a friend of tooth perhaps describing the character of the tooth powder. Gangadhara Namboodiri's tooth powder name as 'Bhavadas Oushadh Palpodi' contains the name of Bhavadas' and 'Oushadah Palpodi' means medicinal tooth powder. Likewise the respondent's Dantha Mithra' can be said to be meaning a friend of tooth perhaps describing the character of the tooth powder. Taking into consideration the fact that the family itself was engaged in the manufacture of tooth powder from their grandfather's time and they had known the formula, I feel since the respondent's husband started the business under the name of "Dantha Mithra" which can be said to be a distinctive word for the tooth powder manufactured by the respondent, Section 34 of the Trade and Merchandise Act will be attracted and it may not be open to the applicant to seek an order of injunction against the respondent. Having regard to the fact that Gangadhara Namboodiri also started the manufacture of tooth powder and is selling the tooth powder with the label containing the bust of the father, I feel on the basis of the applicant's registered trade mark the applicant cannot claim to be entitled to an order of injunction as the applicant has failed to restrict the sale of the tooth powder with the label containing the bush of their father by Gangadhara Namboodiri. 25. It may also be stated that the word 'Namboodiri' indicates name of the caste and the trade name as "K.P. Namboodiri's Dantha davana choornam' used by the applicant cannot be said to be giving any exclusive property in the words to the applicant or to Raman Namboodiri The 'Dantha Mithra" * used by the respondent and earlier by her husband for the tooth powder manufactured and sold by them can be said to be bona fide used for the tooth powder manufactured by them. In such circumstances I feet it cannot be contended that there has been infringement of the registered trade mark by the respondent. 26. The learned counsel for the applicant submitted the decision reported in 38 R. P. C. 373 (In the matter of an application by the Diamond T. Motor Car Company.) It is a decision rendered by Chancery Division in the matter of an application by the Diamond T. Motor Car Company to register a trade mark. The application for registration was not accepted by the Registrar and on appeal it was directed to be registered. The application for registration was not accepted by the Registrar and on appeal it was directed to be registered. The registrar had refused to register earlier having regard to the fact there were already two registered trade marks called Diamond Kohinoor and Diamond Delta. It has been held that having regard to the proposed trade mark of the applicant the public would not mistake applicant's trade mark for either of the other marks. I am not able to see as to how the said decision will be of any use to the case of the applicant/plaintiff. 27. The learned counsel for the applicant also submitted decision with regard to the maintainability of the suit by the applicant/plaintiff, since it was contended on behalf of the respondent that the trade mark has been registered only in the name of Raman Namboodiri but subsequently the trade mark has been claimed by the partnership concern. In this regard it has been contended that application have been filed for transfer of the registered trade mark in the name of the partnership concern. In as much as the application is stated to be pending , I feel there could be no impediment for filling the suit. No doubt, it is for the applicant/plaintiff to establish the fact that such an application had been filed seeking transfer in the name of the partnership concern. 28. The learned counsel for the respondent placed reliance in the decision reported in M/s K. B. Hiralal & Sons Vs. M/s Kumar Industries (1985 Arbitration Law Reporter 265). The said decision related to a case in respect of a registered trade mark as 'Julie' It was contended that the said trade mark was neither novel nor originated by the plaintiff. It was held that the defendants could not be restrained from using the trade mark 'Julie "on their product. 29. Having regard to the fact that the tooth powder business was a family business and after the death of the father of Raman Namboodiri, Gangadharan Namboodiri and the respondent's husband, the family business was continued by Raman Namboodiri, but at the same time Gangadharan Namboodiri also carried on manufacture and sale of the tooth powder and in the year 1980 the respondent's husband has started the business. Till about the year 1978 when Raman Namboodiri registered the trade mark, Gangadhara Namboodiri also was using the similar label containing the bust of the father with distinctive words to the tooth powder. Similarly from the year 1980 onwards the respondent's husband started the manufacture of the tooth powder with the name" * Dantha Mithra' with similar label. In such circumstances I feel the applicant is no entitled to an order of injunction. Accordingly I find the interim injunction already granted has to be vacated. 30. In the result, the application is dismissed vacating the interim injunction, but in the circumstances of the case no order as to costs.