Judgment :- M. Chockalingam, J. This suit has been filed for a permanent injunction restraining the defendants from infringing the plaintiff's registered trade mark MARS by use of trade mark MARES or any other mark similar to the plaintiff's trade mark MARS, for a permanent injunction restraining the defendants from passing off the defendant's goods and business as and for the plaintiff's goods and business by use of MARES as a trade mark and/or as part of corporate name and trading style by the defendant or by use of any word similar to the plaintiff's trade mark MARS as a trade mark and/or as part of trading style by the defendant, for a preliminary decree directing the defendant to render an account of profits made by it by the use of MARES or any word similar to MARS as a trade mark and/or as part of trading style, for a final decree for the amount of profits found to have been thus made by the defendant, for a direction to the defendant to surrender to the plaintiff for destruction of all goods, cartons labels, containers, blocks, dyes, moulds bearing the word MARES or any word similar to MARS as a trade mark and/or part of trading style and corporate name by the defendant and for costs. 2. Plaint averments are as follows : Plaintiff is a renowned manufacturer and merchant of various types of foodstuff including non-medical confectionery, chocolates and snack foods. Its annual turnover in 1993 was in excess of US Dollars eleven billion. Its snack foods are enjoyed in over one hundred countries including India. It business is known today as Mares Confectionery which is a division of Mars U.K. Limited and which is ultimately owned and controlled by the plaintiff. It has registered trade marks viz., (1) MARS No. 3685, Class 30 for chocolates ; (2) MARS (Stylised) No. 405616 Class 30 for confectionery, biscuits and chocolates ; and (3) MARS (Stylised) No. 455616 Class 30 for confectionery, biscuits and chocolates, which are valid and subsisting. The word MARS also forms the most distinctive and significant portion of the plaintiff's corporate name and trading style. Goods under the trade mark are widely advertised in magazines and newspapers, many of which are sold and read in India on radio and on television. The word MARS also forms the most distinctive and significant portion of the plaintiff's corporate name and trading style. Goods under the trade mark are widely advertised in magazines and newspapers, many of which are sold and read in India on radio and on television. Plaintiff was the official sponsor of the Barcelona Olympics in 1992 and MARS was the official snack food at the 1990 World Cup in Italy. Good bearing the said trade mark MARS are sold extensively in the Indian sub-continent countries as well as in other South East Asian Countries such as China, Hong Kong, Japan, Korea, Thailand, Indonesia, the Philippines, Singapore, Malaysia and Taiwan. The goods under the trade mark MARS are available in India in duty free shops at the international airports, in shops located in the Haryana State Tourist complexes and in shops in and along routes visited by the foreign tourists and in cities of tourist interest all over country. Plaintiff has established a very wide reputation among the Indian Public. Each year a large number of Indians visit the countries where the plaintiff's goods are sold in large quantities and bring back with them the reputation and goodwill attached to the plaintiff's goods. On 11.1.1989, the defendant filed an application with the Registrar of Trade Marks for registration of the trade mark Joocy Burst in its name in respect of chewing gum, bubble gum and confectionery (non-medicated), which was numbered 503728 in Class 30. The said application was advertised in the Trade Mark Journal No. 1056 dated June 1, 1993. Plaintiff filed a notice of opposition against the said application of the defendant on the ground that the trade mark Joocy Burst was deceptively similar to the plaintiff's registered trade mark Starburst. The said opposition was taken on record and numbered Mas-2924 in the office of the Registrar of Trade Marks at Madras. On 28.1.1994, the plaintiff by its attorneys M/s. Lall Lahiri and Salhotra sent a notice to the defendant calling upon them to cease and desist from using MARES as part of its trading style and to withdraw the application No. 503728 for the trade mark Joocy Burst. On 7.4.1994, the plaintiff's attorneys received a letter from the defendant's advocate, denying the plaintiff's allegations. On 7.4.1994, the plaintiff's attorneys received a letter from the defendant's advocate, denying the plaintiff's allegations. The Assistant Registrar of Trade Marks passed an order dated 10.8.1994, that Application No. 503728 shall be treated as withdrawn and the opposition No. MAS 2924 therefore abates. The word MARES which forms the most prominent and distinctive portion of the defendants trading style and corporate name is deceptively similar to the plaintiff's trade mark and trading style of MARS. The defendant is trading in the same goods as those in which the plaintiff's trade mark and trading style MARS acquired a worldwide reputation. The use of the trade mark MARES by the defendant is likely to cause confusion and deception amongst the trade and the public that the defendant is in some manner connected with the plaintiff, and it would amount to infringement of the plaintiff's registered trade mark MARS. By using MARES as its trading style the defendant is seeking to pass off its goods as and for the goods of the plaintiff. As the defendant is carrying on business in Madras, this Court has the jurisdiction to try and entertain this suit. Hence this suit. 3. The defendant filed a written statement contending that the plaintiff is practically unknown to the defendant. The defendant's company was incorporated under Indian Companies Act, 1956 on 26.5.1982. The defendant's organisation had been created for the purpose of market research activities and the name was taken therefrom viz., MARES, which was initially a partnership firm having its office at No. 13-A, Sriram Nagar West, Madras-600018. This partnership firm was carrying on business in the manufacture and sale, import, etc. of Lollipops, chocolates, etc., Clause III(A) of the Memorandum of Association of MARES Confectioneries Private Limited indicates the main objects of the company. Items of confectionery manufactured by the defendant are marketed only under trade mark belonging to Parry's Confectionery Limited viz., "Parrys". Several agreements have been executed between Parry's Confectionery Limited and the defendant. The agreements also indicates that PCL have been providing the defendant the basic recipe and the process of manufacture relating to the products to be manufactured. The Registered Office is at No. 7, 5th Cross Street, CIT Colony, Mylapore, Madras while the factory is at No. 259/1, 259/2, Lattice Bridge Road, (Near SRP Tools), Madras. The agreements also indicates that PCL have been providing the defendant the basic recipe and the process of manufacture relating to the products to be manufactured. The Registered Office is at No. 7, 5th Cross Street, CIT Colony, Mylapore, Madras while the factory is at No. 259/1, 259/2, Lattice Bridge Road, (Near SRP Tools), Madras. They are further not trading in the name MARES Confectioneries Private Limited and no product is at present available in the market under the said trade. The wrappers containing the product of the defendant will indicate that the products in question do not carry the defendant's name as its brand name but only indicate the name of the manufacturer as the defendant which is a statutory requirement. Therefore, MARES Confectioneries Private Limited is not a trade mark or a trade name, but is a Company. There is no question of the defendant copying the plaintiff's trade mark MARS or infringing upon it. The defendant's act in withdrawing Application No. 503728 will not in any manner strengthen the plaintiff's case. The present issue before this Court is totally different from that which was the subject matter of Application No. 503728. No item of confectioneries, chocolates, bubble gum, chewing gum, etc., are marketed under the said trade mark. The plaintiff cannot prevent the defendant from trading in the same goods as the plaintiff herein, as that is a fundamental right enshrined in the Constitution of India. By the defendant continuing its present manufacturing operation no prejudice or loss in any manner will be caused to the plaintiff. As far as this defendant is concerned, the plaintiff has not made any impact whatsoever either in Madras or the rest of India. The plaintiff acquired the trade mark MARS in May, 1983 while the defendant had been registered under the Indian Companies Act even prior to the above date. Hence the suit is liable to be dismissed with costs. 4. On the above pleadings, the following issues were framed : (1) Whether the goods bearing the trade name MARS have been selling extensively in the Indian sub-continent ? (2) Whether the plaintiff has established a very wide reputation among the Indian public ? (3) Whether the word MARES used by the defendant is deceptively similar to the plaintiff's trade mark MARS ? (2) Whether the plaintiff has established a very wide reputation among the Indian public ? (3) Whether the word MARES used by the defendant is deceptively similar to the plaintiff's trade mark MARS ? (4) Whether using the word MARES by the defendant amounts to infringement of the plaintiff's Trade Marks MARS and causing confusion and deception among the trade and public ? (5) Whether the plaintiff is registered proprietor of trade mark MARS under Nos. 3685, 405616 and 405656 ? 5. The following additional issues were framed : (1) Whether the power of attorney executed in favour of the applicant is valid and is subsisting ? (2) Whether the suit is maintainable ? 6. Issues 1 to 5 and Additional Issues 1 and 2 : The plaintiff has filed the suit for grant of permanent injunction restraining the defendant from infringing the plaintiff's registered trade mark MARS by use of the trade mark MARES or any mark similar to the plaintiff's trade mark MARS, permanent injunction restraining the defendant from passing off the defendant's goods as and for the plaintiff's goods and business by use of MARES as a trade mark and as part of corporate name and trading style by the defendant or by use of any word similar to the plaintiff's goods and business by use of MARES as a trade mark and as part of corporate name and trading style by the defendant or by use of any work similar to the plaintiff's trade mark MARS as a trade mark and/or as part of trading style by the defendant or in any other manner whatsoever, for grant of a preliminary decree for rendition of accounts and a direction to surrender to the plaintiff for destruction of all goods, cartons, labels, containers, blocks, dyes, moulds bearing the word MARES or any word similar to MARS as a trade mark and/or part of trading style and corporate name by the defendant. 7. Mr. C.K. Virmani, Power of Attorney for the plaintiff was examined as P.W. 1. His evidence is that Ex. P-1 is the xerox copy of the deed of power of attorney executed by the plaintiff in his favour. It has been revoked at any point of time. As per Clauses 1 and 2 of Ex. P-1, he is authorised to sign, verify and carry on any plaint or suit. The signature of the executant in Ex. P-1 is the xerox copy of the deed of power of attorney executed by the plaintiff in his favour. It has been revoked at any point of time. As per Clauses 1 and 2 of Ex. P-1, he is authorised to sign, verify and carry on any plaint or suit. The signature of the executant in Ex. P-1 is attested by a Notary Public. The signature in page 10 of the plaint is his signature and he signed and verified the same. 8. Mr. Boota Singh Dhillon, Finance Manager of Masterfood Middle East FZE was examined as P.W. 2. He would depose that Masterfoods Middle East FZE is a wholly owned subsidiary of Effemex Ltd., which is a wholly owned subsidiary of Mars Incorporation, the plaintiff. He worked for the plaintiff for 21 years. Plaintiff-company is situated in Virginia in USA. Plaintiff is a Corporation incorporated under the laws of State of Dallaware, USA. Ex. P-2 is the original certificate of incorporation of the plaintiff-company. Plaintiff-company has given power to Mr. C.K. Virmani to file the suit. Ex. P-1 was signed by R.A. Steele the Assistant Secretary of the plaintiff company and was not raised by the Notary Public in Sydney, Australia, Ex. P-1A is the certificate given by the Notary Public. Ex P-1B is the certificate issued by Almaza Shenouda of the Department of Foreign Affairs Trade identifying the signature of N.B. Pappas. Ex. P-1C is the attestation by the Vice Consul, Consulate General of India, Sydney. Plaintiff is a world leader in snack foods and confectionery. The annual turnover of the plaintiff in 1993 was 11 billion US Dollars, and in 1999, it was in the region of 14 billion US Dollars. It employed 30, 000 employees. In 1993, it was about 28, 000. It has manufacturing facilities in about 30 countries. Plaintiff is manufacturing products like chocolates, sugar, ice cream, pet care products, mainmeal products. Ex. P-3 is the original trade mark registration certificate for the trade mark MARS, while Ex. P-4 is another registration certificate of the trade mark MARS. Ex. P-5 is another such certificate for the trade mark MARS under registration No. 405656 Ex. P-6 is the schedule of registration and application held by the plaintiff for the trade mark MARS all over the world. All these registrations are valid and they are still subsisting. P-4 is another registration certificate of the trade mark MARS. Ex. P-5 is another such certificate for the trade mark MARS under registration No. 405656 Ex. P-6 is the schedule of registration and application held by the plaintiff for the trade mark MARS all over the world. All these registrations are valid and they are still subsisting. The advertisement in various magazines and newspapers is marked as Ex. P-7. Plaintiff has officially sponsored the Barcelon Olympics in 1992. It has also sponsored the Soccer World Cup in Italy in 1990. Their products are sold extensively in India in major cities, Airports, duty free shops at the International Airports and in departmental stores and in shopping complexes. Ex. P-8 series are the bills of lading for goods exported by the plaintiffs to India. The phamplet of the Barcelon Olympics is marked as Ex. P-9. Ex. P-10 is the associate magazine, Ex. P-11 series are cash memos of the plaintiff for the goods sold at Chennai, Mumbai and Delhi. Ex. P-12 series are product wrappers of MARS products. Ex. P-13 is a copy of the trade mark journal No. 12056 dated 1.6.1993. There is an application by MARES Confectionery Pvt. Ltd to register Joocy Burst product which is similar to MARS product called Star Burst, that application was opposed by the plaintiff. Ex. P-14 is the copy of the order passed by the Registrar of Trade Marks stating that the application has been withdrawn and the opposition filed by the plaintiff abates. Ex. P-15 is the copy of the notice issued to the defendant. Ex. P-16 is the copy of the reminder. Exs. P-17 and P-18 are the acknowledgements. The original reply sent by the defendant is marked as Ex. P-19. Ex. P-20 is a certificate authorising R.A. Steele appointing her as the Assistant Secretary of MARS Incorporated. Plaintiff is the parent company of Effemex Limited. Exs. P-21 and P-23 are the original cash memos for purchase of chocolates MARS. 9. Mr. S. Ram Kumar, a Director in the defendant-company was examined as D.W. 1. He would state that Ex. D-1 is the memorandum and articles of association of the defendant-company. In the word MARES, MA stands for market and RES stands for research. The defendant-company right from the beginning was manufacturing lollipops and they are not sold under the name MARES. S. Ram Kumar, a Director in the defendant-company was examined as D.W. 1. He would state that Ex. D-1 is the memorandum and articles of association of the defendant-company. In the word MARES, MA stands for market and RES stands for research. The defendant-company right from the beginning was manufacturing lollipops and they are not sold under the name MARES. The lollipops are sold under the trade name Parry's and Fun Pop. Ex. D-2 is the wrapper which is used to wrap the Parry's lollipop. Ex. D-4 is the sticker used by the Parrys Lollipop. Ex. D-5 is the wrapper used to wrap the Fun Pop Lollipop. Plaintiff's product is the chocolates. He has been associated with the defendant-company for the past 18 years. It is not correct to state that the trade name MARS of the plaintiff-company is widely advertised in India through Television, Radio, Press and other medias. In Exs. D-2 and D-4 the defendant's company's name is not found. In Exs. D-3 and D-5 the name of the defendant company is found. Ex P-12 series are the plaintiff's wrappers. There is no similarity in the wrappers of the plaintiff's products found in Ex. P-12 series and the wrappers of the defendant-company in Exs. D-2 to D-5. Application No. 143 of 2000 was filed to examine Mr. Virmani. The affidavit in support of the said application has been filed by one Mr. Bhuta Singh Dhillon. An Additional affidavit was filed by one Mr. R. Arulselvan, wherein in para 5 it is stated that C.K. Virmani is no longer connected with the plaintiff-company and that his power of attorney has been revoked. The plaintiff filed Contempt Application No. 28 of 1998 against the defendant and the application is market as Ex D-6. The name MARES Confectioneries Limited is the name of the defendant-company and it is not the brand name or trade mark of the defendant's product. The defendant has not infringed the trade mark of the plaintiff in any manner. Ex D-10 is the copy of the Form No. 32 submitted to the Registrar, for the inclusion and exclusion of Directors. Ex D-11 is the notice given for the meeting of the Board of Directors to be held on 28.4.1992. Ex D-12 is the extract of the minutes of the aforesaid board meeting. Ex D-10 is the copy of the Form No. 32 submitted to the Registrar, for the inclusion and exclusion of Directors. Ex D-11 is the notice given for the meeting of the Board of Directors to be held on 28.4.1992. Ex D-12 is the extract of the minutes of the aforesaid board meeting. As per Ex D-12 he has been authorised to handle the legal matters on behalf of the defendant-company. Ex. D-13 is one of the despatch plans given by Parry Confectionery of the defendant-company for the manufacture of Lolly-pop. Ex. D-14 is one of the debit notes given by Parry Confectionery to the defendant-company. Ex D-15 is the carbon copy of cheque covering letter given by Parry Confectionery. Normally Parry Confectionery send the original to them and retain the copy. Ex D-16 is the original cheque covering letter dated 20.11.1996. Ex. D-17 is the carbon copy of the cheque covering letter dated 20.12.1996. Ex. D-18 is the carbon copy of the cheque covering letter dated 28.1.1997. The despatch plans given by Parry Confectionery to the defendant for August, 1996 and November, 1996 are marked as Exs. D-19 and D-20. 10. Ex D-16 is the original cheque covering letter dated 20.11.1996. Ex. D-17 is the carbon copy of the cheque covering letter dated 20.12.1996. Ex. D-18 is the carbon copy of the cheque covering letter dated 28.1.1997. The despatch plans given by Parry Confectionery to the defendant for August, 1996 and November, 1996 are marked as Exs. D-19 and D-20. 10. Arguing for the plaintiff, the learned counsel seal would submit that the plaintiff is a renowned manufacturer and merchant of various types of foodstuff, including non-medicated confectionery, chocolates and snack foods ; that it employees 30, 000 persons with operations in more than 30 countries ; and the turnover of the plaintiff in 1993 was in excess of US dollars 11 billion ; that the plaintiff's products are sold and distributed in over 100 countries including India ; that the plaintiff is the registered proprietor in India of the following among other trade marks MARS-No. 3685-Class-30-Goods : Chocolates ; that the plaintiff has filed its trade mark MARS registered under No. 3685 as document Ex P-3, which has not been objected to by the defendant ; that the registration has been duly renewed and it is valid and subsisting, the word MARS forms a most distinctive and significant feature of the plaintiff's corporate name and trading style -; that the plaintiff's goods under the said trade mark are widely advertised in magazines, newspapers, journals etc., many of which are sold and read in India, apart from advertisements made in Radio and television ; that the plaintiff also promotes its products by sponsoring international sports events ; that it was the official sponsor of the Barcelon Olympics in 1992 and the plaintiff's products were the official snack foods in World Cup in Italy in 1990 ; that the plaintiff's products under the trade mark MARS are available in India in duty free ships at all international airports, tourist centers, etc., that the direct sales have also been made through 'Grey Channels' in India ; that the advertisement cuttings are marked as Exs. P-7, P-9 and P-10 series, which document are also not objected to by the defendant and thus the trade mark of the plaintiff MARS has become an internationally well known trade mark and it is exclusively identified with the plaintiff's goods and business worldwide ; that when the defendant filed an application with the Registrar of Trade Marks for registration of the trade mark Juicy Burst on 11.1.1989 in respect of chewing gum, bubble gum and non-medicated confectionery, the same was advertised in the trade mark journal ; that the plaintiff filed a notice of opposition for the said application on the ground that the trade mark Juicy Burst of the defendant was deceptively similar to the plaintiff's trade mark Star Burst ; that on 19.8.1994, an order of the Assistant Registrar of Trade Marks was received by the counsel for the plaintiff stating that the application filed by the defendant was dismissed as withdrawn and the opposition of the plaintiff was allowed with costs and the certified copy of the same is filed as Ex. P-14 ; that several letters issued by the plaintiff to the defendant calling upon them to cease and desist from using MARES as a trade mark were not cared by the defendant, but the defendant sent a reply through its counsel denying the allegations made in the letters ; that those letters and acknowledgement cards are marked as Exs. D-15 to D-19 ; that the word MARES forms the most prominent and distinctive portion of the defendant's trading style and corporate name is deceptively similar to the plaintiff's trade mark and trading style MARS ; that the specimen of the defendant's letter head under Ex. D-9 and the defendant's product wrappers Exs. D-3 and D-5 and cards Exs. D-15 to D-19 ; that the word MARES forms the most prominent and distinctive portion of the defendant's trading style and corporate name is deceptively similar to the plaintiff's trade mark and trading style MARS ; that the specimen of the defendant's letter head under Ex. D-9 and the defendant's product wrappers Exs. D-3 and D-5 and cards Exs. D-7 and D-8 would clearly prove the use of the corporate name and trading style of Mares Confectionery Pvt. Ltd., by the defendant ; that the use of the trade mark MARES by the defendant as part of the trading style would cause confusion and deception amongst the trade and public ; that the defendant is in some manner connected with the plaintiff and thus the use of MARES as part of the corporate name or trading style by the defendant would amount to infringement of plaintiff's mark MARS, and apart from that, the word MARES used by the defendant is phonetically and visually similar to plaintiff's registered trade mark MARS ; that the defendant has merely added the vowel 'E' to the plaintiff's registered trade mark MARS ; that the use of MARES as part of the corporate name and trading style bound to cause confusion and deception amongst the trade and public ; and apart from that by using MARES the defendant is seeking to pass off its goods as and for the goods of the plaintiff ; that the defendant has no right to do so and it would clearly indicate the intention of the defendant to cash in the reputation and goodwill of the plaintiff ; that insofar as the first issue whether the goods bearing the trade mark MARS have been selling extensively in Indian Subcontinent, the plaintiff has made a specific pleading and narrated in detail how the products of the plaintiff-company have been selling extensively in Indian Subcontinent as well as the other countries ; that it has been clearly stated that the trade mark MARS are available in India in duty free shops at the international airports, shops in Haryana Tourist Complexes, in cities of tourists' interest all over the country and direct sales made through "Grey Channels" in India ; that number of Indians visit the countries where the plaintiff's goods are sold in large quantities and bring back with them to India as presents ; that apart from that these averments have not been specifically and expressly denied by the defendant in the written statement ; that it is pertinent to note that the defendant has stated that they have no knowledge of the same ; that in this connection, Ex. P-8 series may be looked into, which are bills of lading for goods exported to India by the plaintiff which have been admitted by D.W. 2 in the cross examination ; that Ex. P-11 series were the cash memos of the plaintiff's goods sold in Madras, Mumbai and Delhi, which have also been admitted by D.W. 1 ; that Exs. P-22 and P-23 are the cash memos for the purchase of chocolates MARS in Madras ; that P.W. 2 examined in detail has deposed regarding the sale of plaintiff's MARS chocolates in duty free shops being brought to India by people visiting to India ; that he has also further deposed regarding the export of the plaintiff's MARS chocolates to India and the plaintiff's goods were available in duty free shops and other shops in India ; that it is pertinent to note that D.W. 1 has admitted the sale of the plaintiff's MARS chocolates in Burma Bazaar and being brought to India by Indians visiting abroad and he has also seen the chocolates of the plaintiff in duty free shops when he visited Europe ; that D.W. 1 has also further admitted that he has seen plaintiff's MARS chocolates in the city of Chennai like Nilgiris, Pushpa, Shopee, Food World etc., and thus in view of the above evidence, the plaintiff's sale of MARS chocolates in India has been proved beyond doubt ; that the plaintiff has also established by ample evidence that the plaintiff has got a wide reputation among the Indian public ; that though the plaintiff has brought forth sufficient oral and documentary evidence, the same has not been denied by the defendant's side ; that D.W. 1 has stated that he has no knowledge of the said averments ; that a perusal of Ex. P-7 series advertisements in various magazines and newspapers will show its reputation in India ; that the plaintiff was the official sponsor in world events and its products were freely used ; that Ex. P-7 series advertisements in various magazines and newspapers will show its reputation in India ; that the plaintiff was the official sponsor in world events and its products were freely used ; that Ex. P-9 and P-10 documents would indicate that pamphlets were used in World Sports Events ; that the answer given by D.W. 1 that of his knowledge it is incorrect to state that the plaintiff has made wide advertisement in India is not a proper answer ; that the proposition of law laid down by the Apex Court and by various High Courts in India is that if the plaintiff's product is sold in several geographical regions around the world and is advertised in magazines having international circulation is India ; although the plaintiff has not made out a case of actual side of its product in the markets in India, the reputation is travelling transborder to India as well as through the commercial publicity made in magazines which are available in or brought in India ; that even advertisement of the mark without existence of the goods in the market is also to be considered as use of the mark ; that it is also not necessary that the association of the plaintiff's mark with his goods should be known all over the country or to every person in the are where it is known best ; Added further the learned counsel that the word MARES used by the defendant is deceptively similar to the plaintiff's trade mark MARS ; that Ex. P-12 series are the product wrappers of MARS products ; that these products belong to the plaintiff ; that when it is compared with Ex. P-12 series are the product wrappers of MARS products ; that these products belong to the plaintiff ; that when it is compared with Ex. D-9 the letter head of the defendant, it could be seen that the defendant's MARES is deceptively similar to the trade mark MARS of the plaintiff ; that mere comparison is enough to prove the similarity ; that the word MARES used by the defendant is phonetically and visually similar to the plaintiff's MARS which also forms predominant feature of the plaintiff's corporate name and trading style viz., Mars Inc., that in support of the above contention, the learned counsel for the plaintiff relied on the decisions viz., K.R. Chinna Krishna Chettiar v. Sri Ambal & Co., 1970 AIR(SC) 149; Ruston & Hornby Ltd. v. Zamindara Engineering, 1972 AIR(SC) 1649, that the use of the word MARES amounts to infringement of the plaintiff's trade mark MARS and he has caused confusion and deception amongst the trade and public ; that in para 20 of the plaint, the plaintiff has specifically made an averment that the word MARES which forms the most prominent and distinctive portion of the defendant's trading style and corporate name is deceptively similar to the plaintiff's trade mark and trading style MARS ; that the defendant is trading in the same goods as those in which the plaintiff's trade mark and trading style MARS had acquired a worldwide reputation ; that the plaintiff has also further stated that the use of the trade mark MARES by the defendant is likely to cause confusion and deception among the trade and public ; that the defendant is in some manner connected with the plaintiff ; that it is also specifically averred that the use of the word MARES amounts to infringement of the trade mark MARS ; that it is pertinent to note that these specific averments are not specifically denied in the written statement; that the defendant has been registered under the Companies Act even prior to May, 1983 ; that the defendant has stated that there is absolutely no question of the defendant attempting to interfere in any manner with the plaintiff's business ; and the plaintiff cannot prevent the defendant from functioning under the corporate name MARES Confectioneries P. Ltd., especially as the same has been incorporated under the Companies Act, 1956 even before the plaintiff has acquired the trade mark MARS ; that in short the defendant has stated that they are the prior user of this mark MARES, but it is not correct ; since the defendant has ignored the registration obtained by the plaintiff for the mark MARS in the year 1942 and the defendant's company was formed in the year 1982 and D.W. 1 has admitted in the cross examination that the partnership firm of the defendant was not manufacturing lollypop and chocolates, etc. ; that only after the incorporation of the defendant-company, they stated manufacturing lollypops ; that D.W. 1 has admitted that he cannot say anything about the defendant's firm prior to 1983 ; that apart from that, they have not filed any documents to show the exact date of the commencement of the defendant's products ; that in the absence of these particulars, the contention that they are the prior user cannot be accepted at all and therefore the only answer is that by using the word MARES amounts to infringement of trade mark MARES which is a registered one and it is also a statutory right of the plaintiff which cannot be infringed by using similar mark and thus the plaintiff has proved the same. In support of the above contention the plaintiff's counsel relied on the following decisions : Ellora Industries v. Banarsi Das, and Kirloskar Diesel Recon Pvt. Ltd. v. Kriloskar Proprietory Limited, that the plaintiff has filed the trade mark registration certificate under Ex P-30 for the trade mark MARS and it is renewed for a period of seven years till 2006 ; that Exs. P-4 and P-5 are also registration certificates ; that though the validity of these two certificates expired in 1997 as per the documents marked, the registration certificates were valid and subsisting on the date of the institution of the suit ; that regarding the power of attorney, the question need not be considered at all, since the defendant has not pleaded this question of power of attorney in the written statement ; and no issues have also been framed ; that it is well known principle that without a pleading and an issue, no manner of evidence could be let in and raise at a later stage and argued ; and so this issue should not be considered at all and apart from that much water has fallen under the bridge regarding this aspect during the course of the case ; that P.W. 1 Mr. C.K. Virmani who is an advocate by profession is the power of attorney for the plaintiff-company and he was authorised to sign and verify the plaint ; that he was examined to mark the deed of power of attorney and marked Ex. C.K. Virmani who is an advocate by profession is the power of attorney for the plaintiff-company and he was authorised to sign and verify the plaint ; that he was examined to mark the deed of power of attorney and marked Ex. P-1 which is a valid one and duly attested and which was signed by R.A. Steele, the Assistant Secretary of the plaintiff-company and the signature of the said Assistant Secretary has been not raised by a notary public in Sydney, Australia, because R.A. Steele is working in Sydney who was authorised to sign for the plaintiff-company ; that Ex. P-1A is the certificate given by the notary while Ex. P-1B is the certificate issued by the department of foreign affairs and trade, identifying the signature of N.B. Pappas, the notary public and Ex. P-1C is the attestation by the Vice Consul, Consulate General of India, Sydney and thus all the formalities required to make the deed of power of attorney valid under the Powers of Attorney Act that have been strictly complied with the thus Ex. P-1 is a validly executed power of attorney ; that P.W. 2 was cross examined on this aspect ; but no question was asked about the validity of the deed ; that P.W. 2 has stated that the power given to P.W. 1 was revoked in the year 1999 and the power was not subsisting therefrom ; that since a contention was raised by the defendant's side that P.W. 2 has not filed any document to show that he was the Finance Manager of the plaintiff-company and he was not authorised to depose in Court, Ex P-24 document was filed which was a original letter authorising P.W. 2 Finance Manager to depose the case ; that P.W. 2 was the Finance Manager of the plaintiff-company ; that the power was given now to one Arul Selvam ; that in the light of the above developments during the pendency of the suit, the defendant's advocate may argue that Ex. P-1 is no longer valid and in subsistence ; that the suit was filed in 1995 by the duly constituted attorney of the plaintiff ; that Ex. P-1 is no longer valid and in subsistence ; that the suit was filed in 1995 by the duly constituted attorney of the plaintiff ; that Ex. P-1 was duly executed and attested ; and hence the suit filed is valid in law and the removal of the attorney during the pendency of the suit shall not render the suit invalid and that is why the power of attorney was not examined to prove the case ; that he was examined for the limited purpose of marking the document and identifying the power of attorney, who filed the suit ; that P.W. 2 was examined to prove the case, who is duly authorised by the plaintiff and equally competent ; that D.W. 1 has not been authorised to conduct the legal proceedings or to give a evidence in the case ; that the defendant being a company incorporated under the Companies Act, 1956, no person is authorised to verify the pleadings and execute Vakalath for the company unless such person is authorised to do so under the provisions of the Companies Act ; that before the trial of the suit, no document was filed by the defendant ; that D.W. 1 was confronted with this in cross-examination ; that he state that he did not know whether it is necessary under the Companies Act that he should be authorised to verify, sign the pleadings, execute Vakalath and conduct the proceedings in the Court and he has not filed any resolution also ; that he has also stated that he did not see any resolution ; that after the closure of D.W. 1's evidence, the defendant filed an application to recall D.W. 1 to mark additional documents filed therewith and D.W. 1 was recalled and Exs. D-11 and D-12 were marked ; that a perusal of the documents would clearly show that no such meeting could have been held in the address given there and in order to get over the legal difficulty, the said documents have been created to suit the convenience and to get over the legal impediment and thus the written statement has been filed by a person without board resolution ; which is invalid and ought not be given any consideration ; that being a company, the Board of Directors have to call for Director's Board Meeting and pass a resolution authorising some one to conduct the legal proceedings, that Exs. D-11 and D-12 are not valid in law and hence the written statement is not valid in law and has to be ignored and thus the plaintiff has proved that the defendant's use of the word MARES is clearly a violation of statutory rights conferred to the plaintiff by virtue of registration of their trade mark and hence the suit has got to be decreed as prayed for. 11. 11. Vehemently opposing all the contentions of the plaintiff's side, the learned counsel for the defendant would submit that the plaintiff is not entitled for any relief as asked for ; that no competent or knowledgeable witness has been examined on the side of the plaintiff to prove the averments in the plaint ; that the plaint has been signed by one C.K. Virmani as the Power of Attorney Agent of the plaintiff ; that an application has been filed by the plaintiff in Application No. 123 of 2001 for issue of commission to examine the said Virmani in New Delhi ; that the application was dismissed by the Court ; that it is pertinent to note that in support of the application an affidavit was filed by Bhoota Singh Dhillon, who was examined as P.W. 2 ; that it would be clear that P.W. 1 was the competent person to speak about the details in the plaint ; that P.W. 1 has not spoken anything about any one of the averments or allegations in the suit ; the P.W. 2 has admitted that he is based in Dubai and that he was also not award whether one Arul Selvam was employed in the plaintiff-company that he has not filed any document to show the business turnover of the plaintiff in India ; that he was not aware whether the plaintiff sponsored any sporting event in India ; that he could not sew anything as to the places where products of the plaintiff were available in the duty free shops ; that a scrutiny of his evidence would clearly show that he is also not a competent witness to speak about any one of the facts found in the plant; and thus the plaint averments have not been proved in any way; that no evidence has been let in on the side of the plaintiff to prove that goods bearing trade mark MARS has been extensively selling in the Indian subcontinent that the plaintiff has not given any details regarding the extent of sale on the Indian subcontinent, annual turnover, extent of profit if any etc.; that the averments made in the plaint would indicate the hollowness of the plaintiff's claim that the goods bearing the trade mark MARS are sold extensively in the Indian subcontinent; that P.W. 1 has not spoken anything about the extent of the sale of goods bearing the trade mark MARS in the Indian subcontinent; that P.W. 2 on the other hand has stated that he has not filed any document to show the business turnover of the plaintiff; that as stated above P.W. 2 could not be a competent witness to speak about that fact ; that Ex. P-11 series are dated in 1999, 4 years after the filing of the suit and obviously cannot help the plaintiff in any manner and also will not throw light on the extent of sales prior to the file of the suit in 1995 ; that Exs. P-21 to P-23 bear the dated 3.11.2000 and once again it cannot help the plaintiff's case ; that Exs. P-21 to P-23 would indicate the business so negligible; that a perusal of Exs. P-11 series and Exs. P-21 to P-23 will clearly indicate that those documents were procured and prepared for the purpose of the case ; that the defendant has examined D.W. 1 a Director of the defendant, who has categorically stated that it is not correct to state that the trade name MARS of the plaintiff-company is widely advertised in India through Television, Radio, Press and media because there is no manufacturing base for the plaintiff in India ; that to his knowledge, the products of the plaintiff are not used in Madras city muchless in Tamilnadu or the rest of India ; that no evidence has been let in by the plaintiff to prove that the plaintiff has established a worldwide reputation among the Indian public ; that the plaintiff cannot assume that international reputation would have spilled over to India by television coverage, advertisement in magazines available in India, etc., that no evidence whatsoever has been let in on that point ; that though Ex. P-7 series are in respect of the advertisements in magazines and newspapers published outside India, there is no evidence regarding whether these magazines, newspapers, etc., are even available in India ; that further it is significant to note that the plaintiff has no proved the availability of the goods in India or its advertisement within the country ; that the judgment relied on by the plaintiff will not help the plaintiff's case in any manner as facts therein are totally different ; that the evidence let in the instant case both oral and documentary would clearly reveal that of word MARES used by the defendant is not similar at all to the plaintiff's trade mark MARES ; and also using the word MARES by the defendant would not amount to infringement of the plaintiff trade mark MARS and also did not cause any confusion or deception among the trade and public ; that as per Section 29 of the Trade and Merchandise Marks Act, 1958, a registered trade mark would be infringed by a person, who not being the registered proprietor of the trade mark or a registered user thereof using in the course of trade, a mark which is identical with, or deceptively similar to, the trade mark in relation to any goods in respect of which the trade mark is registered ; that in the present case MARES viz., the defendant is not the trade mark or the trade mark or the trade name as has been set out in the written statement ; that the defendant-company is incorporated under the Indian Companies Act, 1956 on 26.5.1982 with the certificate of incorporation ; that the defendant's organisation had been created for the purpose of market research activities and name also was taken therefrom, viz., MARES, the letters MA to indicate the word Market and the letters RES to indicate research ; that MARES was initially a partnership firm and subsequently became a private limited company with the name MARES Confectionery Private Ltd., that being so, there is no question of the defendants bearing the trade mark or trade name or carrying on business using their trade mark or trade name as required in law for maintaining the present suit and thus the defendant is a company and not a trade mark or trade name and on that ground, the suit has got to be dismissed. Added further the learned counsel that the defendant is admittedly not involved in the manufacture of chocolates and are only manufacturing lollipops, cool mints, voz, maristick, etc. ; that a perusal of Ex. P-12 and Exs. D-3 to D-5 will clearly indicate that there is absolutely no similarly whatsoever between them ; and thus there is no possibility of any confusion or deception being caused among the trade and public ; that the products manufactured by the defendant were marketed under the trade mark belonging to Parry's Confectioneries Ltd., viz., "Parry's" and in or brand name viz., "Funpop" ; that the Contempt Application No. 28 of 1998 filed by the plaintiff against the defendant was dismissed, as found under Ex. D-6 ; that Exs. P-15 to P-18 and Exs. D-19 to D-20 will clearly indicate the nature of transaction between Parry Confectionery Limited and the defendant ; that in the cross-examination P.W. 2 has stated that personally he has not seen the defendant manufacturing these items with the name MARES ; that in support of his contentions, the learned counsel relied on the following decisions : (1) Indo Pharma Pharmaceutical Works Ltd. v. Citadel Fine Pharmaceutical Ltd., 1998 AIR(Madras) 347 ; (2) Parle Products Limited v. J.P. & Company (3) Parle Products Limited v. Bakemans Industries Ltd., 1998 (3) LW 294 ; (4) Victory Transport Company (P) Ltd v. District Judge, Ghaziabad, (5) M/s. Vrejilal & Company v. M/s N.S. Bide Company (6) Durga Dutt Sharma v. Navaratna Pharmaceutical Laboratories, and (7) M/s. Malhotra Tyre Service Company v. M/s Malhotra Tyres (P) Ltd., 1991 AIR(Delhi) 9. That it is admitted that the trade mark registration certificate for the trade mark MARS under Ex. P-3 is valid till 2006 while the certificate under Ex. P-4 and Ex. That it is admitted that the trade mark registration certificate for the trade mark MARS under Ex. P-3 is valid till 2006 while the certificate under Ex. P-4 and Ex. P-5 expired in 1997 and they have not been renewed thereafter ; that Section 28(1) of the Trade and Merchandise Marks Act, 1958 makes it clear that the registration of the trade mark shall if valid give to the registered proprietor of the same the exclusive right to the use of the trade mark in relation to the goods in respect of which the trade mark is registered and to obtain relief in respect of infringement of the trade mark in the manner provided by this Act ; that the plaint in the above case seems to have been signed some time in the year 1994 by one C.K. Virmani ; that along with the plaint, the copy of the power of attorney allegedly executed in favour of Virmani has been filed as document No. 11, but no date has been mentioned therein ; that D.W. 1 was fully competent to sign and verify the pleadings, the plaintiff themselves having styled him as a Director of the defendant in the Contempt Application No. 28 of 1998 ; and thus the plaintiff has not proved its case and therefore, the suit is liable to be dismissed. 12. The plaintiff has sought for the reliefs stated above alleging that it is a corporation organized and existing under the laws of the State of Delaware, United States of America, Virginia and Mr. C.K. Virmani is the constituted attorney of the board and duly authorized to sign and verify the plaint. The said Virmani examined as P.W. 1 has stated that in the chief examination that he was the power of attorney for the plaintiff-company ; that Ex. P -1 was the xerox copy of the deed of power of attorney executed by the plaintiff in his favour, that it was still subsisting and was not revoked at any point of time, that as per Clause 1 and 2 of Ex. P-1, he was authorized to sign, verify and carry on any plaint or suit and he has signed the plaint and his signature in Ex. P-1 was attested by a notary public ; that he has signed and verified the same as plaintiff's constituted attorney. Though Ex. P-1, he was authorized to sign, verify and carry on any plaint or suit and he has signed the plaint and his signature in Ex. P-1 was attested by a notary public ; that he has signed and verified the same as plaintiff's constituted attorney. Though Ex. P-1 was market through him, in the cross-examination, he has admitted that Ex. P-1 power of attorney was executed by MARS Incorporated without seeing the power of attorney ; that he could not say who executed it that the plaintiff-company was incorporated in U.S.A. that Ex. P-1 was sworn to by a notary public in Australia that he could not explain how Ex. P-1 was executed by a company in U.S.A. and was sworn to by a notary public in Australia ; that he was not aware whether there was a board resolution authorizing R.A. Steele to execute the power of attorney ; that after 1995, during the various proceedings in this case, he was not sure as to who instructed the counsel on behalf of the plaintiff, that he was no more associated with the advocates Lall, Lahiri and Salhotra in New Delhi that he was associated with them from 1989 to 2000 ; that out of the four agents mentioned in Ex. P-1, the first two are still with Lall, Lahiri and Salhotra while he did not know about the fourth ; that he was not aware whether his power of attorney did not subsist and that it was cancelled by the plaintiff long back. A perusal of Ex. P-1 would reveal that the same was executed by R.A. Steele, Assistant Secretary of the plaintiff-company. P.W. 1 has categorically stated that he was not aware whether a board resolution was passed authorizing R.A. Steele to execute a power of attorney. No Board resolution authorizing R.A. Steele to execute the power of attorney has been filed by the plaintiff's side. It is a matter of surprise to see that P.W. 1 has stated that in the year 1995 he signed the plaint without knowing whether the power under Ex. P-1 has been revoked or not, as he did not receive any notice of revocation. Though P.W. who has verified and signed the plaint was examined by the plaintiff's side, he has not spoken to about anyone of the facts in the plaint. 13. The plaintiff has examined P.W. 2 one Mr. P-1 has been revoked or not, as he did not receive any notice of revocation. Though P.W. who has verified and signed the plaint was examined by the plaintiff's side, he has not spoken to about anyone of the facts in the plaint. 13. The plaintiff has examined P.W. 2 one Mr. Boota Singh Dhillon, the Finance Manager, who was based at Dubai and who was working with different subsidiaries of the plaintiff-company. According to P.W. 2, the plaintiff-company has executed the deed of power of attorney under Ex. P-1 in favour of Virmani P.W. 1 and it was signed by R.A. Steele, the Assistant Secretary of the plaintiff-company. She has signed in the last page of Ex. P-1. The signature in the last page of Ex. P-1 has been notarized by a notary public in Sydney, Australia because R.A. Steele was working in Sydney, Australia for the plaintiff-company. R.A. Steele was authorized to sign on behalf of the plaintiff and Ex. P-1A is the certificate given by the notary public while Ex. P-1B is the certificate issued by Almaza Shenouda of the department of Foreign Affairs and Trade identifying the signature of N.B. Pappas. Ex. P-1C is the attestation by the Vice Consul, Consulate General of India, Sydney. A perusal of Ex. P-1 would clearly reveal that by the said document Amar Raj Raj Lall, Anuradha Salhotra, Chamupati Kumar Virmani and Chander Mohan Lall were appointed as Attorneys jointly and severally in the name and on behalf of the plaintiff-company and it was executed by R.A. Steele, the Assistant Secretary, Mars Incorporated. As seen from the document, she was only an Assistant Secretary of the plaintiff-company on 22.6.1993 when Ex. P-1 was executed by her. No material is placed by the plaintiff to show that the said Assistant Secretary R.A. Steele was authorized to sign on behalf of the plaintiff-company. It is contended by the plaintiff's side that the suit was filed in 1995 by the duly constituted attorney of the plaintiff viz., P.W. 1 under Ex. P-1 deed duly executed and attested known to law and especially under the provisions of Power of Attorney Act. P.W. 1 through whom Ex. P-1 was marked has deposed that the plaintiff-company is incorporated in U.S.A., but Ex. P-1 was sworn to by a notary public in Australia and he has also added that he could not explain how Ex. P-1 deed duly executed and attested known to law and especially under the provisions of Power of Attorney Act. P.W. 1 through whom Ex. P-1 was marked has deposed that the plaintiff-company is incorporated in U.S.A., but Ex. P-1 was sworn to by a notary public in Australia and he has also added that he could not explain how Ex. P-1 though executed by a company in U.S.A. was sworn to by a notary in Australia. It is pertinent to point out that the witness has also added that he did not know whether there was any board resolution authorizing R.A. Steele to execute the power of attorney. Curious enough that P.W. 1 has stated that in the year 1995, he gave instructions to the counsel to prepare the plaint, but without knowing whether the power under Ex. P-1 was revoked or not. Thus it would be clear that the plaintiff has not proved that the Assistant Secretary R.A. Steele was duly authorized by the plaintiff-company to execute a power deed as found under Ex. P-1. In the absence of the same, it cannot be held that Ex. P-1 was a valid one in the eye of law. The plaintiff is unable to explain how Ex. P-1 was sworn to by a notary in Australia while the plaintiff-company is incorporated in U.S.A. It is contended by the plaintiff's side that P.W. 1 was examined for the limited purpose of marking the document under Ex. P-1 and identifying him as the power agent who filed the suit. Through Ex. P-1 document is marked through P.W. 1, he is unable to say that the said power was in force at the time of the institution of the suit. While P.W. 1 has not spoken any one of the facts or allegations found in the plaint, P.W. 2 Mr. Dhillon, Finance Manager based at Dubai has been examined. From his evidence, as narrated above, it would be clear that he is not the competent witness to speak anything about either Ex. P-1 document or it was in force at the time of the institution of the suit. It is surprising to note that he has sworn to an affidavit in Dubai in December, 1999 to summon P.W. 1 Virmani under Application No. 123 of 2000. P-1 document or it was in force at the time of the institution of the suit. It is surprising to note that he has sworn to an affidavit in Dubai in December, 1999 to summon P.W. 1 Virmani under Application No. 123 of 2000. Though it is contended by the plaintiff's side that the power that was executed in favour of Virmani was cancelled in 1999, there is no document of revocation or cancellation placed before the Court. As stated above, the suit was filed by P.W. 1 stating that he was the constituted attorney of the plaintiff and duly authorized to sign and verify and plaint. Only on that undertaking the suit was taken on file, and he has filed an affidavit in that regard also. But he is not aware whether the power executed in his favour was in force at the time of the institution of the suit and he has not spoken to anyone of the facts found in the plaint. Thus, it would be crystal clear that he does not know whether Ex. P-1 document is in force or not. P.W. 2 is not a competent person to speak about Ex. P-1 document since he was neither connected to nor concerned with the document. 14. As stated above, Ex. P-10 document was not an outcome of the resolution of the Board of Directors of the plaintiff-company. Admittedly the said document was executed by one Assistant Secretary R.A. Steele. No resolution of the Board of Directors authorizing R.A. Steele to execute the power of attorney in favour of P.W. 1 is placed by the plaintiff's side. The plaintiff company is incorporated in U.S.A. and Ex. P-1 was sworn in by a notary public in Australia. Without any hesitation it has to be stated that Ex. P-10 document is not properly executed or valid document in the eye of law. The learned counsel appearing for the plaintiff would urge that it was a matter of internal management of the company and at the time of the institution of the suit, P.W. 1 has a valid power under Ex. P-1 document. This contention cannot be accepted. P-10 document is not properly executed or valid document in the eye of law. The learned counsel appearing for the plaintiff would urge that it was a matter of internal management of the company and at the time of the institution of the suit, P.W. 1 has a valid power under Ex. P-1 document. This contention cannot be accepted. The Court is of the view that in the absence of the resolution of the Board of Directors empowering P.W. 1 directly or giving necessary powers to the Assistant Secretary R.A. Steele to execute such a power, the suit filed by P.W. 1 was not competent. The initial infirmity what is noticed by the Court with regard to the maintainability of the suit was incurable.