Judgment :- M. Karpagavinayagam, J. 1. Common order is being passed in all these applications pending disposal of four suits filed by the respective parties, as the issue raised in these applications is common. 2. M/s. Crescent Auto Repairs and Services Pvt. Ltd., Chennai, has filed a suit in C.S. No. 486 of 1999 against Mr. Krishnan, the Proprietor of M/s. Classic Automobile Repairs, Teynampet, Chennai for declaration to the effect that the plaintiff is the prior user of the trade mark "CARS" and the owner of the copyright in the artistic work of "CARS". 3. The very same plaintiff filed another suit in C.S. No. 487 of 1999 against M/s. Chennai Cars Pvt. Ltd., Chamiers Road, Teynampet, Chennai seeking for the same declaration to the effect that he is the prior user and owner of the copyright of the trade mark "CARS". 4. Pending disposal of C.S. No. 486 of 1999, he filed applications in O.A. No. 412 of 1999 seeking for interim injunction from committing passing off and O.A. No. 413 of 1999 for interim injunction from infringement of the copyright in the artistic work of "CARS" against the respondent Mr. Krishnan, the Proprietor of M/s. Classic Automobile Repairs, Teynampet, Chennai. 5. Pending disposal of the suit in C.S. No. 487 of 1999, the plaintiff, the applicant herein filed applications in O.A. No. 414 of 1999 seeking for interim injunction from infringement of the copyright and O.A. No. 415 of 1999 seeking for interim injunction from committing passing off their goods with offending mark against the Chennai Cars Pvt. Ltd., Teynampet, Chennai, the defendant, the respondent herein. 6. The above suits and applications have been filed on 12.7.1999. 7. Mr. Krishnan, the Proprietor of Classic Automobile Repairs and Service, the defendant in C.S. No. 486 of 1999 along with his son K. Ranganathan, one of the Proprietors of the Chennai Cars Pvt. Ltd., the defendant in C.S. No. 487 of 1999 filed a suit in C.S. No. 696 of 1999 against the Cars India Pvt. Ltd., 9, Cenotaph Road, Chennai, seeking for permanent injunction from committing infringement of the copyright "CARS" and from passing off and other allied reliefs. 8. 8. The above named plaintiffs filed another suit in C.S. No. 698 of 1999 against M/s. Crescent Auto Repairs and Services, Cenotaph Road, Chennai, the plaintiff in C.S. No. 486 and 487 of 1999, seeking for the same relief of injunction. 9. Pending disposal of C.S. No. 696 of 1999, they filed applications in O.A. No. 563 of 1999 seeking for interim injunction restraining the respondent/defendant from committing any infringement of the copyright and O.A. No. 564 of 1999 for interim injunction from passing off their goods by using the expression "CARS". 10. Pending disposal of C.S. No. 698, they filed applications in O.A. No. 561 of 1999 seeking for interim injunction restraining the respondent/defendant from infringement of the copyright and O.A. No. 562 of 1999 for interim injunction from passing off their goods by using the expression "CARS". 11. These suits and applications have been filed before this Court on 7.9.1999. 12. This Court while admitting the suits and the applications thought it fit to order notice to the parties. 13. The respective parties on receipt of the notice appeared before this Court through their counsel and filed a common counter-affidavit seeking for the dismissal of the applications opposing the claim of the rival parties. 14. Since both the parties claim the right of using the trade mark "CARS" claiming themselves as prior users and the subject-matter and issued in all these applications are the same, this Court heard the counsel for the parties by posting all these matters together. 15. The counsel for the respective parties while arguing at length would stress the point that the trade mark "CARS" with artistic work has been used by them for a long number of years and their applications for registration of Trade Mark have already been filed and the same are pending. 16. According to Mr. Ragupathi, the learned counsel appearing for the plaintiff/applicant in O.A. Nos. 412, 413, 414 and 415 of 1999 in C.S. Nos. 16. According to Mr. Ragupathi, the learned counsel appearing for the plaintiff/applicant in O.A. Nos. 412, 413, 414 and 415 of 1999 in C.S. Nos. 486 and 487 of 1999, would contend that the plaintiff has already started their concern in 1995 and they have been using the trade mark "CARS" with artistic work coined by them from November 1995 and that the contention urged by the defendant in those suits that they have started their concern and have been using the trade mark in question from 1993 onwards is false and the documents to substantive the above claim were all fabricated. 17. On the other hand, Mr. U.N. Rao, the learned senior counsel appearing for the defendants would vehemently contend that the defendants have started their concern in 1985 itself and from then onwards, they use the word"CAR" and subsequently in 1993, "S" was added indicating the car service with 'CAR' and made artistic work as "CARS" and as such, they only coined and adopted the mark "CARS" and they have been using for a long number of years as prior users and they have also produced documents to establish their claim and therefore, the balance of convenience is only in their favour by which they would be entitled to interim injunction as prayed for in the applications in their respective suits, namely, C.S. Nos. 696 and 698 of 1999. 18. In the light of the above contentions, this Court is constrained to consider the issue as to who would be entitled for the interim reliefs sought for in the applications filed by the parties. 19. Let us first have a look at the respective case of the rival parties. 20. As indicated above, the plaintiff M/s. Crescent Auto Repairs and Services Pvt. Ltd. in C.S. Nos. 486 and 487 of 1999 is the defendant in C.S. Nos. 696 and 698 of 1999. The defendant M. Krishnan, the Proprietor of M/s. Classic Automobile Repairs, Teynampet, Chennai, in C.S. No. 486 of 1999 is the first plaintiff in C.S. Nos. 696 and 698 of 1999. M/s. Chennai Cars Pvt. Ltd., the defendant in C.S. No. 487 of 1999 is one of the partners of the Chennai Cars Pvt. Ltd., who is the second plaintiff in C.S. Nos. 696 and 698 of 1999. 21. The case projected by the plaintiff in C.S. Nos. 696 and 698 of 1999. M/s. Chennai Cars Pvt. Ltd., the defendant in C.S. No. 487 of 1999 is one of the partners of the Chennai Cars Pvt. Ltd., who is the second plaintiff in C.S. Nos. 696 and 698 of 1999. 21. The case projected by the plaintiff in C.S. Nos. 486 and 487 of 1999 is as follows:- "(a) M/s. Crescent Auto Repairs and Services Pvt. Ltd., Chennai, which is dealing in Automobile and its spare parts and who has been appointed as authorised dealer for Maruti Car in Chennai, has been promoted on 24.11.1995. The promoters of the plaintiff coined one trade name 'CARS' which are the first initials taken from the four words of their company's corporate name. The adoption of the trade name 'CARS' in different and distinctive lettering style by the plaintiff is honest and bona fide one. On 20.12.1995, the plaintiff filed one Trade Mark application in Class 12' before the Registrar of Trade Marks in relation to the goods 'Automobile and its Spare parts'. The plaintiff being the 'prior user' of the trade name 'CARS' with a distinctive lettering style has acquired a right of property in the said mark 'CARS' because of the goodwill earned by such mark. The plaintiff also claims copyright in the artistic work of the said distinctive lettering style 'CARS' under the Copyright Act, 1957. The plaintiff has also published their artistic logo 'CARS' with a distinctive lettering style in various English dailies. It has also made several advertisements for the said logo in various newspapers in Tamilnadu from January 1996 and has incurred several lakhs of rupees as advertisement expenses. Because of the wide advertisements and publicity, the plaintiff Company improved their sales turnover year by year. (b) While so, knowing the popularity of the plaintiff's trade mark 'CARS' and its distinctive lettering style, the defendants have indulged in selling and doing service in automobiles deceptively similar to the lettering style of the plaintiff's trade name 'CARS' and passing it off as genuine products of the plaintiff. The plaintiff Company was incorporated on 24.11.1995, but the defendant Company was incorporated only on 17.9.1997 under the name and style of Chennai Cars Pvt. Ltd. Thus, the defendant has adopted deceptively similar name and logo 'CARS' subsequent to the adoption of the plaintiff. The plaintiff Company was incorporated on 24.11.1995, but the defendant Company was incorporated only on 17.9.1997 under the name and style of Chennai Cars Pvt. Ltd. Thus, the defendant has adopted deceptively similar name and logo 'CARS' subsequent to the adoption of the plaintiff. On coming to know that the defendant's deceptive trade name 'CARS' has been printed in the Chennai Telephone Directory published in the year 1997, the plaintiff took steps before the authority to rectify such mischievous advertisement of deceptive logo. Instead of withdrawing the deceptive trade name, the defendant as a subsequent user issued one threatening letter dated 27.7.1998 to the plaintiff to desist from using the logo 'CARS' coined and adopted by the plaintiff. The plaintiff sent a reply on 21.8.1998 asking them not to use the trade name 'CARS'. But, there was no response. Hence, the present suits for declaration and permanent injunction." 22. The case of the plaintiffs in C.S. Nos. 696 and 698 of 1999 is as follows:- "Krishnan the first plaintiff representing the Company Classic Automobile Repairs and Service started the business in the name and style of Classic Automobile Repairs in the year 1985. The second plaintiff is the son of the first plaintiff. The plaintiffs jointly created an artistic work to script the work CAR in a unique artistic style which became their trade name and trade mark. The three letters of the expression CAR represent the three words Classic Automobile Repairs. In 1993, to the expression 'Classic Automobile Repairs', 'and services' was added. Thus, the word CAR came to be expanded into CARS. Thus, the plaintiffs 1 and 2 are the first owners of the artistic work CAR since 1985 and CARS since 1993. In 1996, the first plaintiff started a business in the name of CARS for his son, the second plaintiff for automobile repairs at Chennai. On 17.9.1997 the plaintiffs 1 and 2 along with other members of the family incorporated Chennai Cars Private Limited to carry on business in automobile service and sale of spare parts. As such, they are the joint proprietors of the copyright since 1985 with respect to CAR and since 1993 with respect to CARS. The defendant M/s. Crescent Auto Repairs and Services Private Limited are dealers of Maruti cars. As such, they are the joint proprietors of the copyright since 1985 with respect to CAR and since 1993 with respect to CARS. The defendant M/s. Crescent Auto Repairs and Services Private Limited are dealers of Maruti cars. Since the middle of 1998 they have been pressuring the plaintiffs to desist from using plaintiffs' artistic work CARS and they approached the Telephone Department not to print the logo. After exchange of notices between the parties, the defendant instead of stopping the use of logo of the plaintiffs, filed suits in C.S. Nos. 486 and 487 of 1999 stating that they are the creators of the copyright in the artistic scripting of the expression CARS and that they are the prior adopters and users of the same for automobiles and spare parts. Long before they came to be incorporated in December 1995, for over a period of 10 years, the plaintiffs' business has bean known to the entire business community with the trade mark/trade name, emblem CARS scripted in a uniquely arresting fashion. Since they are the creators of the artistic design and they have been using it continuously uninterruptedly to the knowledge of the whole world from the years 1985 and 1993, the defendant cannot use the expression 'CARS' in the same artistic pattern as it amounts to infringement of the plaintiffs' copyright. Hence, the suits for permanent injunction from infringement and passing off and other allied reliefs." 23. In support of the various contentions referred to above, the parties have filed different typed sets containing the documents. But, before dealing with the documents, in order to answer the point as to who is entitled to interim relief, it shall become necessary to refer to the preliminary question posed by the learned counsel appearing for the defendants in C.S. Nos. 486 and 487 of 1999. 24. The counsel's main contention is that the suits filed by the plaintiff in C.S. Nos. 486 and 487 of 1999 are not maintainable, since in a suit filed under the Copyrights Act and Trade and Merchandise Marks Act, the plaintiff cannot ask for declaration that the plaintiff is a prior user of the trade mark and he is the owner of the copyright in the artistic work of 'CARS'. 25. 486 and 487 of 1999 are not maintainable, since in a suit filed under the Copyrights Act and Trade and Merchandise Marks Act, the plaintiff cannot ask for declaration that the plaintiff is a prior user of the trade mark and he is the owner of the copyright in the artistic work of 'CARS'. 25. On going through the plaint, it is clear that the suit has been filed under Sections 105 and 106 of the Trade and Merchandise Marks Act, 1958 and Sections 55 and 62 of the Copyright Act, 1957. The reading of the relevant provisions would not show that the plaintiff could seek for declaration that he is a prior user of the trade mark and owner of the copyright. 26. As pointed out by the learned senior counsel, at the most, the plaintiff could ask for permanent injunction against the defendants in respect of infringement and passing off on the basis of the materials which may establish that he is a prior user of the trade mark. However, I do not propose to reject the plaint even at the threshold on this ground, since I am called upon in these applications in O.A. Nos. 412 to 415 in C.S. Nos. 486 and 487 of 1999 and O.A. Nos. 561 to 564 of 1999 in C.S. Nos. 696 and 698 of 1999 to decide the question as to who would be entitled for the interim injunction sought for in the applications. 27. Though both the parties have filed applications for registration of trade mark before the Registrar of Trade Marks, the same has not been registered yet, as it is still pending consideration. The plaintiff in C.S. Nos. 486 and 487 of 1999 has filed the application in Class No. 12 in relation to goods automobile and its spare parts on 25.12.1995. Th plaintiffs in C.S. Nos. 696 and 698 of 1999 also sent petition requesting certificate from the Registrar of Trade Marks that no trade mark identical with or deceptively similar to the artistic work of 'CARS' has been registered or applied for registration. The certificate was issued on 3.12.1996. Thus, it is clear that there is no registration of the trade mark in question or there is no registration of the copyright in the artistic work. 28. The certificate was issued on 3.12.1996. Thus, it is clear that there is no registration of the trade mark in question or there is no registration of the copyright in the artistic work. 28. Under those circumstances, only on the ground of prior user the parties would be entitled to get an order of temporary injunction. Therefore, it has to be found out as to who is the prior user of the trade mark 'CARS' with artistic work. 29. The law is pretty well settled that in an action for passing off, in order to succeed in getting an interim injunction, the plaintiff has to establish user of the mark prior in point of time than the impugned user by the defendants. The registration of the trade mark or similar mark prior in point of time to user by the plaintiff is irrelevant in an action for passing off and the mere presence of the mark in the register maintained by the trade mark registry does not prove its user by the persons in whose names the mark is registered and is irrelevant for the purpose of deciding the application for interim injunction unless evidence has been let in to establish the user of the registered trade mark. 30. A trader acquires a right of property in a distinctive mark merely by using it upon or in connection with his goods irrespective of the length of such user and the extent of his trade. The trader who adopts such a mark is entitled to protection directly. The registration under the statute does not confer any new right to the mark claimed or any greater right than what already existed at common law and at equity without registration. It does, however, facilitate a remedy which may be enforced and obtained throughout the State and it established the record of facts' affecting the right to the mark. The registration itself does not create a trade mark. The trade mark exists independently of the registration which merely affords further protection under the statute. 31. The above principles would show that even the registration would not suffice in the absence of any material with preference to the user of the trade mark for a longer time. 32. In the instant case, admittedly, there is no registration by either of the parties. But, the plaintiff in C.S. Nos. 31. The above principles would show that even the registration would not suffice in the absence of any material with preference to the user of the trade mark for a longer time. 32. In the instant case, admittedly, there is no registration by either of the parties. But, the plaintiff in C.S. Nos. 486 and 487 of 1999 would mention in the plaint that they have applied for registration of the trade mark 'CARS' with the artistic work in the year 1995. On the other hand, the plaintiffs in C.S. Nos. 696 and 698 of 1999 applied for the certificate from the Registrar of Trade Marks that such a trade mark with artistic work was never registered earlier and the certificate was issued on 3.12.1996. Therefore, mere filing an application earlier in point of time would not be of any use to decide the issue, more particularly when the law would declare that the material for user is more important rather than mere registration. 33. It is the settled principle of law relating to trade mark that there can be only one mark, one source and one proprietor. It cannot have two origins. Therefore, the plaintiff cannot proclaim himself as a rival of the defendant, as it cannot be used in rivalry and in competition with each other. 34. In a suit for injunction in a passing off action, the relief can only be granted on the ground that the defendant has done something which is calculated to deceive. He must also show that he has used the mark claimed by him on his goods and that the mark has become associated in the minds of the public with his goods. There must be a user of the mark because without user, no reputation can be acquired. Thus, a reputation has not be established. 35. It is the case of the plaintiff in C.S. Nos. 486 and 487 of 1999 is that they have been using the trade mark from December 1995. On the other hand, it is the specific stand taken by the plaintiffs in C.S. Nos. 696 and 698 of 1999 is that the plaintiffs have been using the trade mark 'CAR' with artistic work from 1985, the abbreviation of the Classic Automobile Repairs and in 1993 when the words 'and services' were added, the trade mark 'CAR' came to be expanded into 'CARS' with the artistic pattern. 696 and 698 of 1999 is that the plaintiffs have been using the trade mark 'CAR' with artistic work from 1985, the abbreviation of the Classic Automobile Repairs and in 1993 when the words 'and services' were added, the trade mark 'CAR' came to be expanded into 'CARS' with the artistic pattern. 36. There is no dispute in regard to the fact that the plaintiff in C.S. Nos. 486 and 487 of 1999 has not used the trade mark earlier to November 1995. The documents filed along with the plaint, namely, 1 to 10 covering the dates from 25.12.1995 to 5.2.1997 and other documents filed in the typed set as document Nos. 18 to 21 covering the dates from 24.11.1997 to 21.8.1998 would all show that the trade mark 'CARS' has been used only from 25.12.1995. But, a perusal of the documents filed in a plaint in C.S. Nos. 696 and 698 of 1999 would show that the trade mark 'CAR' was used from 1986 and the trade mark 'CARS' with artistic pattern has been used by the plaintiffs in those suits from 1993 onwards. As a matter of fact, the plaintiffs in C.S. Nos. 696 and 698 of 1999 have issued cease and desist notice to the plaintiffs in C.S. Nos. 496 and 497 of 1999 on 27.7.1998 itself. 37. It is contended by the learned counsel appearing for the plaintiffs in C.S. Nos. 486 and 487 of 1999 that despite the advertisement given in the years 1995 by the plaintiff, the plaintiffs in the other suits did not take immediate action and they sent a cease and desist notice only on 27.7.1998 with considerable delay. It is also submitted by the said counsel that the plaintiff only filed suits C.S. Nos. 486 and 487 of 1999 at the earlier point of time, that is on 12.7.1999 itself, whereas the plaintiffs in C.S. Nos. 696 and 698 of 1999 have filed suits only on 7.9.1999. 38. These contentions, in my view, would not deserve any merit, inasmuch as the question in these applications is not as to how is the prior suiter but the question is as to how is the prior user? 39. 696 and 698 of 1999 have filed suits only on 7.9.1999. 38. These contentions, in my view, would not deserve any merit, inasmuch as the question in these applications is not as to how is the prior suiter but the question is as to how is the prior user? 39. As mentioned above, the well laid down principles reported in 1978 AIR(Delhi) 250 (Century Traders v. Roshan Lal Duggar and Co.), 1978 AIR(Delhi) 270 (Sham Lal v. Interads Advertising (P) Ltd.), Trade Mark Cases Page 29 SC (Power Control Appliances and Others v. Sumeet Machines Pvt. Ltd.) and 2000 PTC 69 (Sham Kumar Kohli v. Golden View Electrical Industries (P) Ltd.), is that in the absence of registration and the user of the trade mark in pursuance of the registration, the Court has to find out who is the prior user. 40. Though it is the contention of the plaintiff in C.S. Nos. 486 and 487 of 1999 that the documents filed by the plaintiffs in C.S. Nos. 696 and 698 of 1999 were fabricated, there is nothing to indicate that such contention is true. The document Nos. 1 and 3 to 7 given in the typed set, various letter heads, covering the pages from 1 to 56 would show that the 'Classic Automobile Repairs' used the trade mark 'CAR' with artistic pattern. The document No. 8 dated 01.10.1993 and 20.12.1993, the document No. 9 dated 19.02.1994, 22.06.1994 and 29.08.1994, the document No. 10 dated 18.05.1995 and the document No. 11 dated 08.05.1996 would also clearly show that the trade mark 'CARS' was used with distinctive letter style. The document No. 12 dated 03.12.1996 is a certificate issued by the Registrar of Trade Marks on the application filed by the plaintiffs in C.S. Nos. 69 to imitate the Plaintiffs' goods and the adoption of the red numeral 7' and the clock at 7 in the 7-Up blades with the identical colour get-up cannot be allowed merely because the word "Up" has been put instead of the 'O'. We have for the 7-Up blades the red numeral 7' and the clock at 7. In other words, 7' and the clock and the word 'Up' only carry forward the identical idea, viz., to get up at 7 in the morning and shave with the blade. The other blade, viz. We have for the 7-Up blades the red numeral 7' and the clock at 7. In other words, 7' and the clock and the word 'Up' only carry forward the identical idea, viz., to get up at 7 in the morning and shave with the blade. The other blade, viz. "7 Baje", is still more a blatant imitation both of the 6 and 698 of 1999 stating that there is no registration for the trade mark 'CARS' with artistic pattern. Therefore, upto the period ending 03.12.1996, there are documents available to show that the trade mark 'CARS' with artistic pattern mentioned in the plaint has been used and made known to the public by the plaintiffs in C.S. Nos. 696 and 698 of 1999 uninterruptedly. Only on coming to know that the plaintiff in C.S. Nos. 486 and 487 of 1999 has begun to use the trade mark 'CARS' and interrupted in the attempt of the plaintiffs in C.S. Nos. 696 and 698 of 1999 to publish the phone numbers in the Telephone Directory, they immediately issued cease and desist notice on 27.7.1998. 41. Under those, circumstances, prima facie I feel that there are documents which have been filed along with the plaint to show that the plaintiffs in C.S. Nos. 696 and 698 of 1999 have been using the trade mark 'CARS' with artistic pattern and they have established that they are the prior user and balance of convenience also is in their favour. On the other hand, the plaintiff in the other suits has failed to establish that they are the prior user. Therefore, I am of the view that the plaintiffs in C.S. Nos. 696 and 698 of 1999, namely, the applicants is in O.A. Nos. 561 to 564 of 1999 would be entitled to the grant of interim injunction as prayed for. Consequently, O.A. Nos. 561 to 564 of 1999 are allowed and A. Nos. 412 to 415 of 1999 in C.S. Nos. 486 and 487 of 1999 are dismissed.