JUDGMENT I.A. Nos. 5464-65/2006 S. Ravindra Bhat, J.-The present order will dispose of two applications preferred by the plaintiffs who have sued the defendants for infringement of their trade mark in "PYRAMID VASTU. The plaintiffs suit alleges copyright infringement by the defendant. 2. The first plaintiff claims to be inventor and long user of the trade mark PYRAMID VASTU registered on 21.8.2003 in Class 9, in respect of V ASTU DEFECT RECTIFICATION INSTRUMENTS. Reliance is placed upon a copy of the registration certificate issued by the Trade marks Registry on 5.10.2005. Similarly the word "PYRAMID V ASTU" was registered by the plaintiff as manufacturer in Class 16, concerning PAPER AND PAPER ARTICLES PRINTED MATIER, NEWSPAPER AND PERIODICALS BOOKS AND BOOK BINDING MATERIAL, PHOTOGRAPH, etc on 22.11.2005 w.e.f. 21.8.2003. It is also claimed that the second plaintiff is a proprietorship firm of the first plaintiff and permissive user of the said mark; it is also registered in Class 16 in regard to VASTU DEFECT RECTIFICATION ARTICLES AND SHAPES MADE OF PLASTIC. The plaintiffs advert to PYRAMID VASTU being registered by Pandit R.K. Sharma as a literary work in the copyright office of the Central Government and rely upon a certificate dated 4.2.2004. It is claimed that the said Pandit Sharma is author of the work PYRAMID VASTU published for the first time in 1995 in India and that he has assigned the rights in respect of it to the first and second plaintiffs. 3. The plaintiff alleges that Pandit RK. Sharma, the third plaintiff is a renowned remedial astrologer, gemologist and Vastu expert, practising in consultancy for astrology and Vastu; he also the Editor-in-Chief of the famous magazine "THE ETERNAL SOLUTIONS" allegedly popular with Vastu readership. It is claimed that the second plaintiff is active since 198384 in the field of publication of Vastu Defect Rectification and Remedial Astrology /Gemology. The second plaintiff has published a famous book entitled "The Science of Balance - Pyramid V astu, Sri Yantra, Man tras anc Gem Therapy" authored by Pandit R.K. Sharma in 2002. 4. The plaintiffs rely on books, periodicals, products and services am allege that they have amassed vast goodwill and popularity amongs members of general public in relation to the mark "PYRAMID VASTU" for items set out in Class 9 and Class 16 of the Trade mark Rules 2002. 4. The plaintiffs rely on books, periodicals, products and services am allege that they have amassed vast goodwill and popularity amongs members of general public in relation to the mark "PYRAMID VASTU" for items set out in Class 9 and Class 16 of the Trade mark Rules 2002. The) further allege that for the first time in January /February, 2006, the third fourth and fifth defendants were involved in publication of articles, book and advertisements for falsifying the plaintiffs trade mark without their consent. It is claimed that the said defendants had deliberately used the word trade mark "PYRAMID VASTU" for oblique reasons. The plaintiffs rights in the said mark have been infringed. The plaintiffs allege that the defendants have copied their idea on account of the increasing popular it) of their books and periodicals. The plaintiffs allege that the defendants action in marketing the book titled "Jiten Book of Pyramid for Feng Shu and Vastu" prominently highlighting the word "PYRAMID VASTU" is with a view to deceive and confuse members of the public into believing that it is the plaintiffs product. 5. Mr. V. Shekhar, Senior Counsel relied upon the averments in the plaint and submitted that the combination of the expression "PYRAMID & VASTU", was conceived by the plaintiffs long ago in 1983. They are the registered owners of Trade Mark and also holders of its copyrights. HE relied upon several publications including the book/pamphlet entitlec "SCIENCE OF BALANCE" authored by the third plaintiff and other materials such as the book "Science of balance" for which copyright is claimed from 2002 by the third plaintiff; extracts of the magazine "The ETERNAL SOLUTIONS" both of April and May, 2006 containing excerpts of interviews with the plaintiff concerning the use of past Vastu and Pyramid and also describing his book. Extracts from the magazine "Life Plus" (April-June, 2003), Inner Strength (May-June, 2002) and Training and Management (August 2002) have been relied upon for a similar purpose. 6. Learned Counsel contended that there is sufficient material and averments on the record as well as the documents to disclose existence of a strong prima facie case in the plaintiffs favour. He relied upon the judgments of this Court reported as Glaxo SmithKline Pharmaceuticals Ltd. & Anr. 6. Learned Counsel contended that there is sufficient material and averments on the record as well as the documents to disclose existence of a strong prima facie case in the plaintiffs favour. He relied upon the judgments of this Court reported as Glaxo SmithKline Pharmaceuticals Ltd. & Anr. v. Naval Kishore Goyal & Ors., 2004 (29) PTC 421 (Del) to say tha1 the Court should reject the defence that the words VASTU and PYRAMID are public juris since the applicants use is of long standing and what is more important is, the own the trade mark. Counsel contended by placing reliance on the said judgment that the defendants use of the said products, involves too much coincidence. Counsel also contended that this Cour1 should not be misled by use of "Feng Shui" or any other term in an insignificant manner, by the defendants since the predominant intention is to deceive members of the public and confuse them into believing that the defendants product belong to the plaintiffs. 7. Learned Counsel also relied upon the judgment of the Supreme Court in N.R. Dongre & Ors. v. Whirlpool Corporation & Anr., III (1996) CL T 293 (SC)=1996 (7) JT SC 555, and submitted that in a case of infringement like the present one where clear evidence is shown, injunction should be granted and that its refusal would lead to irrepairable hardship to the plaintiff. 8. Counsel for the defendant, on the other hand, relied upon averments in the written statement and reply to the application. He submitted that the defendants are prior user of the words PYRAMID & VASTU. It is claimed that the defendants started manufacturing Pyramids in the name of "Mini Power Tools" for health and Vastu in 1973 for which purpose the third defendant was issued a certificate of his having completed a Specialized Managerial Training Course in Financial Management and Cost Control in 1976. Counsel also relied upon the averments to say that by 1981 three products designed by the defendants, namely, Mini Micro Pyramids, Pyramid Vastu Top and Pyramid Chips had become popular. The defendants also rely upon a report published and presented to World Health Organization Conference in 1995 by the fourth defendant. Strong reliance is placed upon a publication by the fifth defendant "GROW RICH AND HEALTHY - PYRAMID YANTRA, A STEP BY STEP GUIDE" in 1997. The defendants also rely upon a report published and presented to World Health Organization Conference in 1995 by the fourth defendant. Strong reliance is placed upon a publication by the fifth defendant "GROW RICH AND HEALTHY - PYRAMID YANTRA, A STEP BY STEP GUIDE" in 1997. Counsel for the defendant points out that the materials on record, placed by the plaintiffs themselves show that the earliest in point of time when the use of PYRAMID & VASTU was resorted in conjunction with each other was in 1997 by the defendant was publication of a book "PYRAMID FOR FENG SHUI AND VASTU" in October, 1997. This was followed by second edition in November, 1997 and the book was published again in August, 1998, December, 1999, June, 2000, January, 2000, 1st September, 2001, May, 2003 and was last published in its 9th Edition in August, 2003. 9. Learned Counsel relied upon "PYRAMID YANTRA for Feng Shui and Vastu" which was also published in October, 1997. Further he relied upon the materials placed on record by the plaintiff in the form of extracts of the magazine "Life Positive" April, 2003, March, 2003 and November, 2003 issues to say that the plaintiffs as well as the defendants products and publications were mentioned in the same issues. He also relied upon the January-March, 2003 issue of "Life Positive". to say that the defendants publications and products were also mentioned in that issue besides those of the plaintiff. 10. Learned Counsel submitted that the plaintiff cannot secure any temporary injunction in the present case as the materials on record clearly point to the defendant being the bona fide prior user of the marks. It was contended that even the copyright certificates placed on the record do not claim any rights in respect of artistic work but only seek protection of the literary work in the title. 11. For the purposes of the present discussion, it would be relevant to extract Sections 12, 28 and 34 of the Trade Marks Act. It was contended that even the copyright certificates placed on the record do not claim any rights in respect of artistic work but only seek protection of the literary work in the title. 11. For the purposes of the present discussion, it would be relevant to extract Sections 12, 28 and 34 of the Trade Marks Act. They are as follows: "12.Registration in the case of honest concurrent use, etc.- In the case of honest concurrent use or of other special circumstances which in the opinion of the Registrar, make it proper so to do, he may permit the registration by more than one proprietor of the trade marks which are identical or similar (whether any such trade mark is already registered or not) in respect of the same or similar goods or services, subject to such conditions and limitations, if any, as the Registrar may think fit to impose. 28 Rights conferred by registered.- (1) Subject to the other provisions of this Act, the registration of a trade mark shall, if valid, give to the registered proprietor of the trade mark the exclusive right to the use of the trade mark in relation to the goods or services 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. (2) The exclusive right to the use of a trade mark given under Subsection (1) shall be subject to any conditions and limitations to which the registration is subject. (3) Where two or more persons are registered proprietors of trade marks, which are identical with or nearly resemble each other, the exclusive right to the use of any of those trade marks shall not (except so far as their respective rights are subject to any conditions or limitations entered on the register) be deemed to have been acquired by anyone of those persons as against any other of those persons merely by registration of the trade marks but each of those persons has otherwise the same rights as against other persons ( not being registered users using by way of permitted use) as he would have if he were the sole registered proprietor. 34. 34. Saving for vested rights.- Nothing in this Act shall entitle the proprietor or a registered user of registered trade mark to interfere with or restrain the use by any person of a trade mark identical with or nearly resembling it in relation to goods or services in relation to which that person or a predecessor in title of his has continuously used that trade mark from a date prior- (a) to the use of the first-mentioned trade mark in relation to those goods or services be the proprietor or a predecessor in title of his; or (b) to the date of registration of the first mentioned trade mark in respect of those goods or services in the name of the proprietor of a predecessor in title of his; whichever is the earlier, and the Registrar shall not refuse (on such use being proved), to register the second mentioned trade mark by reason only of the registration of the first mentioned trade mark," 12. There cannot be any doubt that in the case of trade mark infringement, if the plaintiff is able to prima facie establish that the elements of deception, spelt out in Section 29 exist, the Court must proceed to evaluate the necessity for grant of relief on the basis that such infringement exists. This rule is, however, subject to two important exceptions. One is engrafted in Section 28 which that if both the plaintiff and the defendant are owners of registered trade marks, an action of infringement will not follow but their rights inter se for passing off action can be maintained. The other exception is contained in Section 34 which enacts that the proprietor or a registered user of registered trade mark cannot interfere or restrain the use of an identical trade mark by any person with or resembling it in relation to goods for which that person or predecessor in title has continuously used the trade mark from a date prior to the use of the first mentioned made mark in relation to those goods by the proprietor or a predecessor in title. 13. 13. Section 34 was considered in a Division Bench judgment of this Court reported as Shri Swaran Singh Trading as Appliances Emporium v. M/s. Usha Industries (India), New Delhi and Another, AIR 1986 DELHI 343 where it was held that if there is a user prior to the date of registration, then the user can continue. The Court noticed that there are two portions of the Section i.e. 33 (which is now Section 34) - one of which refers to the date of user and the other to the date of registration. The Court also held that the provision seems to give the earlier date as the operative date, i.e., if the user is earlier than the registration that would be the guiding factor. In other words, the use claimed by the defendant should be prior to that of the plaintiff. This provision in the opinion of this Court is to be given primacy since Section 34 is cast in imperative terms; it overrides other provisions of the Act, including Section 29. 14. In the present case, the plaintiff has pleaded user of the word "PYRAMID VASTU" since 1983. It is claimed in the plaint that a book was• published in 1995. The Registration of the trade mark, however, took place in 2005 w.e.f 2003. Likewise, copyright registration was first effected in 2005. The first publication claimed in the copyright certificate issued on 5.5.2004 is in 2003 in India, in relation to the title "The Science of Balance". An additional protection is claimed from 8.2.2006 but for which the user is set up from 1.4.1997. This pertains to Class 42 i.e. PYRAMID VASTU CONSULTANCY. On the other hand, the defendant is relying upon documents which show that the book "PYRAMID for Feng Shui and Vastu" was first published in 1997. Similarly, the book "PYRAMID YANTRA for feng shui and Vastu" was published in October, 1997. The third book PYRAMID YANTRA was published in October, 1997. Later editions of these books were published. Likewise, the defendant has relied upon extracts from magazines "Life Positive" for various months in 2003. In some of those publications the plaintiffs book as well as extracts of interviews of Pandit R.K. Sharma have been published. The third book PYRAMID YANTRA was published in October, 1997. Later editions of these books were published. Likewise, the defendant has relied upon extracts from magazines "Life Positive" for various months in 2003. In some of those publications the plaintiffs book as well as extracts of interviews of Pandit R.K. Sharma have been published. Apart from claiming that the plaintiffs have beer continuously using the word "PYRAMID VASTO" in conjunction with each since 1983 and another allegation that a book was published in 1995, there is no material in support of that claim. The plaintiffs have also not disputed the assertions of the defendant; they have filed extracts of the books published by the defendants which clearly reveal that the first editions were in October, 1997. 15. In the above circumstances, this Court is of the opinion that the use of the words "V ASTU PYRAMID" and marks in conjunction with Feng Shui and Yantra respectively for the various publications of the defendants, do not call for any ad interim order in the present proceedings as the said defendants have prima facie established their prior user of such expressions. In the light of the above findings, no ad interim injunction can be granted; the applications IA Nos. 5464-65/2006 are accordingly dismissed. C5 (05) 810/2006 List before the Court on 5.5.2008. IA dismissed.