JUDGMENT : S.J. Vazifdar, J. This is a further application for ad-interim reliefs pursuant to the liberty granted by an ad-interim order dated 12th December, 2011, to make a fresh application after filing an affidavit disclosing further details to support the plaintiffs case that their marks were well-known marks prior to February, 2005. I held that the plaintiffs mark was a well-known mark and that the impugned mark is not only identical to the plaintiffs mark, but is also used in an identical manner by the defendant. I, however, refused ad-interim reliefs as on the basis of the material available at that time, it was not possible to hold that the plaintiffs marks were well-known prior to February, 2005. The defendants contended that they started using the impugned mark in February, 2005. Before referring to the additional material produced by the plaintiff, it is important to note two vital factual errors in the order dated 12th December, 2011. (A) The first is that, on account of a poor photocopy it appeared that the defendant's invoice was issued in the month of February, 2005. I, accordingly, proceeded on the basis that the relevant time for considering whether the plaintiffs marks were well-known marks or not was February, 2005, as that is when the defendants commenced use of title impugned mark. The plaintiffs took inspection of the original invoice. It is now admitted by the defendants that the invoice was issued in the month of December. The relevant date, therefore, is December, 2005. (B). The second error, 1 would presume, was on account of the plaintiffs having inadvertently proceeded on the basis that both the defendants are registered proprietors of the impugned mark. Admittedly, only defendant No. 1 is the registered proprietor of the impugned mark under class 7. The action for infringement against defendant No, 2 is, therefore, maintainable. 2. I have, in the order dated 12th December, 2011, set out the essential facts. It is not necessary to set them out in detail again. Suffice it to note that the plaintiff No. 2 is, as on date, the proprietor of several marks known as the Ultra Tech marks as the dominant and most striking feature in each of them is the word "Ultra Tech". Plaintiff No. 2 granted a licence to plaintiff No. 1, inter-alia, of some of these marks. Suffice it to note that the plaintiff No. 2 is, as on date, the proprietor of several marks known as the Ultra Tech marks as the dominant and most striking feature in each of them is the word "Ultra Tech". Plaintiff No. 2 granted a licence to plaintiff No. 1, inter-alia, of some of these marks. The defendant has used the identical mark in an identical manner, including the capital letter "T" despite the fact that Ultra Tech is written as one word. The letters in both the marks are in italic font in a dark black colour against a yellow background. The plaintiff No. 1 was incorporated as L & T Cement Limited. On 19th November, 2003, it's name was changed to Ultratech Cemco Limited. The name was further changed to the present name with effect from 14th October, 2004. 3. The plaintiffs produced further evidence pursuant to the liberty granted by the order dated 12th December, 2011. The question is whether it establishes that the plaintiffs marks attained the status of well-known marks by December, 2005. 4. Even before considering the additional material produced by the plaintiffs, it is important to note the effect of the existing material in view of the fact that the relevant date has now shifted by ten months i.e. from February, 2005 to December, 2005. 5. During the financial year 2005-2006 i.e. from 1st April, 2005 to 31st March, 2006, the plaintiffs spent an amount of Rs. 37.46 crores towards promotional expenses and the plaintiffs sold 15.55 million tons of cement at a cost of Rs. 3299.45 crores under the said mark. Even if I were to deduct the proportionate amount for the months of January, February and March, 2006, i.e. 25%, the promotional expenses and turn over and sales volume would be enormous. It would be reasonable to presume that the plaintiffs sold 12 million metric tons of the said product for an aggregate price of Rs. 2500.00 crores between the period 1st April, 2005 to December, 2005. 6. Considering the additional material produced, it is not necessary for the plaintiffs to rest their case on the basis of the existing material. It would be reasonable to presume that the plaintiffs sold 12 million metric tons of the said product for an aggregate price of Rs. 2500.00 crores between the period 1st April, 2005 to December, 2005. 6. Considering the additional material produced, it is not necessary for the plaintiffs to rest their case on the basis of the existing material. In paragraph 3 of the additional affidavit, it is stated that Ultra Tech Cemco Limited was only in the business of cement and agnate and cognate goods and, therefore, the annual report for the year 2003-2004 pertains to the cement business of Ultra Tech Cemco Limited, bearing the name and mark "Ultra Tech". The expenses incurred by the plaintiffs towards promotional costs in the year 2003-2004 and 2004-2005 were Rs. 14.68 crores and Rs. 58.95 crores respectively. During the corresponding years, the volume of sales increased from 14.87 million metric tons to 15.17 million metric tons in the sum of Rs. 2251.00 crores and Rs. 2681.00 crores respectively. The acquisition of the cement business of L & T by plaintiff No. 2 in July, 2004, was widely reported across India on various television channels, in newspapers, magazines and periodicals from October, 2004. The plaintiffs have relied upon substantial material to establish the same. 7. It is also significant to note that during the material period, the mark "Ultra Tech" also formed a dominant and significant part of the first plaintiffs name. 8. In Sunder Parmanand Lalwani and Others Vs. Caltex (India) Ltd., AIR 1969 Bom 24 , the Division Bench also considered relevant the fact that the plaintiffs mark was common to it's corporate name and noted that to mention the mark was also to mention the plaintiffs name and that, therefore, there was a greater possibility of the public believing that any goods with the mark on them would be the plaintiffs goods. I will presume that the use of a mark as a part of a corporate name would not be sufficient to establish that it is a well-known mark in relation to the goods sold by the party. I will presume that the use of a mark as a part of a corporate name would not be sufficient to establish that it is a well-known mark in relation to the goods sold by the party. The use of a mark as part of the corporate name indeed constitutes use of the mark u/s 2(m), In the present case, however, the word "Ultra Tech" is not only used as a dominant and significant part of the plaintiffs corporate name, but the plaintiffs products are also sold under the said mark. In the commercial documents such as invoices, the brand name and the corporate name are mentioned. The use of the mark, therefore, in the corporate name is not without any value or significance. 9. It is true that I was impressed in respect of the first application for ad-interim reliefs by the fact that the plaintiffs had advertised their products under the said mark in a extraordinarily prominent manner during the IPL cricket matches. That, however, does not undermine the importance and effect of the advertising campaign in other respects as well during the previous years. The plaintiffs have advertised their products on television, in newspapers, magazines and various periodicals. The extent of the same is clear from the amounts spent towards promotional costs. 10. Mr. Dhond submitted that the particulars of turnover and sales are misleading for various reasons. For instance, he submitted that the other companies in the second plaintiff's group use large quantities of cement and, therefore, the mere fact that the volume of sales were enormous during this period is irrelevant. 11. The defendant raised no queries about the same. The defendant did not even raise this contention in it's affidavit. Had the defendant done so, the plaintiff would have had an opportunity of meeting the case. The submission in this regard is, therefore, rejected. With respect to this argument it is important to note the enormous expenses incurred by the plaintiffs towards promotional costs. A prudent businessman would not spend crores of rupees towards advertising his products under a particular mark if he were to sell the same only to his group companies. The fact that the plaintiff had incurred expenses of almost Rs. 75 crores between the period 2003-2005 towards advertising their products militates against the suggestion that the sales were substantially only to the plaintiffs group companies. 12. Mr. The fact that the plaintiff had incurred expenses of almost Rs. 75 crores between the period 2003-2005 towards advertising their products militates against the suggestion that the sales were substantially only to the plaintiffs group companies. 12. Mr. Dhond further submitted that the sales figures were not in respect of products sold only under the said mark. He submitted that they also include the plaintiffs products sold under different marks such as "Birla White WALLCARE" and "Birla White". He relied upon packets in which the plaintiffs products are sold which bear these marks. He submitted; therefore, that the same established that the sales figures included the plaintiffs products sold under various other marks. 13. This contention had not been raised in the affidavit in reply. Had it been raised, the plaintiff would have had an opportunity to dealing with the same. It would be unfair, therefore, to reject the application for ad-interim reliefs on this ground. Had I considered this contention to be of any significance, I would have permitted the defendants to file a further affidavit to support their contention. However, the packets tendered by the defendant during the hearing itself belie the contention. Both the packets mention the date of manufacture to be October. 2011 and November, 2011. The sales of the plaintiffs products under the other marks, therefore, were not during the relevant years 2003-2005. 14. Mr. Dhond submitted that the plaintiffs mark had not attained the status of a well-known mark by December, 2005. In this regard, he relied upon the invoices furnished by the plaintiffs. He submitted that upto 30th November, 2004, in the invoices under the column. Identification Marks/Serial number of goods", was the mark "LT" within a circle. He submitted, therefore, that the said mark was not even used till then. The first use appears in an invoice dated 30th November, 2004, under the identical column. The same, however, is in conjunction with the mark "LT within the circle. The mark was used for the first time by itself in an invoice dated 25th April, 2005 in the same column. Mr. Dhond submitted that the same indicated that the plaintiffs were themselves not confident about the popularity of their mark. The same, however, is in conjunction with the mark "LT within the circle. The mark was used for the first time by itself in an invoice dated 25th April, 2005 in the same column. Mr. Dhond submitted that the same indicated that the plaintiffs were themselves not confident about the popularity of their mark. This, he submitted, was evident from the fact that the mark "LT" had been used right upto 30th November, 2004 and even thereafter was used only in conjunction with the mark "LT" upto 20th April, 2005, Thus, upto 20th April, 2005, plaintiffs were not confident about the value of the mark by itself The plaintiffs, therefore, themselves traded on the popularity of the "LT" mark. 15. The record, in fact, indicates that the plaintiffs were absolutely confident about the mark and had no intention of trading on the "LT" mark. The use of the mark "Ultra Tech" in conjunction with the "LT" mark does not make a difference. The mark on the invoice has a prominence of its own. The name of the company is also naturally mentioned on the invoice. It is hardly likely that the purchasers of the products would not know the source of the product and would not connect the mark which is used so prominently in the invoice with the plaintiff No. 1. Moreover, the sales figures and the promotional expenses from 23rd November, 2004, are also very substantial. As pointed out by Mr. Tulzapurkar, the plaintiffs' confidence in their mark is evident from the nature of the advertisements issued by it. One of the advertising campaigns depicts a helmet to the left with the "LV cement mark, next to which prominently are the words "IS NOW" and to the right is a helmet with the plaintiffs mark "Ultra Tech". If the plaintiffs intended trading on the "IT" mark, they would never have issued advertisements of this nature. 16. The fact that the sales figures included the price of clinker and allied products makes no difference. Clinker, as Mr. Dhond himself stated, is used by manufacturers of cement and not ordinary consumers. Clinker is only a part of the sales. Moreover, clinker is admittedly a product used in the manufacture of cement and the sale thereof under the said mark also supports the plaintiffs case. 17. Mr. Clinker, as Mr. Dhond himself stated, is used by manufacturers of cement and not ordinary consumers. Clinker is only a part of the sales. Moreover, clinker is admittedly a product used in the manufacture of cement and the sale thereof under the said mark also supports the plaintiffs case. 17. Mr. Dhond submitted that the Court ought to hesitate before holding that a mark is a well-known mark for such a finding would affect the rights of third parties. He relied upon several applications for registration by third parties in respect of the said mark. Mr. Dhond relied upon the alleged use as stated in the search reports from the Trademark Registry at pages 542, 544 and 545 (running pages of the compilation which appear in the affidavit in reply dated 4th January, 2012). A party by the name of Jay Engineering Works Limited alleges having used the mark with effect from 12th November, 1998. A party by the name of Madhuraj Foundation Limited alleges having used the mark. The date of the user, however, appears to have been cut out in the Court's copy. One Rajeev Gupta who obtained registration of the mark claimed to have used it from 6th November, 1996. 18. Mr. Tulzapurkar rightly pointed out that most of these applications have been objected to and opposed. The use of the mark by such parties has not been established. It is true that at least in one case, the mark was alleged to have been used from 6th November, 1996. There is, however, no evidence of such use. The proprietor of the mark has used it in respect of different goods. There is nothing to indicate that, that mark has attained the status of a well-known mark which would disentitle the plaintiffs to use the same. 19. The contention that a finding in one matter would affect the rights of the third parties in all matters is unfounded. Firstly, it is doubtful if a finding in one proceeding that the mark is a well-known mark would disentitle another party in independent proceedings to contend the contrary. Secondly, it is possible that another party used the mark before the plaintiffs mark attained the status of a well-known mark. A finding in this nature would not affect such a third party. Secondly, it is possible that another party used the mark before the plaintiffs mark attained the status of a well-known mark. A finding in this nature would not affect such a third party. Prima facie, at least, and as I observed in the earlier ad-interim order, qua each of the parties, the plaintiffs would have to establish that its mark attained the status of a well-known mark when such party started using the said mark. If the parties whose registration has been relied upon by the defendant had started using the mark in the year 1996, they could successfully resist an action for infringement and passing off by the plaintiffs. That by itself would not entitle the defendants to resist the application. 20. Mr. Dhond also relied upon the fact that there are several companies registered as far back as in the year 1994, whose names contain the mark Ultra Tech. These companies may well be able to resist an action for infringement and passing off if they used the same in their corporate name before the plaintiffs mark became a well-known mark. The defendant, however, cannot benefit from the same once it is held that the plaintiffs mark is a well-known mark and it is not established that the use of the mark by any other party did not constitute the mark to be a well-known mark. 21. That in Suit No. 743 of 2009, Ultra Tech Cement Limited v. Alakhnanda Cement Private Limited & Anr., the plaintiff claimed user from the year 2004, does not preclude the plaintiffs from establishing the user of the mark from an earlier date in this proceeding. In a given case, it may not be necessary for a plaintiff to rely on further evidence considering the facts of that case. Moreover, in that case, the plaintiff No. 2 was not impleaded. 22. Mr. Dhond submitted that in a passing off action based on a well-known mark in addition to establishing that the use of the impugned mark is without due cause and takes unfair advantage of the plaintiffs mark, the plaintiffs must establish that the use of the impugned mark by the defendant had diluted the plaintiffs' mark. 23. I will presume, as submitted by Mr. 23. I will presume, as submitted by Mr. Dhond that while considering whether a mark is a well-known mark, the same tests must be applied in a passing off action as in an action for infringement. I will also assume for the present that the dilution of a mark is different from any other prejudice caused to the proprietor of a mark by the illegal use thereof by another. Even so, the submission is not well founded. 24. I held in the previous order that the defendant's use of the impugned mark was less than honest. Indeed, there is nothing to indicate the contrary even now. Prima facie, by using the impugned mark, the defendant has taken unfair advantage of the distinctive character and repute of the plaintiffs registered mark. 25. Section 29(4)(c) reads as under:- 29. Infringement of registered trade marks.-(1).... (4) A registered trade mark is infringed by a person who, not being a registered proprietor or a person using by way of permitted use, uses in the course of trade, a mark which- (a).... (c) the registered trade mark has a reputation in India and the use of the mark without due cause takes unfair advantage of or is detrimental to, the distinctive character or repute of the registered trade mark. Section 29(4)(c) militates against Mr. Dhond's submission. Section 29(4) does not indicate that the use of the impugned mark must not only be without due cause but that it must also constitute a dilution of the mark. 26. The authorities and the commentaries cited by Mr. Dhond far from supporting his contention, militate against it. 27(A). Mr. Dhond relied upon paragraphs 14-085 to 14-089 of Kerly's Law of Trade Marks & Trade Names, Fourteenth Edition. I do not find any support for this submission in these passages. In fact, as rightly pointed out by Mr. Tulzapurkar, paragraph 14-087 indicates that the burden lies on the defendant who wishes to establish that; his activities fall within the exception viz. that the mark was used with due cause. In any event, even assuming that the burden is on the plaintiffs, in the present case, the plaintiffs have discharged the same. (B). The passage from Dr. S. Venkateswaran on Trade Marks & Passing Off appears to support Mr. Tulzapurkar's submission. that the mark was used with due cause. In any event, even assuming that the burden is on the plaintiffs, in the present case, the plaintiffs have discharged the same. (B). The passage from Dr. S. Venkateswaran on Trade Marks & Passing Off appears to support Mr. Tulzapurkar's submission. It is stated by the learned author at page 1345:- The notion of taking unfair advantage in this sense is that the third party is unfairly using the registered mark to enhance his own business. The most comprehensive description of what constitutes unfair advantage is stated in Mango Sport System Srl Socio Univo Mangone Antonia Vmcenzo v. Diknak: As to unfair advantage, which is in issue here since that was the condition for the rejection of the mark applied for, that is taken when another undertaking exploits the distinctive character or repute of the earlier mark to the benefit of its own marketing efforts. In that situation that undertaking effectively uses the renowned mark as a vehicle for generating consumer interest in its own products. The advantage for the third party arises in the substantial saving on investment in promotion and publicity for its own goods, since it is able to 'free ride' on that undertaking of the earlier reputed mark. It is unfair since the reward for the costs of promoting, maintaining and enhancing a particular trade mark should belong to the owner of the earlier trade mark in question. 28. It is difficult to accept the submission that in order to sustain an application for an injunction against infringement or passing off of a well-known mark, it is necessary for the plaintiffs to establish that the use thereof by the defendant has resulted in dilution at the time of filing of the action. It would result in parties being permitted to infringe well-known marks and to indulge in the tort of passing off in respect thereof till it is established as a question of fact that dilution has, in fact, taken place. The phrase "taking undue advantage of in section 29(4) includes the unauthorised, use by the defendant of the plaintiffs trademark with a view to exploiting the goodwill and reputation attached to the products sold under the plaintiffs mark. This may well lead to dilution, if permitted to go unchecked. 29. The phrase "taking undue advantage of in section 29(4) includes the unauthorised, use by the defendant of the plaintiffs trademark with a view to exploiting the goodwill and reputation attached to the products sold under the plaintiffs mark. This may well lead to dilution, if permitted to go unchecked. 29. Nor do I read the judgment of a learned single Judge of the Delhi High Court in M/s. Kamdhenu Ispat Limited v. M/s. Kamdhenu Pickles & Spices Ind. Pvt. Ltd. & Anr., dated 18th October, 2010 in CS(OS) 2301/2008, I.A. No. 13348/2008, as supporting Mr. Dhond's submission. The question, in fact, did not arise for consideration. The action was based on the assertion that dilution had taken place. The facts were also different in certain material particulars. For instance, in paragraph 15 of the judgment, the Court noted its finding that the defendant had been using the impugned mark in relation to its corporate or trade name much before the plaintiff started using the mark in respect of the goods to which the impugned mark had been placed. In paragraph 26, the Court noted that from the material on record, there was nothing to indicate any linkage between the defendant's mark and the plaintiffs products so as to cause detriment to the plaintiffs and undue advantage to the defendant. 30. Dishonesty of adoption is a relevant factor. In fact, if the adoption of the mark is dishonest, the Court would be justified in drawing an adverse inference at least as far as the defendant is concerned that the defendant admits thereby that the plaintiffs mark is a well-known mark. Why else would a defendant use the plaintiffs mark dishonestly although it is in respect of dissimilar goods. The fact that the defendant dishonestly adopts the plaintiffs mark in respect of dissimilar goods would, prima facie, constitute an admission by the defendant that the plaintiffs mark is a well-known mark. 31. Mr. Tulzapurkar's reliance upon the judgment of a Division Bench of this Court in Sunder Parmanand Lalwani and Others Vs. Caltex (India) Ltd., , is well founded. The Division Bench noted that the applicant had given no explanation why he selected the plaintiffs mark and held that to be an additional factor to be taken into consideration. Even in that case, there was no connection between the plaintiffs goods and the defendants goods. 32. Mr. Caltex (India) Ltd., , is well founded. The Division Bench noted that the applicant had given no explanation why he selected the plaintiffs mark and held that to be an additional factor to be taken into consideration. Even in that case, there was no connection between the plaintiffs goods and the defendants goods. 32. Mr. Dhond submitted that the use of a mark to attain the status of a well-known mark must be across the board i.e. in respect of a wide variety of activities. This factor would certainly enhance he possibility of a finding that the mark is a well-known mark. It does not, however, follow that in the absence thereof, the Court can never come to a conclusion that the mark is a well-known mark. That would depend upon the facts of each case. 33. Further, as rightly pointed out by Mr. Tulzapurkar, the submission is contrary to the plain language of the Act and especially the provisions of sections 2(zg), 11(6)(i)(iii), 11(7), 11(9)(v), which read as under:- 2. Definitions and interpretation:- (zg) "well known trade mark", in relation to any goods or services, means a mark which has become so to the substantial segment of the public which uses such goods or receives such services that the use of such mark in relation to other goods or services would be likely to be taken as indicating a connection in the course of trade or rendering of services between those goods or services and a person using the mark in relation to the first-mentioned goods or services, [Emphasis supplied] 11. Relative grounds for refusal of registration.-(1).... (6) The Registrar shall, while determining whether a trade mark is a well-known trade mark, take into account any fact which he considers relevant for determining a trade mark as well-known trade mark including.- (i) the knowledge or recognition of that trade mark in the relevant section of the public including knowledge in India obtained as a result of promotion of the trade mark; (ii).... (iii) the duration, extent and geographical area of any promotion of the trade mark, including advertising or publicity and presentation, at fairs or exhibition of the goods or services to which the trade mark applies; (7) The Registrar shall, while determining as to whether a trade mark is known or recognised in a relevant section of the public for the purposes of sub-section (6), take into account.- (i) the number of actual or potential consumers of the goods or services; (ii) the number of persons involved in the channels of distribution of the goods or services; (iii) the business circles dealing with the goods or services; to which that trade mark applies. (9) The Registrar shall not require as a condition, for determining whether a trade mark is a well-known trade mark, any of the following, namely:- (i).... (v) that the trade mark is well-known to the public at large in India. 34. Considering the facts of the case, it is reasonable to presume that those who deal in or otherwise use the plaintiffs products sold under the mark and those who are exposed to it would infer that even dissimilar goods with the same mark originate from the plaintiffs. 35. As I noted earlier, it was through inadvertence that during the hearing of the previous application for ad-interim reliefs, it was noted that both the defendants were registered proprietors of the mark. As a matter of fact, only defendant No. 1 is the registered proprietor of the mark. Thus, as against defendant No. 2, the application for reliefs against infringement is maintainable. Whether the defendants can get over the same by defendant No. 1 granting a licence to defendant No. 2 or otherwise is another matter. I find it unnecessary to drive the plaintiffs to file an application for review of the earlier order for this admitted error, especially as the matter is only at the ad-interim stage. 36. The delay, if any, in the present case would not disentitle the plaintiffs to ad-interim reliefs. There is nothing to indicate that the delay is of such a nature as to constitute abandonment, acquiescence or waiver on the plaintiffs part in the use of the impugned mark. 37. 36. The delay, if any, in the present case would not disentitle the plaintiffs to ad-interim reliefs. There is nothing to indicate that the delay is of such a nature as to constitute abandonment, acquiescence or waiver on the plaintiffs part in the use of the impugned mark. 37. Even though I find the adoption of the impugned mark not to be bona-fide as the defendants claim to have used it since the year 2005, I intend granting them the indulgence of disposing of their existing stock but on certain terms and without prejudice to the plaintiffs rights to claim damages in respect thereof. In the circumstances, ad-interim order in terms of prayer (b) against both the defendants. Ad-interim order in terms of prayer (a) against defendant No. 2 only. The defendants are permitted to sell under the said mark, only their existing stock. The details of the existing stock, including the nature of the products, the quantity thereof and the price shall be furnished on affidavit to be filed on or before 15th February, 2012. Such sales, however, should be completed latest by 31st March, 2012. Within two weeks thereafter, the defendants shall furnish accounts in respect of such sales, on affidavit.