Judgment :- A. Subbulakshmy, J. The case of the plaintiff in both the suits is as follows: The plaintiff company was originally named as Premier Instruments Coimbatore Limited, incorporated on 6.3.72. Subsequently it was renamed as Premier Instruments and Controls Limited under certificate of the Registrar of Companies dated 4.1.83. The plaintiff is a leading manufacturer of automotive instruments and accessories. Recently, the plaintiff has diversified into electronics and mechanical tools. The plaintiff's business turnover for the year ending with 31.3.82 was around Rs.40 crores. Immediately after the formation of the plaintiff company, the word of trade mark Pricol was coined for marketing their products. The word Pricol is an invented word and an acronym of the plaintiff's name letters PR from Premier, I from instruments, CO from Coimbatore and L for Limited. The trade mark is written in a specialised manner with a star on either side. The artistic manner in which the word Pricol is written with two stars was visualised and executed by the employees of the plaintiff in the course of their employment in 1975. So, the plaintiff is the proprietor of the copyright in the artistic manner in which the trade mark Pricol is written. The plaintiff since 1987 acquired an exclusive copyright over the pictorial, geometric colour pattern on the outer card board containers of the plaintiff's products. The principal colours used are red, orange, yellow and white. One of the sides displays three concentric circles around the trade mark pricol. This concentric pattern is in the three principal colours yellow, orange and red on a white background. The other three sides again contain a continuous geometric pattern with broad parallel ribbons with two angular edges. This geometric pattern is also in the colour pattern of the concentric circle. The plaintiff is the owner of the copyright in the artistic pattern since 1987. The products of the plaintiff have acquired a special status in the market to such an extent that the customers seek and ask for pricol products. The sales turnover for the Pricol products from 1975 is in lakhs and the turnover has also increased year by year. The trade mark Pricol is registered under the Trade Mark and Merchants Act. The plaintiff is having technical colloboration with Nippon Seiki Co. Ltd., Japan and M/s. Nippondenso Co. Ltd., Japan. The sales turnover for the Pricol products from 1975 is in lakhs and the turnover has also increased year by year. The trade mark Pricol is registered under the Trade Mark and Merchants Act. The plaintiff is having technical colloboration with Nippon Seiki Co. Ltd., Japan and M/s. Nippondenso Co. Ltd., Japan. The plaintiff is supplying automotive instruments and accessories as the original equipment to almost all the vehicle manufacturers in India. So, the customers for the plaintiff recognised its product as Pricol. Till September 1992, the plaintiff was not aware of the existence and activity of the defendant. It was thereafter, found that the defendant was manufacturing and selling brake fluid, multi purpose grease and coolant used in automotive industry and the' plaintiff's trade mark is copied in its entirety by the defendant and they are displaying it on the containers of their products, their advertisements, their correspondence, their trade literature, etc. A suit was filed against them for permanent injunction restraining them from infringing the plaintiff's copyright in February 93 one Alagendran Auto Agencies, Madurai brought to the notice of the plaintiff a letter from the defendant dated 15.2.93 which letter was in response to the enquiries of distributorship made by the said M/s. Alagendra Auto Agencies Private Limited to M/s. Perfect Automotive Components, the defendant. The letter from the defendant shows that they are indulging in infringement of the plaintiff's copyright and also passing of their goods as the plaintiff's goods. Along with the letter, the defendant has also sent the test report of pricol brake fluid, terms and conditions for appointment of distributors proforma for application for distributorship and dealer's price list for Pricol products. That letter also contains the Pricol with star on either side. The defendant also sent alongwith that letter to Alagendra Auto Agencies tins containing grease, brake and clutch fluid and stickers manufactured by the defendant. The defendant's tins also displayed artistic work of geometric and colour pattern of the plaintiff's containers. The plaintiff's products are automobile instruments which can be marked only in card board boxes, whereas the defendant's product being fluids and greases have to be packed in metal containers. Although the products of the defendant are not similar the products of the plaintiff belongs to the same commercial class. The plaintiff's products are automobile instruments which can be marked only in card board boxes, whereas the defendant's product being fluids and greases have to be packed in metal containers. Although the products of the defendant are not similar the products of the plaintiff belongs to the same commercial class. The products of both the plaintiff and defendant are used in automobile industry and trade and they are available in the same shops across the same counters. It will have the effect of causing great confusion as there is close similarity in the respective trade marks. The use of Pricol artistic word and their goods for trade purpose amounts to passing of the goods as the goods' of the plaintiff. Hence, the suit is filed for permanent injunction restraining the defendant, their servants, agents or anybody claiming under them, their distributors from committing infringement of copyright of the plaintiff in the style of pricol with stars found in the documents and for permanent injunction restraining the defendant, and their servants from passing of their goods by using the name Pricol and directing the defendant to render a true and faithful account. 2. The case of the defendant in both the suits is as follows:- The suit is not maintainable as the plaintiff's registered office is not situate within the jurisdiction of this Court. As per Section 62 of the Copyright Act, suit can be filed only in the District Court within whose jurisdiction the person filing the suit resides or carries on business. The residence of the company, under the Companies Act would be where the registered office of the company is situate. The registered office of the plaintiff being situate at Coimbatore which is outside the ordinary original jurisdiction of this Court, the plaintiff would be deemed to reside or carry on business at Coimbatore and only the District Court, Coimbatore has got jurisdiction. The defendant is not selling his products or advertised for sale of his products within the ordinary original jurisdiction of this Court. The plaintiff cannot claim ownership of right unless it can establish that it is the exclusive licencee. The plaintiff has not obtained leave of the Court in clause 14 of the Letters Patent Rights to different cause of action while preparing the suit. The defendant has not made any sale within the jurisdiction of this Court. The plaintiff cannot claim ownership of right unless it can establish that it is the exclusive licencee. The plaintiff has not obtained leave of the Court in clause 14 of the Letters Patent Rights to different cause of action while preparing the suit. The defendant has not made any sale within the jurisdiction of this Court. The defendant is not carrying on business nor having any branch within the jurisdiction of this Court. The product used by the defendant company in marketing fabrication and break oil pricol is distinct and different one. There is no similarity between the alleged copyright in the artistic word pricol as adopted by the plaintiff and the one that is presently being adopted by the defendant company. There is also no ground for passing of. The defendant's products are being purchased by their customers, identified as pricol, with the defendant and there is no deception or conception as alleged by the plaintiff. There could never be any deception or conception in the minds of the buyers. The defendant's goods are lubricant oils and the defendant sells it only to retailers and the nature of the product is wholly different and the plaintiff is also affecting such supplies against the firm orders. The product manufactured by the defendant is wider product than that of the plaintiff's which is confined only to automotive nature. The trade mark of the defendant is a distinct and different one from that of the plaintiff. The manner, style in which the word pricol is written is different from that of the plaintiff. There is no question of likelihood of the defendant's products being passed of as that of the plaintiff's. The suit itself is misconceived and it is liable to be dismissed. 3. On the above pleadings, the following issues were framed for trial in C.S. 534 of 1993:- 1. Is the suit maintainable on the file of this Court? 2. Is the suit not maintainable for the reasons set out in paragraph 2 of the written statement? 3. Is the defendant entitled to use the name 'Pricol' in respect of products manufactured by them? 4. Has the defendant committed any infringement of copyright or passing of as alleged by the plaintiff? 5. Is the plaintiff owner of the copyright in the artistic pattern and whether the plaintiff is entitled to seek civil remedies under the Copyright Act, 1957? 6. 4. Has the defendant committed any infringement of copyright or passing of as alleged by the plaintiff? 5. Is the plaintiff owner of the copyright in the artistic pattern and whether the plaintiff is entitled to seek civil remedies under the Copyright Act, 1957? 6. Has the defendant committed infringement of the plaintiff's copyright? 7. Is the plaintiff entitled to the permanent injunction sought for in paragraph 279(a) and (b) of the plaint? and following issues were framed for trial in C.S.535 of 1993:- 1. Is the plaintiff entitled to invoke the jurisdiction of this Court? 2. Is the suit not maintainable for the reasons set out in paragraph 2 of the written statement? 3. Is the plaintiff owner of the copyright in the artistic pattern? 4. Has the defendant committed any infringement of copyright or passing of as alleged by the plaintiff? 5. Is not the defendant entitled to use the name Pricol in respect of products manufactured by them? 6. Is the plaintiff entitled to the permanent injunction sought for in paragraph 27(a) and (b) of the plaint? 7. Is the defendant liable to render true and faithful account of the profits earned by them? 8. Is the defendant liable to surrender to the plaintiff all the cartons, labels, packets and any other printed matter containing or consisting of the alleged trade mark for destruction? 9. To what reliefs are the parties entitled? 4. Issue No. l in both the suits:- Counsel for the defendant submitted that this Court has no jurisdiction to try the suits and the District Court at Coimbatore alone has got jurisdiction to try these suits. He relies upon Section 105 of the Trade and Merchandise Act, 1958 and Section 62 of the Copyright Act. Section l05 of the Trade and Merchandise Act reads as follows:- "No suit (a) for the infringement of a registered trade mark; or (b) relating to any right in a registered trade mark; or (c) for passing off arising out of the use by the defendant of any trade mark which is identical with or deceptively similar to the plaintiff's trade mark, whether registered or unregistered shall be instituted in any Court inferior to a District Court having jurisdiction to try the suit". Relying upon this section, counsel for the defendant submitted that the plaintiff's registered office is situate at Coimbatore and only the District Court at Coimbatore has got jurisdiction to try these suits. 5. Counsel for the defendant further submitted that the suits relate to infringement of registered trade marks and for passing of the goods by the defendant and as the suits relate to right in respect of registered trade mark of the plaintiff, whose registered office is situate at Coimbatore, only the District Court at Coimbatore has got jurisdiction to try the suits. 6. Counsel for the plaintiff submitted that the plaintiff in having branch office at Madras and the defendant in C.S. 534/93 filed trade mark application on 21.2.93. for securing registration for the expression pricol before the Registrar of Trade Marks claiming user all over India in respect of class 4 goods and they claimed proprietory right by use all over India including the city of Madras and so, the plaintiff in C.S. 534 of 1993 obtained leave to sue the defendant in this Court for the relief and the leave has not been challenged at all till date and so, this Court has got jurisdiction to try these suits. He relies upon the decision 1990 PTC 240 ) wherein this Court has held that the defendants having applied for registration of the mark at the/trade mark registry at Madras that will give jurisdiction to the plaintiff to file the suit at Madras. He relies upon the decision 1990 PTC 240 ) wherein this Court has held that the defendants having applied for registration of the mark at the/trade mark registry at Madras that will give jurisdiction to the plaintiff to file the suit at Madras. In Himachal Pradesh Horticulture Product Marketing and Processing Corporation Limited, Simla v. Mohan Meakin Breweries Limited, Salem, AIR 1981 P&H 117 it has been held that, "In a suit for passing off or injunction on account of infringement of trade mark the cause of action partly or wholly can arise in a given jurisdiction only if it is the defendant who is proved to have directly made sale of goods under the impugned trade mark, within that jurisdiction, not to an individual consumer but to a distributor, wholesaler or retailer and that such a sale is on a commercial scale." In Surendra Kumar Maingi v. M/s. Dodha House, 1988 AIR(ALL) 45 the Allahabad High Court has observed that Section l05 of the Trade and Merchandise Act lays down that a suit for infringement or relief to any right in registered trade mark or for passing off the same shall be instituted in District Court having jurisdiction to try the suit and in view of Section 20 CPC such a suit can be filed where the defendant resides or carries on business or personally works for gain. 7. Counsel for the defendant submitted that the defendant is not selling the goods in Tamil Nadu and there cannot be any apprehension on the side of the plaintiff. The defendant applied for registration of the trade mark claiming user of pricol all over India and they have claimed proprietory right by use all over India including the city of Madras. It is evident from the letters sent by Pricol Lubricants Private Limited, Delhi, Ex. P35 addressed to Alagendra Auto Agencies that the said Alagendra Auto Agencies has sent letter to the defendant on 23.1.93 regarding the distributorship of pricol Lubricant products. Under Ex. P35, the defendant has sent test report of pricol fluid, girling, price list, terms and conditions bio data form for distributor along with samples or brake fluid girling and greases, etc. The defendant has also asked Alagendra Auto Agencies, Madurai to send them bio data form of distributor duly completed and signed. Under Ex. P35, the defendant has sent test report of pricol fluid, girling, price list, terms and conditions bio data form for distributor along with samples or brake fluid girling and greases, etc. The defendant has also asked Alagendra Auto Agencies, Madurai to send them bio data form of distributor duly completed and signed. Along with that letter, the defendant has also given test report of pricol brake fluid and also the terms and conditions for appointment of distributor and the bio data form for distributorship. This shows that the defendant is extending his business to the State of Tamil Nadu, and he made arrangement for appointment of distributor in the state of Tamil Nadu. So, the contention of the defendant that his business is confined to Delhi and as he is not doing business in Madras, this Court has no jurisdiction and the suits are not maintainable is wholly untenable. 8. Section 62 of the Copyright Act, 1957 reads as follows:- "Every suit or other civil proceeding arising under this Chapter in respect of the infringement of Copyright in any work or the infringement of any other right conferred by this Act shall be instituted in the District Court having jurisdiction. (2) For the purpose of sub-section (1), a "District Court having jurisdiction" shall notwithstanding anything contained in the Code of Civil Procedure, 1908 (5 of 1908), or any other law for the time being in force, include a District Court within the local limits of whose jurisdiction, at the time of the institution of the suit or other proceeding, the person instituting the suit or other proceeding or, where there are more than one such persons, any of them actually and voluntarily resides or carries on business or personally works for gain." 9. Counsel for the plaintiff submits that the plaintiff's registered office is situate at Coimbatore and the plaintiff having branch at Madras and so, this Court has got jurisdiction to try the suits. So, his submission is that the plaintiff can institute either in a Court within whose local limits, the principle place of business or its branch office where its business is effectively carried out is situate. 10. So, his submission is that the plaintiff can institute either in a Court within whose local limits, the principle place of business or its branch office where its business is effectively carried out is situate. 10. Counsel for the defendant submitted that the principal place of business of the plaintiff is Coimbatore and so, as per Section 62 of the Copyright Act, the District Court at Coimbatore alone has got jurisdiction to try the suits and these suits cannot be tried by this Court. 11. If the words actually and voluntarily resides and carries on business mentioned in Section 62 of the Copyright Act is properly perceived, it would reveal that when there is limitation regarding residence, there is no such restriction with reference to carrying on business. There is no indication in Section 62 of the Copyright Act that the place of carrying on business must be only the principal place of business. If the Legislature intended to mean the principal place only, it would have suitably qualified the expression "carries on business". The word carries on business or personally works for gain indicates the place of business activities as principal place or branch or branches where the party is stated to carry on business in all such places. In Section 62 of the Copyright Act a deliberate departure is made from Section 20, CPC to enable the plaintiff to sue one who infringed his copyright in the Court within whose local limit he carried on business at the time of the institution suit or other proceedings. The plaintiff has published the work in the year 1975. Under Section 55 of the Copyright Act the owner of the copyright is entitled to seek for their remedies such as injunction, damages, etc. The plaintiff has published the work in 1975 and the design of carton in 1986. So the plaintiff is the owner of the copyright and as owner, he is entitled to seek his remedies. Under Section 55 of the Copyright Act, as the owner of copyright, the plaintiff is entitled to file the suits wherever they are carrying on their business including the branch office and the regional office. So the plaintiff is the owner of the copyright and as owner, he is entitled to seek his remedies. Under Section 55 of the Copyright Act, as the owner of copyright, the plaintiff is entitled to file the suits wherever they are carrying on their business including the branch office and the regional office. In the plaint, the plaintiff has categorically stated that the plaintiff is the owner of the copyright in the artistic pattern and the trade mark pricol is written in the artistic style is used in relation to all the products of the plaintiff, their bill books, trade literature, etc. The plaintiff is the proprietor of the copyright in the artistic manner in which the trade mark pricol is written, printed along with star on either side. This Court has also taken the decision in C.S. 410/81 and application Nos. 3036, 3037 and 3038 of 1981 that by virtue of Section 62(2) of the Copyright Act, the Court in whose jurisdiction the principal office or branch office runs has got jurisdiction to try the suits. So, the plaintiff being the owner of the copyright is entitled to file the suits in Madras where he is carrying on his business in the regional office at Madras. 12. Issue No. 2 in both the suits:- The defendant contends that the suits are not maintainable and they are based on different causes of action. 13. Counsel for the plaintiff submitted that all the three different causes of action can be joined together and the suits can be tried by one Court and the suits are maintainable. 14. The plaintiff filed the suits for infringement of the plaintiff's copyright by defendant and infringement of the plaintiff's trade mark and the passing of by the defendants pertaining to plaintiff's trade mark of pricol. Counsel for the plaintiff submitted that in C.S. 535/93, similar two reliefs were sought for and for the relief of passing of and under Section 62 of the Copyright Act, the plaintiff is entitled to file the suit for copyright before this Court as the same cause comes against the two reliefs. Clause 14 combines the cause of action for the relief of passing of with the cause of action for infringement of copyright and that application was argued and orders were pronounced on 1.2.94. Clause 14 combines the cause of action for the relief of passing of with the cause of action for infringement of copyright and that application was argued and orders were pronounced on 1.2.94. He further submitted that when there is one cause of action, the Court is empowered to combine the causes of action. He relies upon the decision of a Division Bench of this Court in Brooke Bond India Limited, etc. v. Balaji Tea (India) Pvt. Ltd., etc. 1993 (2) LW 291 . It emerges from the above said decision that if the acts in totality goes to infringement of copyright for which action on the original side of this Court is followed, other cause of action at other forum in the same cause should not be dragged to get multiplicity of proceedings and the cause of action falling under the Copyright and Trade and Merchandise Act can be tried in one Court. Applying the principles laid down by this Court in the decision of the Division Bench, cited supra, I find that the both the suits are maintainable. Section l4 of the Letters Patent Act enables the plaintiff to combine several causes of action in one suit. I find that the suits are maintainable. 15. Other issues in both the suits:- The plaintiff claims to be the owner of copyright Pricol in the artistic pattern. The plaintiff states that the trade mark Pricol is written in the artistic style and is used in relation to all the products of the plaintiff and the products of the plaintiff have acquired a special status. 15. Other issues in both the suits:- The plaintiff claims to be the owner of copyright Pricol in the artistic pattern. The plaintiff states that the trade mark Pricol is written in the artistic style and is used in relation to all the products of the plaintiff and the products of the plaintiff have acquired a special status. According to the plaintiff, the defendant by adopting the trade mark and copyright written in an artistic manner on the plaintiff's containers is committing passing of and the defendant has also advertised in Hindustan Times and all over India in the newspapers circulated in Madras and the plaintiff's copyright cannot be infringed and his right has to be protected and so he has come forward with this suit for permanent injunction restraining the defendant, their men and agents from committing infringement of the copyright which the plaintiff has done in an artistic word contained in the style of writing Pricol with stars and for permanent injunction restraining the defendant, their servants and agents from passing of their goods and directing the defendants to render a true and faithful accounts of the profits earned by them through this offending mark pricol and directing the defendants to surrender all the cartons, labels and packets. 16. The plaintiff is manufacturing automotive accessories, speedometer cables automotive components. The plaintiff states that he acquired exclusive copyright of pricol and geometric colour pattern on the outer card board containers containing the colours viz., red, orange, yellow and white. 17. The defendant also uses the same mark pricol for his products. But, the defendant contends that he combined his child's name Princy with the word 'col' and the products of his business are lubricants viz. break oil, grease, etc. and the goods involved in the business of the defendant is entirely a different goods being lubricants and the business of the plaintiff will not be affected by using the same mark pricol. Counsel for the defendant submits that the defendant's products are lubricants whereas the plaintiff's products are solid and as the lubricant is entirely a different one and as the product of the plaintiff is only automobile spare parts, it cannot be stated that both are similar products and the business of the plaintiff will be affected by using the same trade mark. 18. 18. Counsel for the plaintiff submitted that the defendant is also using for his products the same work pricol with the same star and definitely that mark would mislead the public in purchase of goods and it is immaterial whether the products sold by the defendant is solid or liquid. He further submitted that both the products involved in the business of the plaintiff and the defendant relate to automobile parts and the defendant by using the plaintiff's copyright and trade mark, pricol, definitely infringes the right of the plaintiff and the defendant is also trying to pass of his products in the name of the plaintiff's copyright and trade mark. 19. The plaintiff's Secretary has been examined as PW1 and he speaks in his evidence that the plaintiff company's turnover for the last year was Rs. 138 crores and almost all the original equipment manufacturers viz. Telco, Ashok Leyland, Premier Automobiles, TAFE, EICHA, Mahendra & Mahendra, Bajaj Auto, Bajaj tempo, Hero Honda, Kinetic Honda, TVS Suzuki, Hindustan Motors, Mahendra Lizorns are the customers of the plaintiff and their business is spread all over India and also in foreign countries like U.S.A., Germany, France, U.K., Italy, Finland, U.A.E., Australia, Egypt, Singapore, Philipines, etc. The plaintiff company adopted pricol for his business. Ex. P1 is the trade mark Pricol. The evidence of PW1 shows that their trade mark pricol was invented during the course of employment of their staff in the year 1975 and the word Pricol is an invented word and an acronym of the plaintiff's name letters PR from Premier, I from instruments, CO from Coimbatore and L for Limited and the trade mark contains one star on either side as evidenced by Ex. P2. Ex. P3 is the outer card-board used for packing the plaintiff's products. Ex. P5 is the copy of the price list distributed by the defendant. 20. On a perusal of Exs. P1 and P2, it is clearly seen that the defendant used the same trade mark pricol spelling same. There is also star after the word pricol both the marks are identical. The plaintiff's trade mark pricol was registered under Trade Marks Act in the year 1980 as evidenced by Ex. P6. Ex. P7 is the copy of the trade mark certificate. Ex. P8 is application filed by the defendant for registration of his trade mark in respect of his products brake fluid. Ex. The plaintiff's trade mark pricol was registered under Trade Marks Act in the year 1980 as evidenced by Ex. P6. Ex. P7 is the copy of the trade mark certificate. Ex. P8 is application filed by the defendant for registration of his trade mark in respect of his products brake fluid. Ex. P9 is the caution notice publication given by the defendant in respect of the trade mark pricol. Ex. P10 is the advertisement given by the defendant on 15.11.92 calling for appointment of dealers and distributors for his products. Ex. P10 has got the trade mark on either side of the trade mark. A perusal of the documents goes to reveal that the defendant is using the same trade mark as that of the plaintiff. The defendant has submitted application Ex. P8 for registering the trade mark pricol on 21.2.92 claiming user from January 92. The plaintiff has registered his trade mark in the year 1980. There is long user for the trade mark of the plaintiff and the defendant has come forward with application for registering the same trade mark in the year 1992. So, the plaintiff has sent Ex. P11 calling upon the defendant to stop using the name pricol. The plaintiff has also filed six vouchers and invoices for the sale of goods Exs. P14 to P26. He has filed Ex. P27 the ten years turnover particulars as published in the annual report of 1992 by the plaintiff and the auditor's certificate thereto. PW1 states that they have also diversified into electronics, textile control instruments applicable to textile machineries panel system for T.72 battle tanks, PMP vehicle carriers used in defence department and they are using the trade mark pricol for those diversified product range. The plaintiff has also filed advertisement about their products. Ex. P28 is the document showing advertisement of the plaintiff's product viz. UPS and SMPS with Taiwanese collaboration. Ex. P31 series are the advertisement materials and Ex. P32 is the advertisement material used by the plaintiff's dealer in Finland with the name pricol. Ex. P33 is the visiting card used by the plaintiff in the name pricol. So, the documents filed by the plaintiff shows that the plaintiff is the owner of copyright pricol and he is using the trade mark for his products and he is long user. The plaintiff also filed Ex. Ex. P33 is the visiting card used by the plaintiff in the name pricol. So, the documents filed by the plaintiff shows that the plaintiff is the owner of copyright pricol and he is using the trade mark for his products and he is long user. The plaintiff also filed Ex. P35 communication sent by the defendant to M/s. Alagendra Auto Agencies, Madurai. PW1 says that Alagendra Auto Agencies is their dealer and the communication sent by the defendant to the Alagendra Agencies shows that the defendant is using the same trade mark pricol and has sent the communication with the intention of extending his business to the State of Tamil Nadu and he made arrangements for appointment of distributor in the State of Tamil Nadu. The documents filed show that the defendant is using the same trade mark of the plaintiff viz. pricol as evidenced by Ex. P35. PW1 states that Alagendra Auto Agencies, Madurai is their dealer and they sent the copy of the letter written by the defendant, to the plaintiff. The plaintiff has also filed M.O 1 and M.O.2. M.O.2 is almost similar to M.O. 1 in colour and logo. M.Os. 3, 4 and 5 brake oil, clutch fluid and lubricants. The defendant also displayed the same trade mark pricol and the artistic pattern. The star in M.O.s 3 to 5 are also identical to that of the plaintiff. The evidence of PW1 shows that their trade mark was invented in the year 1975 and they are using it and their mark was also registered in 1980. A perusal of the documents and also M.Os. shows the defendant is also using the same mark of the plaintiff for his products. 21. DW1 states that he is not selling his products in Tamil Nadu or Chennai and he is selling them only in Delhi and some parts of U.P. and Bihar and he has changed the designs on the containers of his product since April 1993. DW1 states that there is some difference and his product is also entirely different since it is liquid. 22. Counsel for the defendant submits that since the products are different viz. lubricants, sold by the defendant, it cannot be said that there is any infringement of the plaintiff's trade mark and there cannot be passing of since the goods were not identical. 23. 22. Counsel for the defendant submits that since the products are different viz. lubricants, sold by the defendant, it cannot be said that there is any infringement of the plaintiff's trade mark and there cannot be passing of since the goods were not identical. 23. Counsel for the plaintiff submitted that both the goods relate to automobile requirements and using of same trade mark by the defendant would definitely cause confusion in the minds of public and the public would be thinking that it is only the plaintiff's products and the defendant is trying to pass of their goods in the name of the plaintiff's trade mark. 24. In the decision in Sitamul Chemical Industries v. Cibatul Ltd., 1978 AIR(Gujarat) 216 the Gujarat High Court has held that: "Where no trade marks are used for the products and a manufacturer complains that the likely customer of his goods is apt to be confused by the similarity between the name of his Company and the name of some other Company which has subsequently started production, though the Court has to apply the test whether such hypothetical consumer would be confused in selecting the goods, of the rival companies by the similarities in their names, the Court has ultimately to form its own opinion on the matter. The test to be applied is the test of an average person with imperfect recollection. The Court has to visualize a customer or a tradesman or a citizen who may happen to have dealings with the Company complaining or who may happen to want to purchase the goods manufactured by such Company and decide whether such a customer or tradesman or citizen would get confused. It would not be right to apply the test of a man of extraordinary memory who remembers the spelling of the name of each Company or a person who jots down meticulously and methodically the names of Companies in his diary and brings out his diary and contemplates whether he is dealing with one Company or the other." 25. Counsel for the defendant submitted that the defendant is using the name of his daughter Princy and only her name is being used and there is no infringement of copyright or the plaintiff's mark. Even with regard to the name of his daughter Princy, there is no authenticated proof. Counsel for the defendant submitted that the defendant is using the name of his daughter Princy and only her name is being used and there is no infringement of copyright or the plaintiff's mark. Even with regard to the name of his daughter Princy, there is no authenticated proof. In Bajaj Electricals Ltd. v. Metals & Allied Products, 1988 AIR(Bombay) 167 it has been held that "The trade name of the plaintiff was widely advertised and gained wide reputation for a number of years, the partners of the defendant firm were carrying on their business with the mark consisting of their family name and it was identical and deceptively similar to the trade name of the plaintiff. There was identity of goods, identity of mark and identity of consumer in respect of the goods manufactured by the plaintiff and that of the defendants. The articles of the plaintiff and the defendant were available in the same shop. The defendants were attempting to pass off their goods with the said mark with the intention to secure advantage of the reputation earned by the plaintiff and that the plaintiff was entitled to the interim Injunction sought for. The defendants were using their family name not as a trading style but as a trade mark or trade sign. Such user is not permissible. The fact that damages would be suffered by the plaintiff cannot be ignored and the actual sufferance of damages cannot be established on the date of the institution of the suit." 28. Counsel for the plaintiff submitted that even though different products are involved, if the same name is used for the goods of the defendant, the plaintiff is entitled to injunction because it would cause deception in the mind of ordinary customer. He relies upon the decision reported in, 1978 AIR(Delhi) 250 and 1988 AIR(IPLR) 135. 27. In Bata India Limited v. M/s. Pyare Lal & Co., the Allahabad High Court has held that : "The plaintiff 'Bata' Company filed a suit for temporary injunction against the defendants restraining them, their servants, employees or agents from using the mark "Batafoam", or otherwise associating the name of 'Bata' in any manner or form of advertisement etc. and further restraining them from "passing off" or enabling others to pass off mattresses, sofa cushions and other articles associating them with the name of 'Bata' in any manner or form. and further restraining them from "passing off" or enabling others to pass off mattresses, sofa cushions and other articles associating them with the name of 'Bata' in any manner or form. The name of 'Bata' was registered under the Trade Marks Act, 1940 in respect of canvas, rubber, leather shoes, rubber footwear, rubber soles, rubber heels and leather soles etc. It was well established that the word "Bata" was a fancy name inasmuch as the word was not associated with any Indian names, place, object or term. 'Bata' was the surname of a foreigner of central Europe who started his business in India making shoes and rubber products. The word 'Bata' was associated with his name. The defendants named their product as 'Batafoam' the spelling of 'Bata' being the same as used by the plaintiff Company and that the plaintiffs had cause of action for instituting the proceedings for passing off. The plaintiff had made out a case for issuance of an interm order of injunction in respect of the user of the name "Bata" to any of their products by the defendants. The name 'Bata' was well known in the market and the user of such name was likely to cause not only deception in the mind of ordinary customer but could also cause injury to the plaintiff company. The fact that the plaintiff was not producting foam was not enough to hold that there could be no passing off action in respect of the user of the name 'Bata' to the products marketed by the defendants. The use of the name or mark 'Bata' by the defendants is indicative of their intent." In Caterpillar Inc. v. Jorange (Cases and Materials on Trade Marks 922) it has been hold that, "In Daimlor Benz Aktiegesselscnaft v. Hybo Hindustan, the manufacturers of "Mercedes Benz" car sought for an order of injunction for the infringement of the trade mark i.e., three pointed star in circle/ring and the word 'Benz'. The High Court of Delhi granted injunction against the defendants who manufactured and sold their underwear apparels by using the name 'Benz' although the manufacturers of Mercedes Benz car were not manufacturing and selling garments or underwear apparels. The High Court of Delhi granted injunction against the defendants who manufactured and sold their underwear apparels by using the name 'Benz' although the manufacturers of Mercedes Benz car were not manufacturing and selling garments or underwear apparels. The learned Single Judge in his order has stated thus:" In my view, the trade mark law is not intended to protect a person who deliberately sets out to take the benefit of somebody else's reputation with reference to goods, especially so when the reputation extends world wide. By no stretch of imagination can it be said that use for any length of time of the name 'Benz' should be not objected to. In the instant case, 'Benz' is a name given to a very high priced and extremely well engineered product. In my view, the defendant cannot dilute, that by user of the name 'Benz' with respect to a product like underwears. "The defendant in that case preferred appeal against the order of Single Judge granting injunction. The Division Bench of Delhi High Court granted stay of the operation of the order of the learned Single Judge, against which order the plaintiff preferred appeal to the Supreme Court in S.L.P. (C) No. 745/94. The Honourable Supreme Court set aside the order of the Division Bench of the Delhi High Court and directed disposal of the appeal within three months. In other words, the order of the learned Single Judge granting injunction was upheld by the Supreme Court." In the above cited decision, the Apex Court has upheld the order of the Single Judge who granted injunction. The plaintiff in the above decision was manufacturer of Mercedes Benz cars, but, injunction was granted restraining the defendant from using the trade mark Benz for their garments. The Apex Court has taken the view in the above decision that even though the goods involved are different, injunction can be granted if the same trade mark is used. In Kamal Trading Co. and Others v. Gillette U.K. Limited, 1988 IPLR 135 even though the plaintiff is a manufacturer of blades and the defendant is a manufacturer of tooth brushes injunction was granted. 28. In Kamal Trading Co. and Others v. Gillette U.K. Limited, 1988 IPLR 135 even though the plaintiff is a manufacturer of blades and the defendant is a manufacturer of tooth brushes injunction was granted. 28. It is very clear from the catena of decisions cited supra that even though products involved are different, if the same trade mark is used, it will lead to confusion in the minds of public and the customer will be deceived and the defendant is also attempting to pass of his goods by using the same trade mark of the plaintiff. A perusal of the documents goes to establish that the defendant is using the same trade mark of the plaintiff and he has infringed the copyright of the plaintiff and also the trade mark and the defendant is attempting to pass of his goods in the same trade mark to which the plaintiff is the long user. 29. Counsel for the defendant submitted that even under classification of goods in schedule 4 of the Trade and Merchandise Act, the product of the plaintiff and the product of the defendant fall under different clauses and the plaintiff's goods fall under Clause 9 of Schedule 4 whereas the defendant's products fall under Clause 4 of Schedule 4 and since the goods fall under different Clauses, the suits for passing of are not maintainable. 30. Counsel for the plaintiff submitted that in a suit for passing of, classification of goods is immaterial and the classification of goods is for registration of exclusive right and the registered trade mark has got exclusive right for which it is registered. 31. Applying the principles laid down in the above decisions, wherein it has been held that in respect of unrelated goods, relief of injunction was granted, even though the products of the plaintiff and defendant fall under different classes in Schedule 4 of the Trade and Merchandise Rules I hold that it will not help the defendant with regard to the relief asked for by the plaintiff. Applying the principles laid down in the decisions cited supra, I am of the view that even though the plaintiff's goods and defendant's goods are different, since same trade mark pricol of the plaintiff is being used by the defendant, it clearly infringes the plaintiff's copyright and also amounts to passing of the goods of the defendant as that of the plaintiff. 32. 32. A Division Bench of this Court in OSA 245 and 246 of 1994 passed order allowing the appeal and permitting the appellant/defendant to use the design appended to it till the disposal of the suit but, however, subject to the decision of the learned Single Judge which relates to passing off on the footing that the use of the word pricol itself is objectionable. Since the counsel for respondent did not object for using of the mark appended to each of the affidavits as they had not infringed the copyright of the plaintiff and the plaintiff had no objection for the defendant to use that mark till the disposal of the suit subject to the decision of the learned single Judge and as the defendant was carrying on his business with the design appended to the affidavit as per the order of this Court the question of rendition of account will not arise and the plaintiff is not entitled to rendition of account. 33. Hence, I hold that the plaintiff is entitled to injunction with regard to infringement of copyright and trade Marks as prayed for by the petitioner. 5. It is the claim of the petitioner that the petitioner's trade mark "Wim-to" has been in extensive use in India, in particular, in and around Calcutta. It is also claimed that the said trade mark commands a considerable sale and has acquired distinctiveness as to the goods of the petitioner due to extensive user since more than last 15 years. 6. The petitioner applied for the registration of its trade mark "Wim-to" with the appropriate authority, being the second respondent herein. The respondent No. 1 opposed the petitioner's said application on the ground that the respondent No. 1 is the owner of the registered trade mark "Vinto" and the petitioner's trade mark "Wim-to" was likely to be deceptively similar to the said registered trade mark "Vinto". 7. It is the contention of the petitioner in the said proceedings for registration of the petitioner's trade mark "Wim-to" that the said mark "Wimto" has a long and extensive user and the respondent's said mark "Vinto" has never been used in India and certainly not for more than 5 years and one month prior to the date of the petitioner's application for registration. It is also contended that the respondent No. 1 had never any intention to use the said mark "Vinto". It is also contended that the respondent No. 1 had never any intention to use the said mark "Vinto". It is also the contention of the petitioner that by the said order dated 30th November, 1978 the trade mark of the respondent No. 1 "Vinto" had been cancelled and was directed to be removed from the Register of the Trade Marks. 8. Now the petitioner is making this instant application for cancellation of the said trade mark "Vinto". This application has also been made with this object that only there has been an order for removal of the mark "Vinto" from the Register of Trade Marks and consequently the petitioner's application now pending before the Registr . The suit is decreed except for the relief of rendition of account. With regard to the claim of the plaintiff for rendition of account, the suit is dismissed. No costs.