Judgment :- A. Ramamurthi, J. 1. Original Applications No. 196 to 198 of 2000 have been filed by the applicant to grant interim injunction restraining the respondent and their men from in any manner infringing the applicant's registered trade mark KALYANI COVERING by use of trade mark KALYANA COVERING or any mark similar to applicant's registered trade mark in respect of gold covering ornaments and jewellery and also to restrain them from passing off the respondent's gold covering ornaments and jewellery as and for the applicant's gold covering ornaments and also to restrain them from in any manner using KALYANA COVERING logo which is a substantial reproduction of and amounts to infringement of applicant's registered copyright in the artistic work KALYANI COVERING logo or by use of any logo which is a reproduction of the applicant's logo and thereby amounting to infringement. Application No. 1057 of 2000 has been filed by the applicant to grant leave to combine the cause of action in respect of infringement of trade mark and copyright as well as passing off. 2. The case in brief for disposal of all these applications is as follows: The applicant is a sole proprietor of Kalyani Covering having his place of business at No. 2, R.K. Mutt Road, Mylapore and principal place of business at Trichy. The applicant is carrying on a well established business in sale and distribution of gold plated covering jewellery since 1960 under the trade name Kalyani Covering. They are distributed with a wide sales network throughout India. It is also advertised through various media including inter alia, television, radio, newspaper and magazines. The applicant is the proprietor of the trade mark Kalyani Covering registered under No. 485271 dated 4.2.1998 in class 14 in respect of "Gold Covering Ornaments". The registration has been renewed upto 4.2.2002. The applicant is also the proprietor of the artistic work Kalyani Covering in a device with distinctive style of writing. It is also registered under the Copyright Act, 1957. 3. By virtue of long, continuous and extensive use, this trade mark has become distinctive of and is exclusively identified with the gold covering ornament and jewellery sold and distributed by the applicant. The applicant also entered into a franchise agreement on 4.10.1996 with the respondent for sale and distribution of the gold covering ornaments and jewellery bearing the trade mark Kalyani Covering. The applicant also entered into a franchise agreement on 4.10.1996 with the respondent for sale and distribution of the gold covering ornaments and jewellery bearing the trade mark Kalyani Covering. The respondent was the authorised franchisee of the applicant for the period from October 1996 to October, 1999. This agreement was terminated on 1.11.1999. It was also notified by the public notice in the Tamil Daily newspaper 'Dina Thanthi' dated 19.11.1999. The applicant also obtained an undertaking from the respondent that he would not sell and distribute gold covering ornaments and jewellery bearing the trade mark of the applicant. 4. The applicant came to know in January, 2000 that the respondent started selling gold covering ornaments and jewellery bearing the trade mark Kalyana Covering. He adopted a logo which is an imitation of applicant's artistic work logo registered under the Copyright Act. The respondent is distributing and selling gold covering ornaments in paper pouches bearing applicant's trade mark and registered artistic work. Both of them are involved in identical field of business. Their product would be sold in the same shop, over the same counter and to the same class of purchasers. The respondent has made a slavish imitation of the applicant's logo having colour scheme of maroon and white. No ordinary person can distinguish the respondent's logo from the applicant's logo. The logo of the respondent is a substantial reproduction of the applicant's registered copyright logo. The respondent had also reproduced the script used by the applicant as well as the logo and device. The respondent is selling substandard spurious inferior quality gold covering ornaments. The sale of the applicant has been adversely affected. The applicant is entitled to delivery up and destruction of all containers, boxes, cartons, packing cards, labels, pouches, dyes, etc. The applicant estimated the damages at Rs. one lakh. The applicant has got a prima facie case and the balance of convenience is also in their favour. Hence, these applications. 5. The respondent filed a common counter affidavit and denied the various averments. He admitted that he was the authorised franchisee of the applicant's product for the period October'96 to October'99. The agreement was terminated on the expiry of three years. He is selling covering ornaments in different name after the termination of the agreement. He is doing business in the name of Kalyana Covering which is entirely different from the applicant's trade mark. The agreement was terminated on the expiry of three years. He is selling covering ornaments in different name after the termination of the agreement. He is doing business in the name of Kalyana Covering which is entirely different from the applicant's trade mark. He has not adopted the same logo of the plaintiff. He never used the applicants pouches after the termination of the franchise agreement. The colour and other get up are distinct and he never infringed the applicant's trade mark or copyright. He had invested huge money by borrowing to put up a new showroom. He cannot close his shop on the termination of the agreement. He has to carry on his business to pay back the debt. He is not selling cheap quality ornaments as stated by the applicant. The applicant originally supplied standard ornaments and after some time supplied substandard ornaments. The applicant has no prima facie case and the balance of convenience is also not in their favour. The applicant is not entitled to claim any relief. On a reading of the word 'Kalyani', it is very clear that it is phonetically, visually and structurally different. In fact, the applicant himself had given a paper publication to the effect that the covering ornaments sold in the other shops are not that of Kalyani Covering jewels. He had displayed that he is not selling Kalyani covering ornaments but selling only Kalyana Covering jewellery. 6. Heard the learned counsel of both sides. 7. The points that arise for consideration are (1) whether the applicant has got prima facie case and the balance of convenience is in their favour? (2) To what relief? 8. Points: It is admitted that the applicant is the sole proprietor of Kalyani Covering and carrying on business in gold plated covering jewellery and ornaments under the trade mark Kalyani Covering. The trade mark is also registered on 4.2.1998 in class 14 in respect of 'Gold Covering Ornaments' and registration has been renewed and is in force upto 4.2.2002. The applicant is also the proprietor of the artistic work Kalyani Covering in a device with distinctive style of writing and the artistic work is also admittedly registered under the Copyright Act, 1957. The applicant is also the proprietor of the artistic work Kalyani Covering in a device with distinctive style of writing and the artistic work is also admittedly registered under the Copyright Act, 1957. Learned counsel for the applicant stated that by virtue of long, continuous and extensive use of the trade mark, the product of the applicant has become distinctive and is exclusively identified with the gold covering ornaments and jewellery sold and distributed by them. In fact, the respondent was the authorised franchisee of the applicant during the period from October'96 to October'99 and selling the product of the applicant and later, the agreement was terminated by a public notice. But, in January, 2000 the applicant came to know that the respondent started selling gold covering ornaments and jewellery bearing the trade mark Kalyana Covering and he also adopted the logo which is an imitation of the applicant's artistic work and he is also passing off the goods as that of the applicant in the paper pouches bearing the applicant's trade mark. No ordinary person can distinguish the respondent's logo from applicant's logo and use of almost identical trade mark and logo adversely affected the sale of the applicant's product. 9. Per contra, learned counsel for the respondent contended that no doubt, the respondent was the authorised franchisee of the applicant during the period October'96 to October'99 but after the termination of the agreement, the respondent started selling gold covering ornaments and jewellery under a different name Kalyana Covering and the logo is also different and it is not identical. The respondent had invested huge amount in opening the showroom and after termination of the agreement, he cannot keep quiet without doing any business. In fact, the applicant himself had advertised in the paper the product sold in the shop are not that of the applicant and it is a sufficient warning for the customers. The words 'Kalyani' and 'Kalyana' are phonetically and structurally different and the respondent had neither infringed the trade mark nor the copyright of the applicant and he had also not passed off the goods as that of the applicant. 10. The words 'Kalyani' and 'Kalyana' are phonetically and structurally different and the respondent had neither infringed the trade mark nor the copyright of the applicant and he had also not passed off the goods as that of the applicant. 10. It is seen from Section 31 of Trade and Merchandise Marks Act, that in all legal proceedings relating to a trade mark registered under this Act, the original registration of the trade mark and of all subsequent assignments and transmissions of the trade mark shall be prima facie evidence of the validity thereof. Sub-section (2) also disclosed that in all legal proceedings as aforesaid a trade mark registered in Part A of the register shall not be held to be invalid on the ground that it was not a registerable trade mark under Section 9 except upon evidence of distinctiveness and that such evidence was not submitted to the Registrar before registration if it is proved that the trade mark had been so used by the registered proprietor or his predecessor in title as to have become distinctive at the date of registration. 11. It is therefore clear that the registration of the trade mark by the applicant is sufficient to hold that he has got a valid right relating to the gold plated covering ornaments for manufacture and sale under the trade mark Kalyani Covering. It is also not in dispute that the applicant has registered the artistic work also under the Copyright Act and, as such, the respondent has no right whatsoever to infringe the trade mark or the copyright of the applicant relating to the product sold under the name Kalyani Covering. It has to be kept in mind that the respondent himself was an authorised franchisee for a period of 3 years and he had also dealt with the product of the applicant viz. Kalyani Covering. Only after the termination of the franchise agreement, it appears that the respondent had started the same business under a trade mark Kalyana Covering. The product of the applicant as well as the respondent was produced before the Court. On a perusal of both the products, clearly established that the respondent has adopted a logo which is an imitation of the applicant's artistic Work Kalyani Covering logo registered under the Copyright Act. The product of the applicant as well as the respondent was produced before the Court. On a perusal of both the products, clearly established that the respondent has adopted a logo which is an imitation of the applicant's artistic Work Kalyani Covering logo registered under the Copyright Act. I am unable to agree with the contention of the learned counsel for the respondent that they are not identical and the unwary purchasers are not likely to be mislead. The trade mark as well as artistic work have to be approached based upon the knowledge, capacity and the average intelligence of a person. An ordinary person may not be in a position to distinguish the respondent's logo from the applicant's logo. By this, there is every possibility that the customers will be mislead and they would be purchasing one product for the other. Learned counsel for the respondent further stated that the words 'Kalyani' and Kalyana' are different and, as such, it is possible to identify the same by the customers. They are phonetically and structurally similar and the patent adopted by the respondent is almost identical as that of the applicant's logo. 12. Learned counsel for the applicant relied on Amritdhara Pharmacy v. Satya Deo, wherein it is observed that what had to be considered here was the overall similarity of the composite words, having regard to the circumstance that the goods bearing the two names were medical preparations of the same description, though a critical comparison of the two names might disclose some points of difference. The trade mark is the whole thing - the whole word has to be considered. On a consideration of all the circumstances, the overall similarity between the two names in respect of the same description of goods was likely to cause deception or confusion. 13. The trade mark is the whole thing - the whole word has to be considered. On a consideration of all the circumstances, the overall similarity between the two names in respect of the same description of goods was likely to cause deception or confusion. 13. Learned counsel for the applicant also relied on Amrutanjan Ltd. v. Ashwin Fine Chemicals And Pharmaceuticals, 1991 AIR(Madras) 277, wherein it is observed that considering the very object and purview of the Act, when once the trade mark of a product has been registered at a place specified by the Act and in pursuance of the same, the product in accordance with the registered trade mark has been produced and is being marketed throughout India, then for any wrong done to the said trade mark, part of the cause of action will arise in the place where the trade mark was registered and the products are being produced and marketed. This decision is applicable to the case on hand to establish the point that this court has got jurisdiction to entertain the case. 14. Learned counsel for the applicant also relied on M/s. Hidesign v. M/s. HI-Design Creations, and also the decision in Classic Electronics v. Puneet Industrial Control Pvt. Ltd., 1997 PTC 17 (DB) for the principle that a prima facie case has been made out in regard to infringement of the copyright of the plaintiffs, that the plaintiff had a copyright in the improvements in the designs of relays and circuits invented by him that the plaintiff had also produced enough material before the court in regard to the said ownership and that the plaintiffs have also produced material to show comparison, that the defendant had copied the plaintiffs products, relays and designs and was manufacturing products on that and, therefore, there was infringement of the rights of the plaintiffs. 15. Learned counsel for the respondent relied on Durga Dutt Sharma v. N.P. Laboratories, wherein it is observed that an action for passing off is a Common Law remedy being in substance an action for deceit, that is, a passing off by a person of his own goods as those of another. But that is not the gist of an action for infringement. But that is not the gist of an action for infringement. The action for infringement is a statutory remedy conferred on the registered proprietor of a registered trade mark for the indication of the exclusive right to the use of the trade mark in relation to those goods. The use by the defendant of the trade mark of the plaintiff is not essential in an action for passing off, but is the sine qua non in the case of an action for infringement. No doubt, where the evidence in respect of passing off consists merely of the colourable use of a registered trade mark, the essential features of both the actions might coincide in the sense that what would be a colourable imitation of a trade mark in a passing off action would also be such in an action for infringment of the same trade mark. Where the two marks are identical no further questions arise, for then the infringement is made out. When the two marks are not indentical, the palintiff would have to establish and the mark used by the defendant so nearly resembles the plaintiff's registered trade mark as is likely to doceive or cause confusion and in relation to goods in recpect of which it is registered. 16. Reliance is also palced upon another decision in Parle Products v. J.P. & Company, Mysore, wherein it is observed that to decide the question as to whether the plaintiffs' right to a trade mark has been infringed in a particular case, the approach must not be that in an action for passing off goods of the defendant as and for those of the plaintiff. In order to come to the conclusion whether one mark is deceptively similar to another, the broad and essential features of the two are to be considered. They should not be placed side by side to find out if there are any differences in the disign and if so, whether they are of such character as to prevent one design from being mistaken for the other. It would be enough if the impugned mark bears such an overall similarity to the registered mark as would be likely to mislead a person usually dealing with one to accept the other if offered to him. It would be enough if the impugned mark bears such an overall similarity to the registered mark as would be likely to mislead a person usually dealing with one to accept the other if offered to him. It is of no use to note on how many points there is similarity and in how many others there is absence of it. There is no dispute about this principle. 17. Reliance is also placed in Parle Products Ltd. v. Bakemans Industries Limited (1998-3 L.W. 294) that 'Gluco' cannot be said to be a word and it is a mark invented by the applicant. It is not a distinctive mark, but only a descriptive mark over which no one has any right over the same. This decision is not applicable to the case on hand. 18. Reliance is also placed upon another decision in M/s. Bharat Enterprises (India) v. C. Lall Gopi Industrial Enterprises, 1999 AIR(P&H) 231 wherein it is observed that Heat pillar is a generic word for room heaters. No manufacturer can have exclusive right to use these words and no similarity between trade marks of plaintiff and defendant and temporary injunction against defendant could not be granted. This decision is also not applicable to the case on hand. 19. It is, therefore, clear from the aforesaid propositions that there should be overall similarity of the applicant's the witness has been cross examined. Such affidavit can be properly looked into only at the final stage; at the preliminary stage only documents whose execution is not in serious challenge should be considered. I am, therefore, satisfied that a prima facie case has been overwhelmingly established by the Plaintiff. The balance of convenience is clearly in favour of the Plaintiff. The Defendant has retired from the partnership concern and is, therefore, setting up his fresh business in opposition to the erstwhile firm. His goodwill is in process of being established. It would be far more damaging for him to have to adopt a different trading style after a few years. Moreover, by that time the Plaintiff would already have suffered irreparable damage to his business, even in the face of an agreement reduced to writing. Equity demands immediate interference. Cases referred Shri Jawaharlal and Another v. M/s. Bharat Tobacco Mnfg. Co. 1984 PTC 110 Goramal Hari trade mark in the product sold by the respondent. Moreover, by that time the Plaintiff would already have suffered irreparable damage to his business, even in the face of an agreement reduced to writing. Equity demands immediate interference. Cases referred Shri Jawaharlal and Another v. M/s. Bharat Tobacco Mnfg. Co. 1984 PTC 110 Goramal Hari trade mark in the product sold by the respondent. Applying the principle of law enunciated in the aforesaid decisions, I am of the view that the respondent had infringed not only the trade mark of the applicant but also the copyright of the applicant and the logo is also identical and deceptively similar to that of the applicant and as a result of which, there is every possibility for the unwary purchasers to mislead and purchase the product of one as the product of the other. This applicant's trade mark and the artistic work has also been registered and, as such, the applicant has got prima facie case. The applicant is also carrying the trade for a very long time and the annual sales turnover is also very high when compared to the respondent's sale, which is of recent origin and hence, the balance of convenience is also in favour of the applicant. As such, these points are answered accordingly. 20. For the reasons stated above, O.A. 1996 to 198 of 2000 are allowed. Consequently, A.No. 1057 of 2000 is also allowed.