ORDER (Per A. Gopal Reddy, J.) This petition is filed by the petitioner appellant-defendant No.1 seeking suspension of the operation of the judgment and decree dt. 10-4-2008 passed in O.S.No.34 of 2006 by IV Additional District and Sessions Judge, Visakhapatnam. 2. For the sake of convenience, the parties herein will be referred to as arrayed in the trial court. 3. The plaintiff filed the suit against defendants 1 and 2 for permanent injunction restraining the defendants from registering the trade mark "Vizag Profiles" with symbol "I" and its usage by the first defendant and for damages of RS.1 0,00,000/-. 4. According to the plaintiff, namely, Rashtriya Ispat Nigam Ltd., (RINL) having its Steel Plant at Visakhapatnam, the plaintiff is a fully owned Government of India Undertaking, and is a company registered under the provisions of Companies Act, 1956, and it is popularly known as Visakhapatnam Steel Plant and is India's most modern shore based integrated steel plant. The plaintiff's company has conceived, adopted and used the trade mark "VIZAG STEEL" to develop a distinct brand, which is indicative of the quality edge, which is the hall mark of all their products. The hard work over the years of the production personnel and the marketing team of the company bare fruit and the trade mark "VIZAG STEEL" and the symbol "I" is today a well known brand and a leader in the steel industry of the country and abroad as well. They applied for and obtained registration of the trade mark "VIZAG STEEL" with the symbol "I" as a trade mark with registered number as 621157 and it was renewed in the year 2001 and it is valid till March, 2007. The trade mark has been given initially by the Registrar of the Trade Marks under Trade and Merchandise Marks Act, 1958. It is in respect of common metals and their alloys, metal building materials, transportable buildings of metal, materials of metal for railway tracks, non-electric cables and wire of common metals, pipes and tubes of metal ores and all other goods included in Class-6. Both the words "VIZAG STEEL" and the mark "I" in white encircles by a black circle are a part of the registered trade mark. Both the words "VIZAG STEEL" and the mark "I" in white encircles by a black circle are a part of the registered trade mark. While so, in the month of November, 2004, the Consultant of the plaintiff stationed at Chennai dealing with trade marks registration informed that there is one trade mark "VIZAG PROFILES" which is applied by M/s. Vizag Profiles Limited, Ameerpet, Hyderabad. Since their trade mark "VIZAG" has already been registered, the plaintiff gave them a warning notice to the first defendant, followed by legal notice dt. 17-12-2004 calling upon the first defendant to withdraw their application under intimation to the counsel of the plaintiff. The first defendant gave a reply dt. 5-1-2005 to the counsel denying the same. In reply to letter dt. 5-1-2005, the plaintiff got issued another letter dt. 14-2-2005 to the first defendant. It appears that on an application made by the first defendant with the Trade Mark Registering authorities, they have published an advertisement in the Trade Marks Journal No. 1327 Supplement II January under Section 20(1) proviso as an advertisement before acceptance. On coming to know about the advertisement, the plaintiff filed Notice of Opposition on 27-5-2005 under Sections 21 (1), 64, 66, 73 and Rules 47(1), 131 (1) and 138(1) of Trade Marks Act, 1999. The plaintiff became aware of the attempt to use the mark "VIZAG" and symbol "I" by the first defendant as a trade mark when it was cited as a mark in the examination report. The adoption of identical trade mark "VIZAG" and symbol "I" in a deceptive way is a clear mala fide attempt on the part of the first defendant to use the famous trade mark of the plaintiff to make unlawful gain and mislead the customers as if they are the products belonging to the plaintiff. The trade mark submitted by the first defendant is having all the grounds for refusal of registration. The first defendant by submitting the application for registration of the trade mark similar to the trade mark of the plaintiff containing the word "VIZAG" and the symbol "I" in the circle creates confusion in the mind of public and trade as it is deceptively similar. The first defendant by submitting the application for registration of the trade mark similar to the trade mark of the plaintiff containing the word "VIZAG" and the symbol "I" in the circle creates confusion in the mind of public and trade as it is deceptively similar. By using the deceptively similar trade mark, the first defendant intends to boost sales of their goods by misleading the purchasers to believe that those goods are of the plaintiff and are of the same quality. 5. The first defendant filed a written statement contending that "VIZAG STEEL" was neither coined by the plaintiff company nor was it created through intellectuality, but it has been derived from common usage that the steel plant is located at Visakhapatnam, which is popularly known as Vizag. The word "VIZAG STEEL" is neither a well known trade mark nor a geographical indication. The mere registration of the words "VIZAG STEEL" does not mean that nobody can make use of the word "VIZAG" as prefix or suffix to their trade mark. Before granting a registration certificate, the Trade Mark Registry has published Trade Mark of the plaintiff in the official Trade Mark Journal bearing No.1239 Supplement dt. 21-1-2001 stating that registration of this trade mark shall give no right to the exclusive use of expression "steel" and "I" in circle. The plaintiff cannot claim the symbol "I" along with trade mark "VIZAG STEEL". In order to protect the intellectual property rights, the trade mark "VIZAG PROFILES" is filed in different classes and obtained the registration certificate in class 42. Whereas the trade mark of the plaintiff is registered for the goods in Clause 6. The goods of the first defendant are completely different. There is no confusion in the market as both the plaintiff and the first defendant are in big sales and all the market people are aware that "VIZAG PROFILES" gets the raw material from the plaintiff only. The first defendant is one of the leading suppliers of quality steel to several bulk consumers/projects in India and abroad. In the course of business, the first defendant entered into several contracts and memorandum of understanding with many steel producers such as Tata Steel, Rashtriya Ispat Nigam Limited and SAIL. The plaintiff acquiesced about the first defendant's business by using the trade mark "VIZAG PROFILES". In the course of business, the first defendant entered into several contracts and memorandum of understanding with many steel producers such as Tata Steel, Rashtriya Ispat Nigam Limited and SAIL. The plaintiff acquiesced about the first defendant's business by using the trade mark "VIZAG PROFILES". In view of Section 33, the plaintiff cannot prevent the first defendant from using the trade mark "VIZAG PROFILES" along with the device and words "V' "P" in the circle as part of their trade may Apart from the above pleas, the first defendant pleads that the court has no jurisdiction to entertain the suit; the plaintiff has not paid the court fee on the relief of item - C which is equivalent to the mandatory direction, and suit is bad for mis-joinder of parties. 6. The second defendant remained ex parte. 7. On the above pleadings, the following issues were settled for trial: 1. Whether the plaintiff is entitled for a grant of permanent injunction against the defendants from registering the trade mark "Vizag Profiles" with the symbol "I" and its usage by the first defendant? 2. Whether the plaintiff is entitled to damages for Rs.1 0,00,000/- from the first defendant? 3. Whether the plaintiff is entitled for delivery of the infringing labels and marks for destruction or erasure from the first defendant? 4. To what relief 8. During the pendency of the suit, learned trial court granted ex parte injunction in I.A.No. 321 of 2006 and after contest I.A. was allowed making the stay granted earlier absolute. Against which, the defendant NO.1 carried the matter in appeal before this court in C.MANo.714 of 2006. While admitting the appeal, this court suspended the orders passed in IANo.321 of 2006 on 1-9-2006 in C.M.A.M.P.No. 1443 of 2006. Thereafter, the appeal was disposed of directing the trial court to dispose of the suit within a period of three months from the date of receipt of the order and the interim suspension granted shall continue till the disposal of the suit subject to the condition that defendant No.1 deposits a sum of Rs.20,00,000/- within a period of two weeks from the date of judgment i.e., 3-7-2007. It was further made it clear that any proceedings in regard to the registration of the trade mark by the second defendant shall be subject to the decision in the main suit. It was further made it clear that any proceedings in regard to the registration of the trade mark by the second defendant shall be subject to the decision in the main suit. Feeling aggrieved by the condition of deposit of the amount, an appeal was filed by the first defendant before the Supreme Court in S.L.P.(Civil) NO.18109 of 2007 and it was dismissed on 18-1-2008 by the Supreme Court without expressing any opinion on merits in view of subsequent event i.e., trial being proceeded in the suit. 9. In order to substantiate the respective pleadings, Deputy General Manager of the plaintiff company was examined as P.W.1 and Deputy Chief Manager in Marketing Department was examined as P.W.2 and got marked Exs.A-1 to A-29. The Managing Director of the first defendant was examined as D.W.1 and Exs.B-1 to B-56 were marked on behalf of the first defendant. 10. Learned trial Judge by the impugned judgment while observing that though the style of the words "V" and "P" is distinct from the style of the words "VIZAG STEEL" in the light of several similar combined words used by the plaintiff, the words "V" and "P" given an impression that it is also one of such series of words of the plaintiff and in addition to that the way in which the symbol "V" "P" in the circle with dark background is used by the first defendant further strengthens the impression of the general customer that the same trade mark belongs to the plaintiff. Though the first defendant contended that it has used the letter "v" and "P" in its symbol, it is not in fact mere use of capital letters of "V" and "P". The skeletal structure used in the letters V and P is based on the capital letter "I". It has just added two more slanting lines, one is big and other is small to the capital letter "I" on either side to form the symbol resembling that of the plaintiff. The skeletal structure used in the letters V and P is based on the capital letter "I". It has just added two more slanting lines, one is big and other is small to the capital letter "I" on either side to form the symbol resembling that of the plaintiff. For the purpose of clarity, the learned Judge noted the trade marks and that though the plaintiff cannot claim any ownership over the words "Vizag" or "I" separately but it could certainly resist any other person from using composite marks similar to the marks of the plaintiff, if the deceptive mark is likely to deceive the public or allow other party to pass off the goods or infringes the registered trade mark of the plaintiff due to such similarity, decreed the suit of the plaintiff partly restraining the first• defendant form using the trade mark "Vi zag Profiles" with symbol "I" in the circle until the issuance of registration of trade mark of the first defendant is finally decided by the Registrar of Trade Marks or Appellate Court as the case may be and dismissed the rest of the claim of the plaintiff. Aggrieved by the same, the present appeal is filed. 11. Pending appeal, the petitionerappellant-D-1 filed A.S.M.P.No. 2629 of 2008 to suspend the operation of the judgment and decree dt. 10-4-2008 passed in O.S.No.34 of 2006 by the IV Additional District Judge, Visakhapatnam. 12. Sri D. Venkat Reddy, learned counsel for the petitioner-appellant-D-1 contended that according to the plaintiff "I" is disclaimer and words "V" and "P" in the round are similar to "I". Under EX.A-2 the Registrar of Trade Marks informed that Registration of "Vizag Steel" shall not give right to the exclusive use by the plaintiff of the expression Steel and "I" which circle. Under Section 17(2) of the Trade Marks Act, 1999 when a trade mark contains any part (i) which is not the subject of a separate application by the proprietor for registration as a trade mark or (ii) which is not separately registered by the proprietor as a trade mark or contains any matter which is common to the trade or is otherwise of a non-distinctive character, the registration shall not confer any exclusive right in the matter forming only a part of the whole of the trade mark so registered. Once the plaintiff has no independent right, defendant No.1 who obtained registered trade mark of "Vizag Profiles" under Class 16 on 21-2-2008 under Section 23(2) Rule 62(1) of the Trade Marks Act, 1999 and also obtained Certificate of Registration of Trade Mark under Class 42 on 24-9-2005 under Section 23(2) Rule 62(1) of the Trade Marks Act, 1999 is entitled to use the trade mark "Vizag Profiles". When P.W.1 admitted in his deposition about his seeing the hoardings of "VIZAG PROFILES LTD" in the city of Visakhapatnam displaying the trade mark, the fact that he is not aware whether D-1 was using the same trade mark prior to the Gazette Publication is incorrect and is aware of the order passed under EX.A-2 directing non-exclusive claim to the words "steel" and "I" in a circle and is bound by order in EX.A-2. When P. W.1 admitted that since trade made of "VIZAG PROFILES" is not yet registered and it is premature to say whether or not the goods with the trade name "VIZAG PROFILES" are being sold in the market presently, no injunction can be issued restraining the defendant No.1 from using the trade mark "VIZAG PROFILES". Since the plaintiff has no exclusive right to claim and when the defendant No.1 obtained certificate under Ex.B-20, they cannot be prevented from using the same. 13. On the other hand, Sri V. Ravinder Rao, learned counsel for the respondent No.1-plaintiff contended that the plaintiff's case is not based on exclusive registration of trade mark but based on prior use. The defendant No.1 having failed to deposit Rs.20 lakhs as ordered by this court• in C.M.A.No.321 of 2006, he is not entitled to the relief and unless the defendant NO.1 deposits Rs.20 lakhs as ordered he is not entitled to suspension. 14. The Supreme Court in Registrar of Trade Marks v. Ashok Chandra Rakhit Limited AIR 1955 SC 558 after interpreting the provisions of Indian Trade Marks Act, 1940 "held that special advantages which the Act gives to the proprietor by reason of the registration of his trade mark do not extend to the parts or matters which he disclaims. In short, the disclaimed parts or matters are not within the protection of the statute. In short, the disclaimed parts or matters are not within the protection of the statute. It was further held that it is true that where a distinctive label is registered as a whole, such registration cannot possibly give any exclusive statutory right to the proprietor of the trade mark to the use of any particular word or name contained therein apart from the mark as a whole. As said by lord Esher in Pinto v. Badman (1891-8 RPC 181) the truth is that the label does not consist of each particular part of it, but consists of the combination of themall....ltis therefore clear that the section itself contemplates that there may be a disclaimer in respect of parts contained in a trade mark registered as a whole although the registration of the mark as a whole does not confer any statutory right with respect to that part." 15. In Cadila Health Care Ltd., v. Cadila Pharmaceuticals Ltd., AIR 2001 SC 1952 = 2001 (3) ALT 13 .2 (DNSC) the Supreme Court laid down factors to be considered for deciding the question of deceptive similarity as under: (a) The nature of the marks Le., whether the marks are word marks or label marks or composite marks Le., both words and label works (sic. Marks). (b) The degree of resembleness between the marks, phonetically similar and hence similar in idea. (c) The nature of the goods in respect of which they are used as trade marks. (d) The similarity in the nature, character and performance of the goods of the rival traders. (e) 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. (f) The mode of purchasing the goods or placing orders for the goods, and (g) Any other surrounding circumstances which may be relevant in the extent of dissimilarity between the competing marks. 16. (f) The mode of purchasing the goods or placing orders for the goods, and (g) Any other surrounding circumstances which may be relevant in the extent of dissimilarity between the competing marks. 16. Considering the guidelines as enunciated in Cadila Health Care Ltd., (supra) the Madras High Court in Apex Laboratories Ltd. v. Zuventus Health Care Ltd., 2006 (33) PTC 492 (Mad.)(DB), where injunction was sought by the Apex laboratories Ltd., who are the manufacturers of pharmaceutical products have adopted the trade mark "Zincovit" for their product viz., syrup and tablets and have also applied for its registration as a proposed mark and obtained registration of the trade mark against the manufacturing and the selling pharmaceutical products under the trade mark "Zinconia". The Madras High Court after considering various decisions held that both the medicine preparations contain "Zinc" and therefore the word "Zinc" is common to the trade and is publici juris and the appellant cannot claim ownership; over the said word. Further it would be dangerous to split the word into two and grant injunction merely because both the trade names contain the word "Zinc". 17. The learned Trial Judge while dismissing the claim of the plaintiff seeking permanent injunction restraining the defendants from registering trade mark; seeking damages of Rs.10,00,000/- and direction for delivery of infringing labels and marks for destruction or erasure from the first defendant granted injunction restraining the first defendant from using the trade mark "VIZAG PROFILES" with symbol "I" in the circle until issuance of registration of trade mark. Once the suit claim for other reliefs has been dismissed and there is no evidence that defendant No.1 is selling goods with the trade mark used by the plaintiff in the absence of any exclusive right, prima facie, the plaintiff is not entitled to an injunction restraining the defendant No.1 from using the trade mark "VIZAG PROFILES" with symbol "I" in the circle. Once defendant No.1 obtained registered trade mark of "Vizag Profiles" under Class 16 on 21-2-2008 under Section 23 (2) Rule 62(1) of the Trade Marks Act, 1999 and also obtained Certificate of Registration of Trade Mark under Class 42 on 24-9-2005 under Section 23(2) Rule 62(1) of the Trade Marks Act, 1999, defendant No.1 is entitled to use the trade mark "Vizag Profiles". 18. 18. We do no not find any force in the submission of the learned counsel for the plaintiff that failure of compliance of the interim order of deposit of Rs.20 lakhs by the defendant No.1, the petitioner-defendant No.1 is not entitled to suspension of the judgment and decree of the trial court since the claim for damages has already been dismissed by the trial court and direction to deposit Rs.20 lakhs was issued by this court keeping in view of likelihood of damages to be awarded in favour of the plaintiff by the trial court. In view of the same, we are inclined to suspend the operation of the judgment and decree of the trial court and we accordingly do so. 19. A.S.M.P.No.2629 of 2008 is accordingly allowed. No costs.