Judgment S.P. Pathak, J.-This is a defendants appeal against the Judgment & decree dated 13.09.2005 passed by Addl. District & Sessions Judge (Fast Track), Rajsamand in Civil Original Suit No. 100/2004 -Miraj Products Pvt. Ltd. vs. Ashish Tea Company & Ors., allowing the suit filed by respondent-plaintiff for declaration and permanent injunction. 2. The facts leading to this case are that respondent-plaintiff filed a suit for permanent injunction, infringement of copyright, passing off trademark and goodwill and rendition of accounts in the trial Court with the averments that it is a limited company registered under the provisions of the Companies Act, 1956 having its registered office at Uper Ki Oden, Nathdwara, District Rajsamand (Rajasthan) and is entitled to the exclusive use of trademark Miraj for the goods manufactured by it and, therefore, the defendants be restrained from using the said trademark. 3. The case set up by the plaintiff in the plaint was to the effect that plaintiff is engaged in the business of manufacturing and marketing tobacco and tea and proposed to enter in consumer eatable goods which are already specifically stated in the Memorandum of Association of the Company in the main objects and enumerated in Clause 2 & 3. It has further been stated that the plaintiff is the largest producer of lime mixed chewing tobacco in India and the plaintiff has its own production facilities. It is stated that the plaintiff started its business in the year 1987 and its trade name Miraj has become quite famous for the reason that it has been given wide publicity at the national level and plaintiff is selling its goods all over the country in each and every State and each and every district. It has also been stated that plaintiff is well known for its innovative techniques and is also committed to quality conscious upgradation of its products and has research development facilities also. The business is stated to be in crores of rupees. It has also been stated that plaintiff is well known for its innovative techniques and is also committed to quality conscious upgradation of its products and has research development facilities also. The business is stated to be in crores of rupees. It has also been stated that at the initial stage the business was started by Smt. Sushila Paliwal, a lady entrepreneur, who used to trade under the name and style of Miraj Zarda Udhyog with the help of her husband and in view of the long using monogram of Miraj (artwork of fighter plane), which was applied for registration on 10.08.1999 and was registered on 28.05.2001 under the Copyright Act, its goodwill is attached to the trademark and trade name Miraj. It has also been stated in the plaint that since 1987 crores of rupees have been spent on advertising and for promoting sales activities in India and the Excise Department has also approved the lable of the plaintiff under the trademark/trade name Miraj from time to time. It has been stated in Para 13 of the plaint that in order to obtain statutory protection to the mark/trade name/goodwill under the title Miraj, the plaintiff has obtained registration for its artistic work under the title Miraj and same has been accepted by the Registrar of Trade Marks as well as by the Registrar of Copyrights. The registration Number of the copyrights have been stated to be as A-59494/2001 and A/56654/99. In Para 14 of the plaint it has been stated that as the plaintiff s trademark/ trade name/ goodwill/ copyright under the title Miraj has huge market reputation and goodwill in the competitive market, therefore, the plaintiff preferred to take defensive registration to avoid the duplication/infringement/ passing off its goodwill/ trademark/ trade name etc. In Para 14 of the plaint it has been stated that as the plaintiff s trademark/ trade name/ goodwill/ copyright under the title Miraj has huge market reputation and goodwill in the competitive market, therefore, the plaintiff preferred to take defensive registration to avoid the duplication/infringement/ passing off its goodwill/ trademark/ trade name etc. It is also stated that the plaintiff applied in respect of the goods in other classes also on 30.10.1998 as contained in Schedule IV of the Trade and Merchandise Marks Act, 1958 (hereinafter to be referred as the Act) and in the month of July 2002 when it came to the notice of the plaintiff that defendant No. 1 Ashish Tea Company was doing business of manufacturing and marketing tea under the identical and/or deceptively similar to the registered trademark/trade name of plaintiff i.e. Miraj, a notice was sent on 10th July 2002 to the defendant not to use the copyright trademark name of the plaintiff . It is further stated that the defendant while replying to the notice on 25.07.2002 did not deny specifically about the goodwill earned by the plaintiff in the business but stated that the plaintiff deals in chewing tobacco business whereas the defendant deals in tea business, therefore, there is no chance of any confusion in the minds of customers. It is said that when plaintiff made enquiries, it came to its notice that the defendant applied for the compyright on 19.08.2002 obtained copyright certificate on 30.06.2003 in relation to the trademark of plaintiff and its wrapper and on coming to know about this, objections were filed before the Registrar of Copyrights. It is also stated that the malafides of the defendant is evident from the fact that defendant has adopted the trademark/trade name of the plaintiff Miraj by scanning exactly the plaintiff s lable and similarly by using the trademark/trade name Miraj, which is identical to the mark of plaintiff , in a fraudulent manner taking advantage of the goodwill earned by the plaintiff . It is also stated that the defendant had knowledge before starting selling their tea under the title Miraj in wrappers of the same colour combination, which is being used by the plaintiff for its products since long. It is also stated that the defendant had knowledge before starting selling their tea under the title Miraj in wrappers of the same colour combination, which is being used by the plaintiff for its products since long. It was also stated in the plaint that defendant No. 2 is the selling agent of goods manufactured by defendant No. 1, therefore, he was also liable to be restrained by a perpetual injunction not to sell the goods manufactured by defendant No. 1 which are in the trade name of Miraj. It was also stated that on account of defendants using the trademark of the plaintiff , the reputation of the plaintiff is being tarnished and the business is being put to loss. It was prayed that by issuing permanent injunction the defendants, their servants, agents stockist and all other persons acting on their behalf be restrained from using trademark/trade name/ copyright under the title Miraj in respect of tea or any other allied and cognate goods or any other trademark/marks/copyright which are identical with and/or deceptively similar to the plaintiff s trademark/trade name/copyright under the title Miraj and also restrain them from doing anything amounting to passing off their goods as the goods of the plaintiff . A prayer was also made regarding rendition of accounts. 4. Defendant No. 1 contested the suit inter-alia denying the entity of the plaintiff -respondent as a limited company. It was stated that before the start of business every enquiry was made and at the time of registration of trademark in relation to manufacturing of tea under the trade name Miraj, it was informed by the Trademark Registry that there existed no such registration in the trade name of Miraj for manufacturing tea. An objection was taken that the suit filed by the Marketing Manager of the plaintiff company under the provisions of Section 105 was not maintainable. It was emphatically contended that the plaintiff never did the business of tea but the business of the plaintiff is of tobacco and the defendant is doing business in manufacturing and marketing tea with the brand name Miraj. It was emphatically contended that the plaintiff never did the business of tea but the business of the plaintiff is of tobacco and the defendant is doing business in manufacturing and marketing tea with the brand name Miraj. It was further stated that under the provisions of Section 8 of the Act to decide the question, whether the registration of the trademark for one class is applicable for all the other things, lies with the Registrar concerned and it has been decided by the Registrar finally that under Class 30 neither any application by the plaintiff has been filed earlier, nor pending or registered and the Registrar after an enquiry under Section 45(1) has issued a certificate to the defendant on 08.04.2002 that no application for registration of the trademark Miraj or the sign of Miraj was filed and no such trademark was registered. It was contended in the written statement that there is prohibition in registration of identical goods but in the present matter the goods are different and under Section 12 the plaintiff has got no monopoly on the trademark as such neither the suit is maintainable nor injunction can be issued against the defendant. It was also contended that reply to the notice of plaintiff was given immediately and after passing of six months from that, the suit was not maintainable. The defendant also stated that as there was no application pending of the plaintiff for registration under Class 30, no cause of action arose to the plaintiff and no such averment with regard to the registration under Class 30 was made by the plaintiff and plaintiff has also not taken the plea of first user of the trademark whereas the defendant in a suit filed under the Trademark Act before the Court at Pali has taken such a plea and the decision in that suit would be a basis for deciding the present suit while any decision rendered in the suit at Rajsamand would make the suit filed by defendant at Pali null and void so till disposal of that suit the proceedings in the suit be stayed. 5. The Defendant No. 2 in his written statement stated that he deals in consumer goods and is only a trader, who earns by selling various goods. 5. The Defendant No. 2 in his written statement stated that he deals in consumer goods and is only a trader, who earns by selling various goods. It was the stand of the defendant that as he is not manufacturing tea, he has done nothing to tarnish the goodwill of the plaintiff but he had simply purchased the tea for selling from M/s. Ashok Brand Tea Company, which is having branch at Sadar Bazar, Sumerpur and Head Office at Sheoganj and prayed for dismissal of the suit. 6. Thereafter, the plaintiff also filed rejoinder and the learned trial Court on the basis of the pleadings, framed issues to the following effect:-1.Whether the defendants have no right to sell and distribute their tea with the plaintiff s trade and corporate name Miraj and registered artwork rocket-plane picture like packing by Miraj name? 2.Whether the defendants want to take undue benefit of the goodwill of the plaintiff ? 3.Whether the suit filed by the plaintiff is in contravention of the provisions of Order 29 and Section 105 of the Trademark? 4.Whether the court has no jurisdiction to hear the suit filed against defendants? 5.Whether the suit filed by the plaintiff is not maintainable on account of the trademark of plaintiff being not registered and there being no contravention of Class 30. 6.Whether the manufacturing of the plaintiff is of tobacco and that of the defendant is different one i.e. manufacturing of tea, hence the suit is not maintainable? 7.Whether the defendant has filed a suit in the District Court at Pali and what is its effect of the present suit? 8.Whether the suit before District Court, Pali was filed by the defendant after filing of the present suit and what is the effect on the registration obtained from Registrar, Trademarks on the present suit? 9. Relief ?. 7. In support of its case, the plaintiff-respondent examined PW. 1 Sushil Paliwal and PW. 2 Prakash Purohit. The defendant-appellants on their behalf produced DW. 1 Suresh Kumar and DW. 2 Bagaram. Several documents were filed during the course of trial by the parties. 9. Relief ?. 7. In support of its case, the plaintiff-respondent examined PW. 1 Sushil Paliwal and PW. 2 Prakash Purohit. The defendant-appellants on their behalf produced DW. 1 Suresh Kumar and DW. 2 Bagaram. Several documents were filed during the course of trial by the parties. A preliminary issue was framed by the trial Court on 13.02.2003 to the effect that whether in view of Para No. 24, 18 and paras 2 & 3 of the additional pleas of the written statement filed by defendant No. 1 the Court had no jurisdiction to hear the suit and after hearing the parties the learned trial Court vide its order dated 04.04.2003 found that the suit was maintainable and the Court had jurisdiction to try it. The evidence of the parties was recorded on the basis of affidavits filed by them and their cross-examination was done on the affidavits filed in the Court. The learned trial Court decided issue No. 1, 2, 5 & 6 together and found that the plaintiff company started its business in the year 1987 and it was got registered in the year 1996. It was also found that the plaintiff was doing business with the trade name Miraj using the picture of a fighter plane whereas the defendant started its business in the year 2001 under the trade name Miraj which was being used by the plaintiff prior to that and earlier the defendant was doing his business of manufacturing and marketing tea in the brand name Chetak. A note of surprise was made by the learned trial Court as to what compelled the defendant to suddenly adopt the trade name Miraj for its products and it found that the evidence of the plaintiff led in the case clearly shows that the entire business run by the plaintiff is in the trade name Miraj and it opined that if this trade name is used by someone other in the market then it is bound to give an impression in the minds of the customers that the product which they are purchasing is that of the plaintiff and therefore it is a fraud on the customers. It was also held that the copyright registration of the defendant under the Copyright Act was received only on 08.04.2002, therefore after the registration at best it could be presumed that defendant was entitled to use the trademark whereas the plaintiff was using the trade name and trademark Miraj since 1987 and had applied for its registration in the year 1998 which was notified also and as that was prior in time so the plaintiff was entitled to be considered the prior user of trade name Miraj with the trademark of fighter-plane device. On the basis of evidence, it was found proved that under the Copyright Act plaintiff received the certificate of the artistic work like plane on 25.08.2001, which was prior in time than the defendant and the plaintiff has the right to use the trade name Miraj and its monogram exclusively and no other person. While deciding issue No. 4 the trial Court also compared the artistic work of the device used in the trademarks i.e. the fighter planes of the plaintiff and defendant and found that the artistic design of the fight plane Miraj being used by the defendant and the plaintiff are similar in nature and deceptive. The other issues infact having not been pressed, the trial Court rejected the prayer regarding rendition of accounts. The trial Court, thus, decreed the suit of the plaintiff by issuing a perpetual injunction in favour of the plaintiff and against the defendant that the defendants shall not use the trademark/ trade name /goodwill/copyright of the plaintiff nor will permit anybody else on their behalf . Hence, this appeal has been filed. 8. Heard learned Counsel for the parties and perused the material on record. 9. The points which require consideration in the present matter are:-(1)Whether the learned trial Court has correctly disposed of Issue No. 1, 2, 5 & 6? (2)Whether the plaintiff was able to prove his case and was entitled for issuance of perpetual injunction? (3)Whether the Judgment and decree passed by the trial Court requires any interference by this Court? Point No. 1: .10. (2)Whether the plaintiff was able to prove his case and was entitled for issuance of perpetual injunction? (3)Whether the Judgment and decree passed by the trial Court requires any interference by this Court? Point No. 1: .10. It has been contended by the learned Counsel for the appellant-defendants that basically the present case is not of infringement of trade name but is a case of passing off since the plaintiffs and defendants both were not having registered trademark in respect of tea product, therefore it would appear that the trial Court proceeded on wrong assumption in the matter and further as the business of .the plaintiff was only of chewing tobacco and he cannot claim exclusive right on the trade name Miraj or the artistic work of a fighter plane device. It has also been submitted that the trial Court has wrongly drawn the conclusions without there being any proof that the product coming from the plaintiff had attained so much popularity and it became distinctive. According to the learned Counsel, the main business of the plaintiff is of chewing tobacco whereas the business of the defendant-appellant is that of tea and since the plaintiff was not dealing in tea business from 1987, therefore, it is wrong to presume that the customers will be confused or deceived by using Miraj name or the artistic work of fighter plane on the wrappers of tea. The learned Counsel submits that as the plaintiff was not dealing in tea prior in time then to issue perpetual injunction in favour of the plaintiff is not in accordance with law. He also submits that plaintiff s registration was in relation to Item No. 34 i.e. tobacco, Smokers articles, matches etc., whereas the defendant is engaged in manufacture and marketing of tea which comes under Item No. 30 of Schedule IV. According to the learned Counsel, these two are different type of businesses and therefore to conclude that by using name Miraj or the artistic work of a fighter plane by the defendant will in any way put the plaintiff to harm is not liable to be accepted. The learned Counsel also submitted that the word “Miraj is not an invented or coined word of the plaintiff but is a name given to the fighter plane of France. The learned Counsel also submitted that the word “Miraj is not an invented or coined word of the plaintiff but is a name given to the fighter plane of France. The learned Counsel further submits that it is a pure and simple dictionary word which can be used by anybody and the plaintiff cannot claim monopoly on the same unless the plaintiff shows that the trademark has become distinctive in use, which has not been done. Learned Counsel in support of his submissions has placed reliance on Vinayak Tea Co. vs. Kothari Products Ltd., 2002 (25) PTC 721 (DB) (All), Kedar Nath Gupta vs. J.K. Organization, 1998 PTC 189 (Delhi), S.M. Dyechem Ltd. vs. Cadbury (India) Ltd., AIR 2000 SC 2114 , Cadila Healthcare Limited vs. Cadila Pharmaceuticals Limited, AIR 2001 SC 1952 , Thomas Bear & Sons (India) vs. Prayag Narain, AIR 1935 Allahabad 7, Sony Kaushiki Kaisa vs. Shamrao Maskar, AIR 1985 Bombay 327, Vishnu Das Trading vs. Vazir Sultan Tobacco, AIR 1996 SC 2275 , Hoffmann-la Roche & Co. Ltd. vs. Geoffrey Manner & Co. Pvt. Ltd., AIR 1970 SC 2062 and R.G. Anand vs. M/s. Delux Films, 1978 (4) SCC 118 SC. .11. On the other hand, the learned Counsel for respondent-plaintiff submitted that it is a case where the trial Court after full trial has granted injunction and decreed the suit in favour of the plaintiff on the basis of appreciation of evidence led by the parties, therefore, no interference is required by this Court in this matter for the reason that findings of the trial Court are to the effect that the plaintiff was prior user of the trade name Miraj with the trademark of fighter plane and further on account of earning goodwill in the market and having spent crores of rupees on advertisement and on other things in promoting sales of which a detailed description has been made in the written statement. The Learned Counsel submits that there was no reason for the defendant to have adopted the trade name which was being used by the plaintiff as the brand used by the defendant was Chetak but suddenly in the year 2002 the defendant started selling tea under the Miraj name with the artistic device of fighter plane and started gaining benefit out of that by enormous increase in sales on account of the goodwill earned by the plaintiff . The learned Counsel submits that the plaintiff s witnesses have clearly proved this aspect of the matter by their evidence. Learned Counsel further submits that the Assistant Registrar of Trademarks at Ahmedabad has passed an order on 30.08.2005 to the effect that defendants objection in relation to the registration of the trademark Miraj applied by the plaintiff having been withdrawn on 24.08.2005, therefore, the objections put against the registration of trademark Miraj in the name of plaintiff in relation to Item No. 30 of Schedule IV stands abated. Learned Counsel submits that no such review etc. was filed against the above order. Learned Counsel submits that the application moved by the plaintiff under clause 30 for production and sale of tea has been accepted for registration. The contention of the learned Counsel is that in view of presently no objection pending of the defendant in relation to registration under Class 30 of Schedule IV i.e. tea, coffee etc., the defendant has no case whatsoever in his favour as the defendant itself has withdrawn the objection. Learned Counsel for respondent in support of his submission has placed reliance on Ruston vs. Engineering Co., AIR 1970 SC 1649 , Banga Watch Co. vs. M/s. N.V. Phillips, AIR 1983 P&H 418 , Bata India Limited vs. Pyare Lal & Co., AIR 1985 Allahabad 242 and Mahendra and Mahendra Paper Mills Ltd. vs. Mahindra and Mahindra Limited, AIR 2002 SC 117 . .12. I have considered the submissions made before me. 13. Before proceeding further, it shall be appropriate to go through the principles laid down by the Honble Apex Court and other High Courts in relation to the matters relating to passing off trademark and infringement of use of earned trade name, use of earned goodwill and infringement of copyright etc. Authorities Referred To By The Appellants: 14. In Vinayak Tea Co. Authorities Referred To By The Appellants: 14. In Vinayak Tea Co. vs. Kothari Products Ltd., 2002 (25) PTC 721 (DB) (All), the Division Bench of Allahabad High Court, while considering the matter of injunction, observed that the tea sold by the appellant and betel and tobacco preparations sold by the respondent were different commodities and some of the customers who purchased these goods may be common but the sale of tea in comparison to the goods prepared by the respondent was wider as the respondent is advertising in newspapers, TV etc in respect of its own goods specifically and it has to be proved by it that inspite of such advertisement there is confusion in the mind of the customers that the goods sold by the appellant are that of the respondent. In this case, the defendant preferred appeal against the order passed by the Court below restraining the appellant from infringing the plaintiff’s registered trademark and also using such trademark. Exparte injunction was granted in this case, objections were filed and when the matter reached before the High Court, it was found that in relation to disputed aspect of the matter, evidence was required to be produced in the case, therefore, injunction granted by the trial Court was vacated and the matter was remitted back to the trial Court to proceed in the matter according to law. It was also observed that at the initial stage it would be too harsh to restrain the defendant by an injunction order as this would cause great inconvenience to the defendant. 15. In Kedar Nath Gupta vs. J.K. Organization, 1998 PTC 189 (Delhi), the facts were that the appellant therein applied for registration of trademark ‘JAY KAY’ in respect of locks, bolts, nuts, screws etc in Class 6 of the IV Schedule of the Trade and Merchandise Marks Rules, 1959. J.K. Organization opposed the application on the ground that letters ‘J.K.’ were registered in their name. The Registrar of Trademarks refused the registration and on an appeal to the High Court it was held that confusion and deception must relate to the goods and not alone to the trademark. .16. J.K. Organization opposed the application on the ground that letters ‘J.K.’ were registered in their name. The Registrar of Trademarks refused the registration and on an appeal to the High Court it was held that confusion and deception must relate to the goods and not alone to the trademark. .16. In S.M. Dyechem Ltd. vs. Cadbury (India) Ltd., AIR 2000 SC 2114 , the Hon’ble Apex Court explained the difference between the words ‘to deceive’ and ‘to cause confusion’ while relying on the observations made by Lord Denning in Parkar Knoll vs. Knoll International, 1962 RPC 265 (HL) which read as under:- .“Looking to the natural meaning of the words, I would make two observations:-First, the offending mark must ‘so nearly resemble’ the registered mark as to be ‘likely’ to deceive or cause confusion. It is not necessary that it should be intended to deceive or intended to cause confusion. You do not have to look into the mind of the user to see what he intended. It is its probable effect on ordinary people, which you have to consider. No doubt, if you find that he did not intend to deceive or cause confusion, you will give him credit for success in his intentions. You will not hesitate to hold that his use of it is likely to deceive or cause confusion. But if he had no such intention and was completely honest, then you will look carefully to see whether it is likely to deceive or cause confusion before you find him guilty of infringement. Secondly, ‘to deceive’ is one thing. To cause ‘confusion’ is another. The difference is this: when you deceive a man, you tell him a lie. You make a false representation to him and thereby cause him to believe a thing to be true which is false. You may not do it knowingly, or intentionally but still you do it, and so you deceive him. But you may cause confusion without telling him a lie at all, and without making any false representation to him. You make a false representation to him and thereby cause him to believe a thing to be true which is false. You may not do it knowingly, or intentionally but still you do it, and so you deceive him. But you may cause confusion without telling him a lie at all, and without making any false representation to him. You may indeed tell him the truth the whole truth and nothing but the truth but still you may cause confusion in his mind, not by any fault of yours, but because he has not the knowledge or ability to distinguish it from other pieces of truth known to him or because he may not even take the trouble to do so.” .17. In Cadila Healthcare Limited vs. Cadila Pharmaceuticals Limited, AIR 2001 SC 1952 , the Hon’ble Apex Court stated that broadly in an action for passing off on the basis of unregistered trademark for deciding the question of deceptive similarity, following factors are to be considered generally:- 7. The nature of the marks i.e. whether the marks are word marks or label marks or compositive marks i.e. both words and labour works; 8. The degree of resemblances between the marks, phonetically similar and hence similar in idea; 9. The nature of goods in respect of which they are used as trade marks; 10. The similarity in the nature, character and performance of the goods of the rival traders; .11. The class of purchasers who are likely to buy the goods bearing the marks they require, on .their education and intelligence and a degree of care they are likely to exercise in purchasing and/or using the goods; 12. The mode of purchasing the goods or placing orders for the goods; and 13. Any other surrounding circumstances which may be relevant in the extent of dissimilarity between the competing marks. The Court further said that weightage to be given to the aforesaid factors depending upon the facts of each case and the same weightage cannot be given to each factor in every case. 18. Any other surrounding circumstances which may be relevant in the extent of dissimilarity between the competing marks. The Court further said that weightage to be given to the aforesaid factors depending upon the facts of each case and the same weightage cannot be given to each factor in every case. 18. In Thomas Bear & Sons (India) vs. Prayag Narain, AIR 1935 Allahabad 7, it was held that the marks used by the defendant on the packets and tins of chewing tobacco is not a colourable imitation of the plaintiff’s trade mark, the resemblance between the two marks that both bear the symbol of elephant was itself not sufficient as there was no other similarity between the two marks. The Court observed that it was further to be proved by the plaintiff that the defendant is likely to deceive purchasers in respect of goods bearing the plaintiff’s mark. .19. In Sony Kabushiki Kaishar Vs. Shamrao Maskar, AIR 1985 Bombay 327, the petitioner had applied for registration of ‘Sony’ mark for its nail polish. The objection of respondent was that they were using the word ‘Sony’ prior in time and the trademark in relation to electronic goods achieved worldwide publicity. In the facts and circumstances, the Court observed:- .“It is claimed that two band transistors under the mark “SONY” are easily available in Bombay and even assuming it to be so, it cannot be overlooked that the trade channel for sale of the two items are entirely different. The electronic goods and nail polish are not sold under one roof and there will not be any confusion in the mind of customer that both the items come from the petitioners house in Japan. There is also no common field of activity in course of trade of the two items, and the classes of customers who would purchase the two items are distinct and different.” .20. In Vishnu Das Trading vs. Vazir Sultan Tobacco, AIR 1996 SC 2275 , the respondent manufacturer of ‘Charminar’ cigarettes, who was manufacturing the cigarettes under the registered trademark, opposed the registration of appellant’s application for getting it registered under the same trademark viz., Charminar for Zarda and bottles of Kiwam. In Vishnu Das Trading vs. Vazir Sultan Tobacco, AIR 1996 SC 2275 , the respondent manufacturer of ‘Charminar’ cigarettes, who was manufacturing the cigarettes under the registered trademark, opposed the registration of appellant’s application for getting it registered under the same trademark viz., Charminar for Zarda and bottles of Kiwam. The Hon’ble Apex Court observed:- .“It is also not disputed that the expression “Charminar” is not an inventive word which is the condition precedent for defensive registration under Section 47 of the Trade Marks Act (Section 38 of the Trade Marks Act of 1940). No evidence has been led by the respondent company that the respondent-company had really intended or even now intends to manufacture any other product of tobacco other than cigarettes. “ 21. In Hoffmann-la Roche & Co. Ltd. vs. Geoffrey Manner & Co. Pvt. Ltd., AIR 1970 SC 2062 , the Hon’ble Apex Court in the facts and circumstances of the case that before the High Court the Counsel for the respondent made a statement that the respondent was willing for a direction of the Court in exercise of its power under Section 56(2) that the Registrar should limit the respondent’s trademark ‘Dropovit’ to medicinal and pharmaceutical preparations and substances containing principally vitamins and requested that the appeal be decided on that basis, the Court held that the question of deceptive similarity must be decided on the basis of the class of goods