Judgment : K. Chandru, J. 1. The applicant is the plaintiff in both applications. In O.A.No.603 of 2012, the prayer is for the grant of an interim injunction restraining the respondents from in any manner passing off or enabling passing off the respondents goods under the Trademark AAGA or any deceptively similar Trademark as and for the goods of the applicant's under the Trademark NAGA or by use of trading style Naga Industries. 2. In O.A.No.604 of 2012, the prayer is for an interim injunction restraining the respondents from in any manner infringing the applicant's registered trademark NAGA by use of the same or any mark deceptively similar to that of the applicant's mark such as AAGA or by use of an identical or deceptively similar trading style such as Naga Industries. 3. The suit was filed by the applicant with identical relief of permanent nature. Pending notice, this court by an order dated 31.07.2012 had granted an interim injunction for a period of two weeks. Subsequently, it was extended upto 6.9.2012. In the meanwhile, the respondents have filed a counter affidavit. 4. Heard both sides. The case of the applicant was that they have started their business in the year 1962. They are the exporter and supplier of Atta, Maida, Sooji, Rava and Wheat and other food products. The trademark NAGA was adopted by the applicant's predecessors in the year 1988 from the family name Nagalakshmi and is being used continuously, extensively and uninterruptedly. They had applied for the trademark registration. Having applied on 18.03.2010, the trademark NAGA was advertised in Trademarks Journal on 01.11.2010. Subsequently, it was registered in the applicant's name in Clause 30 with the Registrar of Trademarks. The applicant is a part of the Naga group that was founded by one K.Sreenivasan Chettiar. Named after his wife Nagalakshmi, earlier the company was known as Nagalakshmi Flour Mills Private Limited which was incorporated on 11.7.1973. There were similar units in the group such as Sasi Leather Shoes Private Limited, which was given rename as Naga Leather Private Limited, Naga Oil Mills company Limited, Vega Marketing Limited and Naga Overseas Private Limited, etc. A scheme of amalgamation was also made in the company petition. The word Naga has been the core of every business enterprises of the applicant's family. As a result of the goodwill earned by them, they are using NAGA brand. A scheme of amalgamation was also made in the company petition. The word Naga has been the core of every business enterprises of the applicant's family. As a result of the goodwill earned by them, they are using NAGA brand. They had also spend considerable amount in advertising. From the year 1995 to 2012m they have spent about Rs.3,26,22,396/-. 5. But, however the respondents' recent use of the similar trademark AAGA for marketing similar / cognate / allied goods such as Puttu Flour, Rava Dosa Flour, Idli, Dosa Flour, Corn Flour, Asafoetida, all varieties of spice powders, Masala powders, chutney powder, Oats and other products were found to be in circulation in the market and they were marked by Naga Industries. But the first respondent criminally imitating the applicant's trademark NAGA in a deceptively similar manner by use of the mark AAGA and also the trading style of Naga Limited to sound similar as Naga Industries. The method adopted by the respondents is clearly suggestive of their attempts to make an illegal profit at the expenses of the applicant's reputation. The act of the respondents is clearly mischievous and fraudulent with deliberate malafide intention using deceptively similar trademark. Becoming aware of the registered trademark in October, 2011, they had caused a cease and desist notice. Though it was received by the respondents, they have not given any reply. The first respondent also had filed two trademark applications under Clause 30 for registering the trademark as AAGA (RICE) IDLY FLOUR on 29.7.2011 and the trade mark AAGA on 24.08.2011. The applicant has right to oppose the same. The catchy word NAGA is being infringed by just substituting the first alphabet 'N' by 'A' which is phonetically, visually and structurally similar. It is under these circumstances, the relief was sought for as set out above. 6. In the common counter affidavit filed by the respondents, it was stated that in the year 1985, his uncle A.Nagarajan had started a business of manufacturing and selling of food products such as Semia, Atta, Appalam, puttu Flour, Rava dosa Flour, Idli flour, Samba Rava, etc., in the name of Krishna Traders, Dindigul under the branch name "ANIL". In the year 1990, his father A.Gangatharan had joined the business and on his retirement, the respondents took his place. In the year 1990, his father A.Gangatharan had joined the business and on his retirement, the respondents took his place. In the year 2006, he along with his uncle A.Nagarajan had started a partnership firm under the name and style of "NAGA Industries". After the start of Naga industries, they are selling various food products, such as Appalam, Idly flour, Puttu flour and Rava Dosa Flour, which were till then manufactured and marketed by Krishna Traders, were manufactured and marketed by Naga Industries. The Naga Industries got its name from his uncle's name Nagarajan. The brand name ANIL was registered in the name of his uncle. The mark 'ANIL' is well known and popular. They had spent huge amounts for advertisements. 7. It was further stated that initially the trademark Anil was used both by Krishna Traders and Naga Industries. But pursuant to the family arrangement, his uncle had retired from the partnership and that the Naga Industries became the proprietary concern. Therefore, he had changed the trademark and started using the trademark AAGA based on the initials of three generations of family, i.e., grandfather, his father and himself. The alphabet 'A' was adopted from the grandfather's name Alagarswamy, the alphabets 'A' and 'G' were adopted from his father's name A.Gangatharan and the last 'A' stands the applicant's name Anbukkarasan. On 10.04.2011, he had organized a function to launch his new mark 'AAGA' for his products. He had invited all prominent persons and dealers. It was conducted in N.S.Community Hall, Dindigul. There were 300 persons who had attended the function. Advertisements were also made in several media. The mark AAGA was adopted with honest and bonafide intention and also with the full knowledge of the applicant as he is also carrying on his business only at Dindigul. Though the applicant was aware of the fact from 2006, but no objection was made. The adoption of the trademark was honest and with bonafide reason and was well advertised. After the applicant sent the notice, the respondent's uncle had contacted the applicant and explained the rational behind the use of the trademark. There is no phonetical and visual similarity. Right from April, 2011, after changing over the mark Anil, the respondents have been openly and honestly using the trademark AAGA. There is no prima facie case and balance of convenience for the grant of an interim order was also not available. 8. There is no phonetical and visual similarity. Right from April, 2011, after changing over the mark Anil, the respondents have been openly and honestly using the trademark AAGA. There is no prima facie case and balance of convenience for the grant of an interim order was also not available. 8. Mr.K.Rajasekaran, learned counsel appearing for the applicant / plaintiff as part of his legal submission, referred to a judgment of the Supreme Court in Midas Hygiene Industries (P) Ltd. v. Sudhir Bhatia reported in (2004) 3 SCC 90 for contending that in case of infringement of trademark, normally an injunction must follow and that mere delay in bringing an action is not sufficient to defeat the grant of injunction in such cases. 9. He also referred to a judgment of the Supreme Court in CadilaHealth Care Ltd. v. Cadila Pharmaceuticals Ltd., reported in (2001) 5 SCC 73 for contending that in an action for passing off on the basis of unregistered trademark generally for deciding the question of deceptive similarity the following factors were set out in paragraph 35 of judgment, which reads as follows: "35.Broadly stated, in an action for passing-off on the basis of unregistered trade mark generally for deciding the question of deceptive similarity the following factors are to be considered: (a) The nature of the marks i.e. whether the marks are word marks or label marks or composite marks i.e. both words and label works. (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. (g) Any other surrounding circumstances which may be relevant in the extent of dissimilarity between the competing marks." In the same judgment, he also referred to paragraph 19 to contend that the principles of phonetical similarity cannot be jettisoned out from consideration. 10. The learned counsel further referred to a judgment of the Supreme Court in LaxmikantV. (g) Any other surrounding circumstances which may be relevant in the extent of dissimilarity between the competing marks." In the same judgment, he also referred to paragraph 19 to contend that the principles of phonetical similarity cannot be jettisoned out from consideration. 10. The learned counsel further referred to a judgment of the Supreme Court in LaxmikantV. Patel v. Chetanbhai Shah reported in (2002) 3 SCC 65 for contending that an action for passing off will lie wherever the defendant company's name or its intended name is calculated to deceive and to divert business from the plaintiff or to cause confusion between the two businesses. Where there is probability of confusion in the business, an injunction will have to be granted even though the defendant adopted the name innocently. The learned counsel also referred to the following paragraph found in paragraph 16 which reads as follows : "16. here was no delay in filing the suit by the plaintiff. The plaintiff filed the suit with an averment that the defendants were about to commit an injury to the plaintiff. The defendants took a plea that they had already commenced the business with the offending trade name without specifying actually since when they had commenced such business. This has to be seen in the background that the defendants' business earlier was admittedly being carried on in the name and style of Gokul Studio. The commencement of such business by the defendants could therefore have been subsequent to the institution of the suit by the plaintiff and before the filing of the written statement by the defendants. In such a situation, on the plaintiff succeeding in making out a prima facie case, the court shall have to concentrate on the likelihood of injury which would be caused to the plaintiff in future and simply because the business under the offending name had already commenced before the filing of the written statement or even shortly before the institution of the suit would not make any difference and certainly not disentitle the plaintiff to the grant of ad interim injunction." 11. The learned counsel further referred to another judgment of the Supreme Court in Power Control Appliances v. Sumeet Machines (P) Ltd., reported in (1994) 2 SCC 448 to contend that in such matters, acquiescence pleaded will not arise and the acquiescence of the trademark must be such as to lead to an inference of a licence sufficient to create a new right in the defendant. It is settled principle of law relating to trademark, there can be only one mark and once source and one proprietor. The following passage found in paragraph 41 may be usefully extracted below : "41. It is a settled principle of law relating to trade mark that there can be only one mark, one source and one proprietor. It cannot have two origins. Where, therefore, the first defendant-respondent has proclaimed himself as a rival of the plaintiffs and as joint owner it is impermissible in law. Even then, the joint proprietors must use the trade mark jointly for the benefit of all. It cannot be used in rivalry and in competition with each other." 12. The counsel further referred to a judgment of the Delhi High Court in Larsen and Toubro Limited Vs. M/s.Lachmi Marain Traders and others reported in to contend that if there is likelihood of deception of confusion arising, is the matter of decision by the court. 13. He further referred to an another judgment of the Delhi High Court in MRF Limited Vs. NR Faridabad Rubbers reported in for contending that even though there are thousands of words in English, phonetical similarity can be a ground for granting an injunction. 14. A reference was also made to a division bench judgment of this Court in WITCO (India) Pvt. Ltd., Vs. NITCO reported in 2010-1-LW.82, wherein this court dealt with the similarity between WITCO and NITCO and in such case where the intention of using phonetically similar name was not bona fide, an injunction can be granted. 15. The learned counsel further referred to a judgment of the Supreme Court in Mahendra& Mahendra Paper Mills Ltd. v. Mahindra & Mahindra Ltd., reported in (2002) 2 SCC 147 = AIR 2002 SC 117 , wherein the term "Mahendra and Mahendra" and "Mahindra and Mahindra" were considered to be phonetically similar and it may create an impression of connection with the plaintiff group and hence injunction was granted. 16. 16. Countering these arguments, Mr.T.K.Ramkumar referred to Section 35 of the Trade Marks Act, 1999, which reads as follows: "35.Saving for use of name, address or description of goods or services.-Nothing in this Act shall entitle the proprietor or a registered user of a registered trade mark to interfere with any bona fide use by a person of his own name or that of his place of business, or of the name, or of the name of the place of business, of any of his predecessors in business, or the use by any person of any bona fide description of the character or quality of his goods or services." On the strength of the above provisions, he contended that he is a bonafide user of the mark. 17. The learned counsel for the respondent placed reliance upon a judgment of this court in Messrs.Devidoss& Co. Vs. Alathur Abboyee Chetty & Co. reported in 1940 (2) MLJ 793 for contending that normally delay in simplicitor may be no defence in a suit for infringement of the trademark. But there are decisions to indicate that if the trader allows a rival trader to expend money over a considerable period to build up the business with the aid of the mark similar to his own, he will not be allowed to stop his rival's business. If he was permitted to do so, great loss will be caused not only to the rival trader but to those who depend on his business for their livelihood. 18. He further referred to a judgment of the Supreme Court in AmritdharaPharmacy v. Satya Deo Gupta reported in (1963) 2 SCR 484 = AIR 1963 SC 449 , wherein the Supreme Court held that the trademark is the whole thing and whole word has to be considered. There can be monopoly over the word used by the petitioner. In that case, the question of acquiescence was also considered. In paragraph 13, it was observed as follows : "13. We now go to the second question, that of acquiescence. Here again we are in agreement with the Registrar of Trade Marks, who in a paragraph of his order quoted earlier in this judgment has summarised the facts and circumstances on which the plea of acquiescence was based. The matter has been put thus in Halsbury'sLaws of England, Vol. 32, 2nd Edition) p. 656-57, para 966. Here again we are in agreement with the Registrar of Trade Marks, who in a paragraph of his order quoted earlier in this judgment has summarised the facts and circumstances on which the plea of acquiescence was based. The matter has been put thus in Halsbury'sLaws of England, Vol. 32, 2nd Edition) p. 656-57, para 966. “‘If a trader allows another person who is acting in good faith to build up a reputation under a trade name or mark to which he has rights, he may lose his right to complain, and may even be debarred from himself using such name or mark. But even long user by another, if fraudulent, does not affect the plaintiff's right to a final injunction; on the other hand prompt warning or action before the defendant has built up any goodwill may materially assist the plaintiff's case.” We do not think that there was any fraudulent user by the respondent of his trade name “Lakshmandhara”. The name was first used in 1923 in a small way in Uttar Pradesh. Later it was more extensively used and in the same journals the two trade marks were publicised. The finding of the Registrar is that the appellant and its agents were well aware of the advertisements of the respondent, and the appellant stood by and allowed the respondent to develop his business till it grew from a small beginning in 1923 to an annual turnover of Rs 43,000 in 1949. These circumstances establish the plea of acquiescence and bring the case within sub-section (2) of Section 10, and in view of the admission made on behalf of the respondent that his goods were sold mainly in Uttar Pradesh, the Registrar was right in imposing the limitation which he imposed." 19. The counsel also referred to a judgment of the Supreme Court Power Control Appliances v. Sumeet Machines (P) Ltd., reported in (1994) 2 SCC 448 (cited by the applicant) for contending that interlocutory remedy is intended to preserve status quo and in paragraph 35, the Supreme Court had quoted with approval the earlier judgment in Wander Ltd.'s case, which is as follows: "35. Again in Wander Ltd. v. AntoxIndia P. Ltd. at page 731 to which decision one of us (M.N. Venkatachaliah, J., as he then was) was a party it was stated thus: (SCC pp. Again in Wander Ltd. v. AntoxIndia P. Ltd. at page 731 to which decision one of us (M.N. Venkatachaliah, J., as he then was) was a party it was stated thus: (SCC pp. 73132, para 9) “Usually, the prayer for grant of an interlocutory injunction is at a stage when the existence of the legal right asserted by the plaintiff and its alleged violation are both contested and uncertain and remain uncertain till they are established at the trial on evidence. The court, at this stage, acts on certain well settled principles of administration of this form of interlocutory remedy which is both temporary and discretionary. The object of the interlocutory injunction, it is stated: ‘... is to protect the plaintiff against injury by violation of his rights for which he could not adequately be compensated in damages recoverable in the action if the uncertainty were resolved in his favour at the trial. The need for such protection must be weighed against the corresponding need of the defendant to be protected against injury resulting from his having been prevented from exercising his own legal rights for which he could not be adequately compensated. The court must weigh one need against another and determine where the “balance of convenience” lies.’ The interlocutory remedy is intended to preserve in status quo, the rights of parties which may appear on a prima facie case. The court also, in restraining a defendant from exercising what he considers his legal right but what the plaintiff would like to be prevented, puts into the scales, as a relevant consideration whether the defendant has yet to commence his enterprise or whether he has already been doing so in which latter case considerations somewhat different from those that apply to a case where the defendant is yet to commence his enterprise, are attracted.” 20. Thereafter, he referred to a judgment of the Delhi High Court in B.L. and Co. and others Vs. Pfizer Products Incl. reported in 93 (2001) DLT 346, wherein the Delhi High Court had upheld that the delay in applying for interlocutory relief is a serious matter and in paragraph 17, the Delhi High Court had observed as follows: "17. Thereafter, he referred to a judgment of the Delhi High Court in B.L. and Co. and others Vs. Pfizer Products Incl. reported in 93 (2001) DLT 346, wherein the Delhi High Court had upheld that the delay in applying for interlocutory relief is a serious matter and in paragraph 17, the Delhi High Court had observed as follows: "17. As regards the delay in institution of the suit and its effect for the purpose of grant of ex parte restraint, the settled legal position is that while the delay in institution of a suit for an action for passing off may not be fatal, it is one of the important and relevant considerations before granting an ex parte/ interlocutory injunction. Reference in this regard is invited to the "THE LAW OF PASSING-OFF" by Christopher Wadlow. Learned Author while dealing with the motions of interlocutory relevance has observed as under:- "Delay in applying for interlocutory reliefs is a very serious matter. As a rule of thumb, delay of up to about a month, or perhaps six weeks, generally has no adverse effect on an inter partes application and delay of up to twice that period need not be fatal if it can be explained and the plaintiff's case is otherwise strong. On an ex parte application even delay of a few days can be critical. Unjustified delay of more than a few months is almost always fatal to the plaintiff's case, even though delay of this order has no effect on the plaintiff's rights at trial. Unlike many of the issues which can arise on motion, the existence of delay does not normally admit or much argument. Delay, if present, is therefore a short, safe and simple basis for refusing relief. This means that applications for interlocutory injunctions in which there is significant delay are unlikely even to get as far as a hearing, and those that do are quite likely to be refused without going into the merits or the balance of convenience." 21. In the light of the rival submissions, it has to be seen whether the applicant has made out any prima facie case for the grant of an injunction. The contention that the terms "NAGA" and "AAGA" are phonetically sound similar does not stand to reason. In the light of the rival submissions, it has to be seen whether the applicant has made out any prima facie case for the grant of an injunction. The contention that the terms "NAGA" and "AAGA" are phonetically sound similar does not stand to reason. Secondly, the respondent has been in the business from the year 2006 and even new brand was well advertised as per the documents filed. There was no opposition by the applicant. They had also spent considerable amount for advertising the said trademark. Only in the year 2011, the applicant, who incidentally belonged to the same Dindigul area, had sent the legal notice and thereafter filed the present suit. 22. In the present case, apart from the fact that there is no similarity between the two trademarks, even the delay in coming to this court is also the factor which can be weighed by this court for not granting an injunction. The contention of the respondents that they have been openly and honestly using their trademark in their business also cannot be rejected at the outset. Further, the products that have been sold are also not same. Therefore, there is no confusion that the persons will go to the market to buy the respondents' product thinking that they are actually buying the products marketed by the applicant. 23. In view of the above, there is no case made out for continuing the injunction. Hence both the applications will stand dismissed. No costs.