Judgment : 1. Ad interim injunction is sought by the applicant/plaintiff to restrain the respondents from manufacturing, distributing, marketing, processing, producing, selling, or offering for sale, stocking, advertising, in any manner directly or indirectly dealing in ready to cook snacks or any food products containing the trade marks YUMMIEZ or any mark which is deceptively similar to the applicants trade mark YUMMIES so as to pass off their products as that of the applicants food products. .2. The applicants have contended that they are engaged in diversified business activities for the last several decades and have earned a very high reputation amongst the trade and public in relation to their products and services. They were one of the first to enter into the ready to fry and ready to eat snack food two decades ago. The first applicant firm adopted the trade mark FRYUMS in early 1980s in respect of ready to fry snacks. The first applicant adopted a trade mark YUMMIES in respect of ready to eat snacks having different flavours. The trade mark FRYUMS and YUMMIES are being used by the second applicant in respect of the ready to fry and ready to eat snacks at least since the year 1987 till date. The YUMMIES snacks are being marketed through a well organized sales network of Dealers/Stockists on an extensive scale. The sale of the applicants also has been steadily growing and it increased manifold since its launch. They have a strong consumer base. They have acquired a very high reputation and valuable goodwill for its ready to eat snacks bearing the trade marks YUMMIES. The annual sales turnover has run into several lakhs of rupees. They have incurred substantial amounts towards sales promotion in various media to popularize the brand YUMMIES for ready to eat snacks. The first applicant applied for and secured registration of the trade mark FRYUMS YUMMIES as far back on 18. 1987. However, since the mark was applied as proposed to be used at that time, the registration was granted with a disclaimer to the word Yummies. Therefore, the applicant laid the suit only for passing off which action is not precluded inspite of the imposition of disclaimer. 1987. However, since the mark was applied as proposed to be used at that time, the registration was granted with a disclaimer to the word Yummies. Therefore, the applicant laid the suit only for passing off which action is not precluded inspite of the imposition of disclaimer. By virtue of long, extensive, and continuous user of the trade mark YUMMIES, it has acquired a secondary meaning and is exclusively identified by the traders and public with the ready to use snacks of the applicants. The applicants have become aware of the launch of snacks in/the ready to cook range by respondent under a deceptive trade mark YUMMIEZ which is almost identical except for some spelling in the ending syllable. The respondents adoption and use of the phonetically, visually and structurally similar, trademark YUMMIES is of recent origin. The adoption of an identical mark with misspelling by the respondent is intentional, calculated to deceive and defraud the purchasing public. The channels of trade and class of customers are also the same. No ordinary person, of average intelligence and imperfect recollection would be able to distinguish the products because of the identical bran names and the unavoidable confusion that has crept in. The activities of the respondent which has no justification for adoption and use of an almost identical trade mark amount to passing off their food products as that of the applicants food products. Hence, the relief as sought for. .3. The respondent/defendant has contended in the counter that the respondent belongs to the well established and highly reputed house of Godrej. The reputation and goodwill earned by Godrej is reflected by the annual turnover of the Godrej which is in excess of Rs.3,000 crores. The house of Godrej has been spending huge amount on advertisement and sales promotional expenses. In or about June 2006, the respondent independently and honestly adopted a label mark consisting of the house mark GODREJ and the word YUMMIEZ and a unique design, layout, get up and colour scheme and started using the said label in respect of the ready to cook products. The word Yummiez was derived from, and it is synonymous with the word Yummy which means "pleasant to the senses, especially to the taste delicious". As a result of widespread promotion and publicity, the said mark YUMMIEZ has acquired immense popularity amongst the consumers and members of the trade. The word Yummiez was derived from, and it is synonymous with the word Yummy which means "pleasant to the senses, especially to the taste delicious". As a result of widespread promotion and publicity, the said mark YUMMIEZ has acquired immense popularity amongst the consumers and members of the trade. The word Yummy is a common English dictionary word and highly descriptive, especially when its is used upon and in relation to food products and like items. The respondent is not the only Company using the word Yummiez in relation to food products in the market. The applicants do not have a protectable goodwill or reputation in respect of its trade mark YUMMIES. The applicants are using their label in relation to ready to cook snacks whereas the respondent is using the label in relation to ready to cook food like cutlets, chicken salami, etc. The consumer of the respondents products are mostly literate working women. There is no possibility of any confusion or deception between the respondents products and the applicants products. The applicants have specifically disclaimed their mark YUMMIES since the word was a laudatory epithet and had a direct reference to the quality/character of the goods in respect of which the same was registered. Therefore, the respondents have prayed for dismissal of the applications seeking ad interim injunction. 4. It is the admitted case of both the parties that the marks YuMMIES and YUMMIEZ are almost identical. The products manufactured, marketed and sold by the respective parties under tie mark YUMMIES and YUMMIEZ are food products. There is no dispute to the fact that the applicants are the prior user of their mark YUMMIES. Learned senior counsel appearing for the respondent, Mr. P.S. Raman would fairly submit that the respondent does not press, for the present, the contentions that there is no territorial jurisdiction for this Court to deal with the suit and that there and a legal bar for the current proceedings initiated by the applicants. .5. There is a disclaimer as to the mark YUMMIES made by the applicants at the time of registration of their trade mark. Therefore, the applicants have consciously omitted to pray for any relief with regard to the infringement of the trade mark which was registered. 6. .5. There is a disclaimer as to the mark YUMMIES made by the applicants at the time of registration of their trade mark. Therefore, the applicants have consciously omitted to pray for any relief with regard to the infringement of the trade mark which was registered. 6. The Supreme Court has held in Godfrey Phillips India Ltd. v. Girnar Food & Beverages Pvt. Ltd. (2000) PTC 365 (SC) that passing off action can be maintained even in a case where a disclaimer can be made in the certificate of registration. Therefore, the law is well settled that the disclaimer clause found in the certificate of registration does not disentitle the trade from seeking passing off action. 7. The word Yummy as per the Websters Dictionary means "delicious, luscious, pleasant-tasting; extremely pleasant to the sense of taste". As per the Oxford Dictionary, it carries the meaning "delicious". In Cambridge Dictionary, the word Yummy means "tasting extremely good". The very fact that the applicants have chosen to disclaim the word Yummies would go to show prima facie that the said word is not distinctive. No one would like to give up their claim for monopoly of their trade mark registered unless the trade mark falls shot of distinctiveness. The disclaimer is an antithesis of distinctiveness. If a trade mark registered has been derived from the dictionary or a common language which is in vogue in the society, it loses its distinctiveness as the primary meaning of the word is only descriptive. Unless the word acquires a secondary meaning indicating the products of a particular trader, a person who has registered such a trade mark cannot seek for passing off action. That is to say a distinctiveness attached to the dictionary word or a word in common usage can be acquired only through the long usage. The consumer should come to identify such a trade mark with that of the products. It requires lot of advertisements in the multimedia. 8. The mere use of the mark or increased use of the mark does not prove that the mark is distinctive. The use and increased use of the mark must be in distinctive sense so as to identify the product of the claimant with that of the mark. It requires lot of advertisements in the multimedia. 8. The mere use of the mark or increased use of the mark does not prove that the mark is distinctive. The use and increased use of the mark must be in distinctive sense so as to identify the product of the claimant with that of the mark. The laudatory or descriptive epithet found common in use should lose its primary meaning and acquire a new dimension of distinctive meaning on account of the use of the product with the mark concerned. 9. The applicants/plaintiffs have disclaimed consciously their registered trade mark Yummies in the registration certificate obtained by them. The disclaimer clause reads that the registration of their trade mark shall give no right to exclusive use of the word Yummies. It has been held in Jhaveri Industries v. Majethia Masala (2006) (33) PTC 394 (Bom) as follows:- "The word Rajwadi being disclaimed, obviously, means therefore, that it is a descriptive word which can be used by other manufacturers as seen from the affidavit filed by the defendants. This word is used to describe one type masala. This masala, according to the defendants, has originated in Rajasthan and, therefore, in my view, the action of passing off is not maintainable, prima facie". 10. Firstly, it is found that the mark Yummy is not the innovative mark of the applicants. The search report filed by the respondent would, prima facie, show that the same mark had been used previously and subsequently by some other Companies. The word Yummy, which carries the meaning of "delicious and pleasant tasting stuff", is only descriptive or laudatory, epithet of the word Yummies. Therefore, the plaintiff has to necessarily establish that the mark Yummies has acquired secondary meaning. 11. The sales turnover the entire food products of domestic variety of the applicants for the year 1999-2000 has been arrived at Rs.10,37,683.52 and for the year 2000-2001 at Rs.15,25,4010. It is to be noted that no separate volume of business of the product Yummies was produced by the applicants. The sales turnover for the year 2002-2007 is found to be very negligible. It is to be noted that no separate volume of business of the product Yummies was produced by the applicants. The sales turnover for the year 2002-2007 is found to be very negligible. A stray instance of advertisement made in the year 2007 just before laying of the suit has been produced to show that the product of the applicants Yummies was promoted, but no substantial material was produced to establish that the product was promoted prior thereto engaging multimedia on spending huge amount towards advertisement. The respondent has produced substantial affidavits from its customers/agents/franchisees. But, nothing was produced by the applicants to show that they have built up a strong consumer base to such an extent that the brand Yummies has become synonymous with the ready to eat product of the applicants. It is to be noted that the product of the respondent is ready to cook and not ready to eat. The customer segment of the applicants is totally different from the customers of the product Yummiez of the respondent. The class of customers who go to a shop with a decision to purchase ready to eat stuff will not even accidentally stumble upon the ready to cook product. Therefore, neither of them would get confused as their range of choice of the food product is totally different. 12. The word Godrej which has got enormous reputation amongst the customers is prefixed to the mark Yummiez. The annual turnover of the respondent during 2006-2007 has been arrived at Rs.470.80 lakhs. They have spent a huge sum of Rs.148.54 lakhs in promoting their product by way of advertisement during the aforesaid period. 13. The search report filed by the respondent would disclose that there is already a Company which uses the trade mark Yummyholic which was registered as per the application dated 28. 1983. About half A dozen Companies have subsequently started using the mark Yummy. 14. The Delhi High Court in Automatic Electric Limited v. R.K. Dhawan (1999) PTC (19) 81 has held that the use of a mark by others cannot be a defence available to the respondents if it can be shown that a similar mark is being used in violation of the statutory right of the applicant. The same has been reiterated by the Delhi High Court in the subsequent judgment in Indian Shaving Products Ltd. Gift Pack (H.C.) (2000) CLC 183. The same has been reiterated by the Delhi High Court in the subsequent judgment in Indian Shaving Products Ltd. Gift Pack (H.C.) (2000) CLC 183. I am full agreement with the above view point. Therefore, the argument that others also are using the identical trade mark and therefore, the applicants cannot single out the respondent in an action for passing off does not have any leg to stand upon. 15. In Corpus Juris Secundum, Vol.87 in paragraphs 34 and 35 at page 271, the test whether the words are descriptive has been laid as follows:- "The true test in determining whether a particular name or phrase is descriptive is whether, as it is commonly used, it is reasonably indicative and descriptive of the thing intended. In order to be descriptive within the condemnation of the rule, it is sufficient if information is afforded as to the general nature or character of the article and it is not necessary that the words or marks used shall comprise a clear, complete and accurate description. The meaning which should be given is the impression and significance which are conveyed to the public. Whether words or marks claimed as trade marks are descriptive or whether they are suggestive or arbitrary and fanciful must be decided with respect, to the articles to which they are applied and the mark must be considered as a whole". Here, in the instant case, the very fact that the word Yummies has been drawn from the dictionary and it carries the meaning of delicious and pleasant tasting product would go to establish that the mark Yummies is nothing but a descriptive word. 16. The Bombay High Court in Ayusakthi Ayurved Private Limited v. Hindustan Lever Limited (2003) 5 Bom. Cr 523 has observed as follows:- "Dr. Tulzapurkar, the learned counsel for the defendants further submitted that the mark Ayushakti is descriptive of the mark of the plaintiffs and in any case laudatory and therefore the plaintiffs cannot claim a monopoly to prevent defendants from using the mark Ayush think there is substance in this contention. In the first place though the words may not be strictly descriptive of the plaintiffs mark it does tend to be descriptive and in any case laudatory in the sense that it suggests that use of the product would contribute to life, well being and strength. In the first place though the words may not be strictly descriptive of the plaintiffs mark it does tend to be descriptive and in any case laudatory in the sense that it suggests that use of the product would contribute to life, well being and strength. In a situation such as this it is settled law that where such words are used, unless the plaintiff shows that the words have acquired a secondary significance, such that it has displaced the primary significance and meaning of the word, the defendants should not be prevented from using similar words which are part of common language. Viewed from that angle, it is clear that the plaintiffs mark Ayushakti is not to exclusive or so inevitably associated with the plaintiffs product that the word Ayush standing alone cannot be used by anyone else". 17. In Victory Transport Company Private Limited v. District Judge, Ghaziabad and Others AIR 1981 All 421 , it has been observed as follows:- "13. In regard to a passing off action, it seems, to me that according to settled law, there are broadly two tests which have to be applied for determining the question whether the plaintiff is entitled to an injunction. The law on the subject has been very succinctly stated in the following decisions, the first two of which were cited by counsel for the defendant the third by the petitioners counsel: ........ The suggested tests are:- 1. Whether the words used in the trade names, of the plaintiff are mere descriptive words of common use or have they come to acquire a distinctive or secondary meaning in connection with the plaintiffs business so that the use of those words in the trade name adopted by another was likely to deceive the public? (See AIR 1974 AP 274 (Paragraph 8). This test relates to the reputation which the plaintiff claims for itself. 2. Whether there is a reasonable probability that the use of the name adopted by the defendants was likely to mislead the customers of the plaintiff by reason of similarity of the two trade names. 15. I am in respectful agreement with the enunciation of the law by all the three High Courts in the cases mentioned above. 2. Whether there is a reasonable probability that the use of the name adopted by the defendants was likely to mislead the customers of the plaintiff by reason of similarity of the two trade names. 15. I am in respectful agreement with the enunciation of the law by all the three High Courts in the cases mentioned above. These High Court, have rightly emphasized that the Court shall insist on a very high standard of proof before it would grant injunction in favour of the plaintiffs, in view of the seriousness of the repercussions which such an injunction is bound to have on the rights of the defendants. The injunction prayed for in such cases prohibits the defendants altogether from carrying on their business under a trade name adopted by it at the instance of a plaintiff whose claim is founded on no more than such illusive concepts as reputation or goodwill and so forth. In the cases of infringement of trade marks, the right is founded on registration of the mark which per se is property. It must be borne in mind that in the case of an action on infringement of a trade mark in view of the statutory provisions. (The Trade and Merchandise Marks Act), a similarity in the trade marks is per se actionable. In passing off actions, however, the plaintiff has to prove further that his trade name has by reputation and use, come to acquire a secondary meaning indicating distinctiveness and quality of the business being carried on by him". 18. In First Computers (Formerly) known as Brilliants Computer Centre v. A. Guruprasad (1996) 16 PTC 27 the judgment Reju Singh v. Shanta Devi (Manu/Ap/0082/1974 was cited as follows:- ".... It has now been, uniformly laid down as settled rule that either in the case of goods or business the plaintiff has to show that his mark has become so distinctive that the public regard the same as belonging to a particular source. The plaintiff has to further prove that the offending mark of name is likely or calculated to deceive and cause confusion among the public thereby injuring the plaintiffs business. It has also been held that where a trader adopts a trading name including mere descriptive words of common use the Court will not readily assume that the use of the said word or name by another is likely to cause confusion. It has also been held that where a trader adopts a trading name including mere descriptive words of common use the Court will not readily assume that the use of the said word or name by another is likely to cause confusion. In such cases it is incumbent upon the plaintiff to show that the name has acquired a secondary meaning in connection with the goods or business so that the use of the name by another, is likely to "deceive the public". 19. The applicants in this case, who have registered the mark Yummies which is descriptive and laudatory in nature, is bound to establish in an action for passing off that the descriptive word Yummies has now carried a secondary significance in the trade circle and the customers used to identify the descriptive word Yummies with the product ready to eat marketed by the applicants. If such a distinctive character of the word Yummies acquired due to the user is not established by the applicants, they will have to fail in the application seeking interim injunction. 20. The respondent has produced hundreds of affidavits of traders and customers to show prima facie that the respondent has gained a reputation for their mark Godrej Yummy. Their wider consumer base also has been demonstrated before the Court through the documents showing the turnover on account of volume of business. The Court will have to find whether the ultimate consumer would get confused or deceived on seeking the product of the applicant and the respondent. It is found that the ready to eat food stuff of the applicants and the ready to cook food stuff of the respondent are presented in packets under, their respective labels. The rival trade mark labels have their own design, lay out and colour scheme. There is no similarity between the rival trade mark labels produced before this Court. The source of the goods has been prominently displayed in the pack of the respondent. 21. The rival trade mark labels have their own design, lay out and colour scheme. There is no similarity between the rival trade mark labels produced before this Court. The source of the goods has been prominently displayed in the pack of the respondent. 21. The learned counsel appearing for the applicants cited the decision in Mahendra and Mahendra Paper Mills Limited v. Mahindra and Mahindra Limited AIR 2002 SC 117 : (2002) 2 SCC 147 : 2001 AIR SCW 4679 wherein it has been, held as follows: "Without intending to be exhaustive some of the principles which are accepted as well settled may be stated thus; that whether there is a likelihood of deception or confusion arising is a matter for decision by the Court, and no witness is entitled to say whether the mark is likely to deceive or to cause confusion; that all factors which are likely to create or allay deception or confusion must be considered in combination; that broadly speaking, factors creating confusion would be, for example, the nature of the market itself, the class of customers, the extent of the reputation, the trade channels, the existence of any connection in course of trade, and others". In the instant case, the nature of the product, the source of the product and the trade dress do not give any scope for confusion in the mind of the customers. 22. It is useful to refer to the following observation found in Durga Dutt Sharma v. Navaratna Pharmaceuticals Laboratories AIR 1965 SC 980 : "If he essential features of the trade mark of the plaintiff have been adopted by the defendant, the fact that the get-up, packing and other writing or marks on the goods or on the packets in which he offers his goods for sale show marked differences, or indicate clearly trade origin different from that of the registered proprietor of the mark would be immaterial; whereas in the case of passing off, the defendant may escape liability if he can show that the added matter is sufficient to distinguish his goods from those of the plaintiff". In the instant case, the colour scheme, get up, lay out, packing and the trade dress distinguishes the ready to cook product of the respondent with the ready to eat product, of the applicants. In the instant case, the colour scheme, get up, lay out, packing and the trade dress distinguishes the ready to cook product of the respondent with the ready to eat product, of the applicants. Therefore, there is no scope for deception on account of confusion in the mind of the consumers. 23. In Consolidated Foods Corporation v. Brandon and Company Private Limited AIR 1965 Bom 35 , it has been observed that a trader acquires a right of property, in a distinctive mark merely by using it upon or in connection with his goods irrespective of the length of such user and the extent of his trade. It is not necessary that the goods should have acquired a reputation for quality in the market. As a matter of fact, a single actual use with intent to continue such use eo instanti confers a right to such mark as a trade mark. 24. In Century Traders v. Roshan Lal Duggar & Co. AIR 1978 Del 250 , following the aforesaid ratio, it has been held that in order to succeed in getting an interim injunction in an action for passing off, the plaintiff has to establish the user of the mark prior in point of time than the impugned user by the defendant. 25. In Dr. Ganga Prasad Gupta & Sons v. S.C. Gudimani AIR 1986 Del 329 , it has been held as follows: "The position of law in this regard is well-settled, that a trader acquires a right in a distinctive mark merely by using it upon or in connection with his goods irrespective of the length of such user and the extent of his trade, and this is independent of its registration which merely affords further protection under the statute. Priority in adoption and use of trade mark is superior to priority in registration". 26. In my considered opinion, the aforesaid observation in the judgment would apply only in passing off action where non-descriptive or non-laudatory mark is sought to be deceptively used. But, in a case of descriptive mark, copied from dictionary, the applicants who have initiated passing off action shall, show before the Court that such mark has attained a secondary distinctive meaning. In my considered opinion, the aforesaid observation in the judgment would apply only in passing off action where non-descriptive or non-laudatory mark is sought to be deceptively used. But, in a case of descriptive mark, copied from dictionary, the applicants who have initiated passing off action shall, show before the Court that such mark has attained a secondary distinctive meaning. To establish that the mark has acquired a secondary significance, the wider customer base, promotion of the product and the volume of business done by the applicant will have to be necessarily considered by the Court to arrive at a conclusion whether the descriptive word has become distinction the estimation of the consumers. 27. An applicant in an action for passing off must prove the following:- .(i) That the trade mark which he has been using on the goods manufactured by him has assumed a vendible character. .(ii) He has been using the said trade mark even before it was used by the defendants. (iii) His goods are identified and recognized by the use of the said trade mark and in case the defendant is allowed to use the said trade mark which is deceptively similar to the said trade mark it is likely to cause irreparable loss and damage to him. (iv) There is every likelihood that the impugned trade marks will invade and offend the property rights of the applicant. (See: Vinnay Chawla v. Chandamama Toytronix Pvt. Ltd. AIR 1992 Del 234 ) 28. The applicant is bound to show before the Court in an action for passing off that the goods under the impugned trade mark have acquired a vendible character and the same are being identified and recognized by the customers with the help of the said trade mark. With the poor volume of trade and the promotion avenues, the applicants have miserably failed to show even prima facie that their mark is identified with the product and thereby it has acquired a niche in the customers perspective. 29. The Supreme Court in Dhariwal Industries Ltd. M.S.S. Food Products AIR 2005 SC 1999 : (2005) 3 SCC 63 : (2005) 2 MLJ 139 has observed as follows at p. 145 of MLJ: "11. .... 29. The Supreme Court in Dhariwal Industries Ltd. M.S.S. Food Products AIR 2005 SC 1999 : (2005) 3 SCC 63 : (2005) 2 MLJ 139 has observed as follows at p. 145 of MLJ: "11. .... Prima facie, it appears to us that the mark "Malikchand" was being used, though not much publicized by the original user, leading to the alleged acquisition of the right to use the mark by the plaintiff. The defendants appear to have started the use of the mark "Manikchand" on a large scale at a subsequent point of time". Lack of sufficient advertisement by the plaintiffs, the volume of business transacted by the defendant subsequently have been ignored by the Supreme Court while upholding the order of injunction granted concurrently by the Trial Court as well as by the High Court. It is relevant to note that the Supreme Court, while upholding the order of injunction granted concurrently by the Trial Court as well as the High Court, has observed further as follows:- "It is one thing to say that this Court, if it were exercising its original jurisdiction, might have refused an interim injunction on the ground that the plaintiff was not prompt in approaching the Court for relief or that having allowed the defendants to use the mark for some time, no occasion had arisen for preventing the user by the defendants by way of an interlocutory injunction. But this Court is not exercising its original jurisdiction and is, in fact, exercising only the jurisdiction under Article 136 of the Constitution in a case where both the trial Court and the appellate Court have granted the injunction, considering the circumstances available in the case". Further, it is found that the word Malikchand used by the plaintiff and the word Manikchand used by the defendant in the said case are found to be non-descriptive. The above observation of the Supreme Court holds good in a case were non-descriptive and innovative mark of the plaintiff is hijacked by the defendant to deceive the consumers. Therefore, the aforesaid observation of the Supreme Court does not apply to the facts and circumstances of the case. 30. The above observation of the Supreme Court holds good in a case were non-descriptive and innovative mark of the plaintiff is hijacked by the defendant to deceive the consumers. Therefore, the aforesaid observation of the Supreme Court does not apply to the facts and circumstances of the case. 30. In Living Media India Limited v. Jitender v. Jain (2002) 25 PTC 61 (Del) it has been held that if a mark is used in relation, to goods, the mark becomes the property of its prior user even if it happens to be descriptive in nature, but, it has been coined by it. The prior user has got the right of protection. It has been further observed therein as follows:- "The word "Aaj" and "Tak" may be individually descriptive and dictionary word and may not be monopolized by any person but their combination does provide a protection as a trademark if it has been in long, prior and continuous user in relation to particular goods manufactured, sold by a particular person and by virtue of such user the mark, gets identified with that person. It is so irrespective of the fact whether such a combination is descriptive in nature and has even a dictionary meaning. In such a case any other person may choose any of the two words viz., either "Aaj" or "Tak" as its trade name or mark but it has to be prohibited from using the combination of these words as such a user not only creates confusion as to its source or origin but also bares the design or motive of its subsequent adopter". The above observation would make it clear that when the mark is identified with the product, then the prior user of the mark of descriptive character drawn from dictionary can seek protection from the Court. I fully agree with the aforesaid view expressed by the High Court of Delhi in the aforesaid judgment. 31. Though the applicants are the prior adopters and users of the mark Yummies, they have failed to show prima facie before the Court that their mark has acquired a secondary meaning to denote the very product manufactured and marketed by them. I fully agree with the aforesaid view expressed by the High Court of Delhi in the aforesaid judgment. 31. Though the applicants are the prior adopters and users of the mark Yummies, they have failed to show prima facie before the Court that their mark has acquired a secondary meaning to denote the very product manufactured and marketed by them. Just because the applicants are the prior users, when their mark is descriptive in nature, they cannot seek an order of injunction as against the respondent who has promoted their product with the identical mark in a large scale and transacted volume of business. The trade dress of the respondent does not duplicate the trade dress of the applicants. It has also been demonstrated that the segment of the customers being attracted by the applicants is totally different from the customers being attracted by the respondent inasmuch as the finished products marketed by each of them is totally different. An ordinary person of average intelligence and imperfect recollection can very well differentiate the product of the applicants and the respondent. 32. The plaintiffs have failed to establish prima facie case for grant of interim injunction as sought for. If injunction is granted, the voluminous business transacted by the respondent with their trade mark will adversely affect their business venture. As the end product manufactured and marketed by the applicants is totally different from the products of the respondent, the Court finds that balance of convenience is only in favour of the respondent. Irreparable loss and injury will be caused to the respondent if an order of injunction is granted in favour of the applicants. 33. In view of the above, the application stands dismissed.