JUDGMENT S.H. Kapadia, J. - The above notice of motion has been taken out by the plaintiff company seeking temporary injunction, pending the hearing and final disposal of the suit, against the defendants from infringing the 'plaintiffs' trade mark 'Cartier' registered under No. 289890 in Class 16 by use of the impugned trade mark 'Cartier' or any other trade mark deceptively similar to plaintiffs' registered trade mark 'Cartier' in relation to pens, pencils and other stationery articles. By the said notice of motion the plaintiffs have also sought injunction pending the hearing and final disposal of the suit against the defendants, their partners, servants, agents, distributors from manufacturing, selling or otherwise dealing in the above stationery articles bearing the trade mark or any other mark deceptively similar to the plaintiffs' trade marks "Cartier, Santos De Cartier, Must De Cartier" so as to pass off or as would be likely to pass off or enable others to pass off the defendants' goods as the goods of the plaintiffs. 2. The facts giving rise to the notice of motion are as follows: (a) The plaintiff is a company Organised under the laws of Netherlands. The plaintiffs have its registered office at Herengracht 436, Amsterdam. The plaintiffs and their subsidiary companies are internationally reputed in connection with the manufacture and sale of Jewellery, cigarettes, leather, pens, perfumes etc. (b) The plaintiffs and their subsidiaries have been using the trade mark "Cartier" as a trade mark and as a part of their trade name in respect of the products including pens. The plaintiffs and their subsidiaries have acquired world-wide reputation in respect of the pens and other stationery articles as also jewellery, leather goods etc. The plaintiffs sell their goods under the trade mark "Cartier", which has exclusive character. (c) Defendant No. 4 is a partnership firm. They are carrying on business of manufacture and marketing of fountain pens, point pens etc. Defendant No. 5 is the distributor or pens manufactured by defendant No. 4 (the partners of defendant No. 4 are defendants 1 to 3 in the suit). (d) It is the case of the plaintiffs that "Cartier" has been in the business of manufacturing and selling watches, jewellery for at least hundred years. Cartier enjoyed regular patronage from Indian Maharajas and Princes from 1909. The products of Cartier are patronized by elite society of India. (d) It is the case of the plaintiffs that "Cartier" has been in the business of manufacturing and selling watches, jewellery for at least hundred years. Cartier enjoyed regular patronage from Indian Maharajas and Princes from 1909. The products of Cartier are patronized by elite society of India. (e) The above trade mark of the plaintiffs "Cartier" was registered under No. 289890 on 2nd August, 1973 in Class 16 for stationery, paper and cardboard articles, fountain pens, pencils, paper weights and other stationery articles. (f) The plaintiffs are also registered proprietors of trade mark "Santos De Cartier" in Class 16 on and from 14th November, 1980 in respect of papers, cardboard articles etc. (g) It is the case of the plaintiffs that several customers in India have been purchasing the products of the plaintiffs whenever they visit abroad; that several enquiries in India regarding spare parts and servicing of Cartier products are regularly made; that sales of Cartier products are made in duty free shops and ITDC; that the products of the plaintiffs have been sold in Pakistan, Hong Kong, Singapore, Saudi Arabia etc. Statement of sales of Cartier pens is enclosed and marked as exhibit D to the plaint. In the circumstances, it is submitted that the plaintiffs have acquired proprietory rights in the said trade mark "Cartier" and the plaintiffs are entitled to exclusive use in respect of products in Class 16. (h) Some time in March 1988, the plaintiffs became aware that the defendants have applied for registration of trade mark "Cartier" vide Application No. 406854 in Class 16 in respect of pencil, pens and other stationery articles. The said application of the defendants was advertised in Trade Mark Journal No. 903 dated March 1, 1988. (i) Accordingly, notice of opposition was filed by the plaintiffs on 27th June, 1988 which is pending before the Registrar of Trade Marks. (j) In the circumstances, the above suit has been filed by the plaintiffs on 29th November, 1989 on the ground that the defendants were well aware of the international reputation and goodwill acquired by the plaintiffs in respect of goods sole under the trade mark "Cartier" and in spite of this knowledge the defendants have copied an identical trade mark "Cartier" in respect of pens, pencils and other stationery items to trade upon and benefit from the reputation and goodwill enjoyed by the plaintiffs and its subsidiaries. (k) By affidavit-in-reply to the notice of motion filed by the second defendant, the case of the defendants is as follows: The defendants are carrying on business in partnership prior to 1st January, 1984 in the name and style of "Triplex Products" (i.e. 4th defendant); that the said partnership stood dissolved from 1st January, 1984; that the second defendant took over the entire business as a going concern together with all the assets of Triplex Products including trade mark of the firm; that the said Trimplex Products has been openly carrying on business of manufacturing and selling ball-pens, pencils etc. since 1981; that the plaintiffs have filed a suit in November 1989 and therefore, there was delay in filing the suit; that the said Triplex Products has sold ball-pens bearing trade mark "Cartier" continuously and extensively since 1981; that when the fourth defendant adopted the said mark, it was not aware of the plaintiffs' mark; that the goods of the plaintiffs are not sold in India and that have no reputation in the Indian market and amongst general purchasing public; that the products of the plaintiffs are exclusive and they are meant only for the persons like, Kings, Queens, Maharajas etc. and not for ordinary persons; that the products of the plaintiffs are not available in the Indian market; that the defendants adopted the trade mark in 1980 honestly and bona fide and the defendants' firm is using the trade mark since then; that the firm has advertised for the popularity of the goods in newspapers etc.; that the invoices relied upon also show that the firm's products have been sold under the trade mark 'Cartier' since 1980, 1981, 1983 and 1986, whereas the products of the plaintiffs are available only in duty free shops; that the defendants are taking proceedings for removal of the trade mark of the plaintiffs which has been registered on 2nd August, 1973 in respect of pens, pencils and other stationery articles and in the circumstances, the defendants have averred that the interim, relief should not be granted in favour of the plaintiffs. 3. The above facts indicate that the plaintiffs' trade mark is registered on 2nd August, 1973 in respect of pens, pencils and other stationery items. The above facts also indicate wide reputation of the plaintiffs in India as also in the international market. 3. The above facts indicate that the plaintiffs' trade mark is registered on 2nd August, 1973 in respect of pens, pencils and other stationery items. The above facts also indicate wide reputation of the plaintiffs in India as also in the international market. The said wide reputation is reflected in various magazines referred to in the plaint. This fact is not denied by the defendants. The only defence raised by the second defendant as a sole proprietor of Triplex Products was that his firm has been selling ball pens bearing trade mark "Cartier" continuously and extensively since 1981. In that connection he has placed reliance on certain advertisements showing popularity of the goods manufactured by the fourth defendant and also invoices in respect of firm's products sold under the said trade mark "Cartier" since 1980. It is the case of the second defendant that his firm Triplex Products is manufacturing and selling the goods since 1980 and in the circumstances the products of the defendants have been manufactured and sold openly, continuously and extensively since 1981. There is no merit in the said contention of the defendants. Prima facie, the defence appears to be dishonest. The defendants applied for registration of trade mark "Cartier" with application No. 406854 in Class 16 only in or about March 1988. The matter is pending before the Registrar of Trade Marks. The advertisements relied upon by the second defendant in his affidavit-in-reply to show sale of the fourth defendant's products in newspapers like Times of India, Maharashtra Times etc. only indicate that the said advertisements are of 1987 and they do not indicate that the said sales have taken place in 1980 as alleged. Secondly, despite inspection being sought by the plaintiffs of the invoices on which the defendants have placed reliance, the same has not been offered to the plaintiffs. Only duplicate copies of the invoices have been furnished to the plaintiffs. Moreover, the said invoices appear to be prima facie, fabricate. The word "Cartier", prima facie, appears to have been typed subsequently in Exhibits 3A' to 3H'. Only duplicate copies of the invoices have been furnished to the plaintiffs. Moreover, the said invoices appear to be prima facie, fabricate. The word "Cartier", prima facie, appears to have been typed subsequently in Exhibits 3A' to 3H'. Further the said Exhibit 3B and Exhibit 3D to 3H are the invoices which reflect the transactions between the fourth defendant and defendant No. 5 who has also filed application for registration on 18th February, 1988 and therefore, it is clear that the said defendants are acting collusively and they are trying to usurp the plaintiff's trade mark "Cartier". It may also be mentioned that in March 1988, the fourth defendant applied for registration in which the defendants have conveniently failed to disclose the date from which they have been using the said trade mark. Even in the advertisements issued in the Trade Mark Journal, the period of user has not been disclosed. In the circumstances, prima facie, it is not possible to accept the contention of the defendants that they have been manufacturing and marketing pens, pencils etc. since 1980 and it appears that the said business has started only in the year 1987-88. In the circumstances, the defendants have not come to this court with clean hands and prima facie it is clear that there is no honest and concurrent use by the defendants as claimed by them. On the other hand, the plaintiffs are internationally well renowned in connection with the manufacture and the distribution of pens, pencils and other stationery items. The plaintiffs have registered their trade mark "Cartier" under the Act, which requires to be protected. The word "Cartier" is not a common-place surname in India and the defendants have not explained why they chose to use "Cartier" as the trade mark for their products. The defendants have copied the Plaintiffs' trade mark "Cartier" in entirety. The defendants have also adopted particular script used by the plaintiffs which also indicates that the defendants intended to take unfair advantage of the reputation and the fame of the trade mark of the plaintiffs as also the trade name of the plaintiffs. It is also clear that the defendants have sought to mislead the public by creating the fake impression that the goods are endorsed by the plaintiffs. It is also clear that the defendants are continuing to pass off their products as and for the products of the plaintiffs. It is also clear that the defendants have sought to mislead the public by creating the fake impression that the goods are endorsed by the plaintiffs. It is also clear that the defendants are continuing to pass off their products as and for the products of the plaintiffs. The above facts clearly indicate that there is no continuous and concurrent use on the part of the defendants and in the absence of the said defence the plaintiff's trade mark which is registered requires to be protected particularly as the plaintiffs are registered proprietors of the trade mark and the said trade marks is associated exclusively with the plaintiffs. The said facts also indicate the world wide reputation of products of the plaintiffs, whereas in the absence of inspection and in view of the doubtful credibility of the invoices on which reliance is placed by the defendants, it is clear that the defendants are also trying to pass off their goods as the goods of the plaintiffs in India. It is also clear that the script adopted and used by the defendants also indicates deception prima facie being caused in the minds of the public in India. 4. The learned counsel appearing on behalf of the defendants, however, submitted that apart from parity of trade marks, the Court should also look at the type of customers who deal with the products, the trade channels as also prices of the commodity. He further submitted that the plaintiffs do not sell their products in India. He further submitted that the goods sold by the plaintiffs are extremely costly and the said goods are purchased by elites. He further submitted that the trade channels and the types of customers are quite different and in the circumstances ordinary Indians are not aware of reputation of foreign manufacturer and therefore, there was no question of infringement of trade mark as alleged by the plaintiffs. He further submitted that the defendants have been using the trade mark from 1980-81 without the knowledge of the plaintiff's mark and therefore, there is bona fide adoption by the defendants of the plaintiff's trade mark. He further submitted that no action was taken from 1980 onwards by plaintiffs and in the circumstances the plaintiffs were not entitled to equitable relief. He further submitted that no action was taken from 1980 onwards by plaintiffs and in the circumstances the plaintiffs were not entitled to equitable relief. He further submitted that equitable relief should be refused as the plaintiffs were not selling the goods with the mark in India and in the circumstances the plaintiffs have no reputation in India in relation to the said goods and therefore, there was no question of action in passing off. Alternatively, he further submitted that even assuming that the plaintiffs will have reputation in India, having regard to the type of goods sold by the plaintiffs, there is no question of deception. The above defence is in reply to the plaintiffs' action in passing off. There is no merit in the said submissions for the reason that the defendants have prima facie suppresed the material facts. Although in the affidavit-in-reply the defendants have averred that they are using the mark from 1980-81 and that they placed reliance on the invoices referred to above, there is no evidence even prima facie to support the case of the defendants. As indicated above, the advertisements in Times of India etc., relied upon by the defendants only show user of the trade mark from 1987-88 by the defendants and not from 1980 as alleged. Prima facie, the invoices also indicate fabrication by the defendants. The said invoices are only with regard to supply of goods between the defendants inter se. The word 'Cartier' has been incorporated in the invoices which is prima facie made clear if one refers to the above Exhibits 3A to 3H annexed to the affidavit-in-reply to the above notice of motion. Further only in March 1988, the defendants applied for registration of the trade mark 'Cartier' with application No. 406854. No reason has been given as to why the said application was not made prior to 1988. Further even the advertisement in the Trade Mark Journal No. 903 dated 1st March, 1988 pursuant to the application made by the defendants for registration, does not indicate user from 1980 as claimed by the defendants. In view of the above facts, it is clear that the defendants have not been making use of the trade mark 'Cartier' continuously and extensively from 1981 as alleged by the defendants. In view of the above facts, it is clear that the defendants have not been making use of the trade mark 'Cartier' continuously and extensively from 1981 as alleged by the defendants. It may also be noted that even inspection of the invoices on which the reliance has been placed by the defendants to show that they have been manufacturing and selling the above goods since 1981, has not been given to the plaintiffs till this date. Even to the court the original invoices have not been furnished by the defendants and what is furnished is only xerox copies of the invoices annexed as Exhibits 3A to 3H to the affidavit-in-reply. In view of the above suppression of facts, this court cannot proceed on the basis that the defendants have been making use of the trade mark honestly, concurrently and extensively as alleged by the defendants. In view of the above facts, the submissions made on behalf of the defendants cannot be considered. 5. As regards infringement of the trade mark, it is not in dispute that the plaintiffs' trade mark has been duly registered on 2nd August, 1973 in Class 16 in respect of the above products. It is also not in dispute that the application made by the defendants for registration has not been disposed of by the competent authority under the Act. Under Section 12(3) of the Trade and Merchandise Marks Act, 1958, in case of honest concurrent use or of other special circumstances, the Registrar may permit the registration of identical or similar marks. In the present case, it is not in dispute that the script of the two trade marks are identical. It is not in dispute that the lettering and the style of writing the word 'Cartier' is identical. It is also clear that the defendants adopted the word 'Cartier' to carry on business in Bombay as they were aware of the world wide reputation of the plaintiffs' products. There is nothing to indicate honest concurrent use of the said products in India by the defendants. It is also clear that the defendants adopted the word 'Cartier' to carry on business in Bombay as they were aware of the world wide reputation of the plaintiffs' products. There is nothing to indicate honest concurrent use of the said products in India by the defendants. As indicated above, the material facts have been suppressed; that inspection of the invoices has not been given; that the advertisement in the Trade Mark Journal inserted at the instance of the defendants claiming registration after March 1988 also does not indicate the period from which the user has commenced; that even the advertisements in Times of India etc. are of 1987 and in the circumstances honest concurrent use under Section 12(3) of the Act is not a defence available to the defendants. The learned counsel appearing on behalf of the defendants, however, submitted that even if there is no honest concurrent use by the defendants still the case of the defendants will fall in the expression "of other special circumstances" under Section 12(3) of the Act. There is no merit in the said contention. The word 'of' clearly indicates that if there is no honest concurrent use of the trade mark, the defendants cannot place reliance on the expression "other special circumstances" de hors honest concurrent use. It has been held in the case of Bengal Immunity Co. Ltd. v. Denver Chemical Manufacturing Co. and others (Rep. in AIR 1959 Cal p. 636), that where the concurrent use of the trade mark is dishonest, it is not open to the Registrar to permit registration on the basis of "other special circumstances". The defendants have placed reliance on "special circumstances" namely that the plaintiffs have not used a single item in India that the plaintiffs have not been selling its products in India. There is no merit in the said submission. In the case of Apple Computer INC. v. Apple Leasing and Industries Ltd. decided by the Delhi High Court by way of Interim Application No. 7678 of 1989 in Suit No. 2751 of 1989 decided on 10th May 1991, it was held that carrying on business in India is not necessary for a remedy even in passing-off action. The requirement of carrying on trade in a particular jurisdiction has not been accepted as sine que non. The requirement of carrying on trade in a particular jurisdiction has not been accepted as sine que non. It was further submitted that there was no knowledge on the part of the defendants as they were not aware of the plaintiffs' trade mark. There is no merit in the said submission. The style and writing the word 'Cartier' and the very fact that the application for registration was made in 1988 also for registering the trade mark at the behest of the defendants itself indicates that the defendants were aware of the international reputation of the products manufactured and sold by the plaintiffs. 6. There is also no merit in the contention of the defendants that this court cannot proceed on the basis that the defendants will use in the matter of registration with application they have made in March 1988. It was submitted that since the registration proceedings are pending interim relief should not be granted. In that connection reliance was placed on the judgments of the English Court. The decision on which reliance has been placed by the learned counsel for the defendants is the case in J. U. James and Sons, Ld. v. Wafer Razor Co. Ltd. (Rep. in 49 (1939) RPC p. 597) (Chancery Division). In the said case the plaintiffs claimed injunction to restrain the defendants from infringing their registration trade mark in connection with safety razor blades and also injunction to restrain the defendants from passing-off such plades as the plaintiffs' products. One of the contentions, raised by the defendants was that the defendants had also applied for registration before the competent authority of the Trade Marks and pending the said application the High Court should not grant injunction against the defendants. This plea was accepted by the High Court in view of the fact that the defendants were using the trade mark innocently, honestly and they were not aware of the registration of the trade mark by the plaintiffs. In fact, it was found that defendants had applied for registration even earlier but the matter was not decided and the defendants carried an impression that their trade mark was duly registered by the competent authority and accordingly the defendants continued to use their mark. It was in those circumstances that the High Court refused injunction sought by the plaintiffs. In fact, it was found that defendants had applied for registration even earlier but the matter was not decided and the defendants carried an impression that their trade mark was duly registered by the competent authority and accordingly the defendants continued to use their mark. It was in those circumstances that the High Court refused injunction sought by the plaintiffs. In the present case as mentioned earlier, the defendants have not used the mark as honest applicant and there has not been concurrent user as claimed. In the circumstances, the ratio of the above judgment of the High Court in the case of James and Sons Ltd. (supra) does not apply. Moreover, the lettering of the word 'Cartier' indicates that there is direct resemblance which is likely to deceive or cause confusion and in the circumstances also the plaintiffs are entitled to injunction as sought in the motion. It is a settled law, that where the trade marks are identical, and constitute a facsimile representation other circumstances like trade channels, non-user etc. are not relevant. It is made clear that all the, above observations are prima facie in nature. 7. In the circumstances, Notice of Motion is made absolute in terms of prayers (a) and (b) with costs cost in the cause.