Research › Search › Judgment

Bombay High Court · body

2012 DIGILAW 966 (BOM)

Nirlep Appliances v. Gautam Metals

2012-05-08

S.C.DHARMADHIKARI

body2012
Judgment : This is a Notice of Motion for interim reliefs in a suit seeking a permanent injunction against the Defendants restraining them from infringing the Plaintiff's registered trade mark bearing No.457876 in class 21, No.635066 in class 09, Nos.932084, 1063686, 1084948 and 1226390 all in class 21 by using the impugned trade mark NIRLEP and/or any other trade mark deceptively similar to the Plaintiff's registered trade mark NIRLEP upon or in respect of mixer, juicer, grinder, hot plate, hand blender and/or similar goods. Prayer clause (b) of this suit is to restrain passing off and by prayer clause (c), damages to the extent of Rs.10 lacs have been claimed. 2. It is the case of the Plaintiff that it is a company registered under the Indian Companies Act, 1956 having its registered office at B5, MIDC, Station Road, Aurangabad-431005. The Plaintiff and its predecessors in business are old, established and well reputed manufacturers of and traders in inter alia Kitchen Containers, Cooking Utensils, Pressure Cookers, Enamel Wares, Gas Lighters, Gas Stoves, Non Stick Fry Pans, Tawas, Kadhais, etc.. The Plaintiffs are also carrying on business of retailing including online retailing and running and managing chain of shops. 3. It is stated that the Defendant No.2 claims to be the proprietor of the Defendant No.1. The Defendants are carrying on the business of manufacturing and trading in inter alia mixer, juicer, grinders, blender and electric hot plates. 4. It is the case of the Plaintiffs that in or about 1968, one M/s Uma Sons Equipment & Accessories, a partnership firm carrying on its business at 1178, Narayan Cottage, G.D.Ambekar Marg, Mumbai started manufacturing and trading in Non Stick Cookware under the trade mark NIRLEP. In the year 1969, the said M/s Uma Sons Equipment & Accessories hived off its said business to its sister partnership firm M/s Silverlight Industries carrying on its business at the same place and the said M/s Silverlight Industries continued the said business and use of the trade mark NIRLEP till 1973. In the year 1969, the said M/s Uma Sons Equipment & Accessories hived off its said business to its sister partnership firm M/s Silverlight Industries carrying on its business at the same place and the said M/s Silverlight Industries continued the said business and use of the trade mark NIRLEP till 1973. It is stated that in the year 1973, the partners of said M/s Silverlight Industries and their family members incorporated Silverlight Nirlepware Industries Private Limited, a private limited company under the Indian Companies Act, 1956 to acquire and take over as a going concern the business of manufacturing and selling Non Stick Cookware under the trade mark NIRLEP carried on by M/s Silverlight Industries together with all the assets and liabilities thereof and accordingly, pursuant to an agreement by and between the said Company and M/s Silverlight Industries, the said Company acquired and took over the said business of M/s Silverlight Industries together with all the assets and liabilities thereof and continued to expand the said business. In this behalf, Annexure-A to the plaint is relied upon which is a copy of Memorandum and Articles of Associations of Silverlight Nirlepware Industries Private Limited. It is stated that Silverlight Nirlepware Industries Private Limited was distributing its goods bearing the trade mark NIRLEP through its sister partnership firm M/s Aryan Traders. 5. The Plaintiffs stated that on or about 16th July, 1979 the said Silverlight Nirlepware Industries Private Limited, in view of shortage of manufacturing capacity and with a view to increase production of its goods bearing the trade mark NIRLEP, promoted yet another company named Duraware Private Limited. It is stated that in or about 1981, the said Duraware Private Limited, under a licence from Silverlight Nirlepware Industries Private Limited, started manufacturing and selling the said goods under the trade mark NIRLEP. The licensee Company like the Licensor Company was distributing the goods bearing the trade mark NIRLEP through the said M/s Aryan Traders. This continued till the year 1988. It is stated that in the year 1988-89 the said Silverlight Nirlep-ware Private Limited and Duraware Private Limited started distributing their goods bearing the trade mark NIRLEP through their yet another sister partnership firm named M/s Nirlep Distributors, Aurangabad. This continued till about the year 1995. This continued till the year 1988. It is stated that in the year 1988-89 the said Silverlight Nirlep-ware Private Limited and Duraware Private Limited started distributing their goods bearing the trade mark NIRLEP through their yet another sister partnership firm named M/s Nirlep Distributors, Aurangabad. This continued till about the year 1995. Since 19961997, the distribution of the goods bearing the trade mark NIRLEP manufactured by the said two companies was, however, channelized through Duraware Private Limited. It is stated that in the year 2000, Silverlight Nirlepware Private Limited and Duraware Private Limited contemplated merger of their respective businesses to give synergetic effect. However, a formal application for merger of Silverlight Nirlepware Private Limited with Duraware Private Limited was made on 30th June, 2004 to this Court. Pursuant to the Company Petition No.637/2004 connected with Company Application No.125/2004 and to an order dated 25th February, 2005 passed thereon, the said Silverlight Nirlepware Private Limited merged with Duraware Private Limited. Reliance is placed on Annexure B which is copy of the order dated 25th February, 2005 passed by this Court. It is stated that thereafter, Duraware Private Limited continued to carry on the said business of manufacturing and selling of the goods bearing the trade mark NIRLEP. On or about 22nd June, 2005 the said Duraware Private Limited changed its name to Nirlep Appliances Private Limited and on 24th November, 2005 the said Nirlep Appliances Private Limited changed its name to Nirlep Appliances Limited (Plaintiff herein). Annexures C-1 and C-2 to the plaint are copies of Certificates of Incorporation. 6. It is the case of the Plaintiff that since inception the Plaintiff and/or its aforesaid Licensees have been openly, regularly, continuously and extensively using the trade mark NIRLEP upon and in respect of initially Non Stick Cookware and later other goods as more particularly stated in paragraph 1 of the Plaint. It is claimed that during all these years the Plaintiff and/or its Licensees and/or its distributors have effected large sales of the goods bearing the trade mark NIRLEP. They have also taken efforts to popularize their goods bearing the trade mark NIRLEP and expended substantial sums of money on sales promotion/ advertising and publicity. It is claimed that during all these years the Plaintiff and/or its Licensees and/or its distributors have effected large sales of the goods bearing the trade mark NIRLEP. They have also taken efforts to popularize their goods bearing the trade mark NIRLEP and expended substantial sums of money on sales promotion/ advertising and publicity. The statements of annual sales and sales promotional/ advertising/ publicity expenses right from the year 1973 have been set out at pages 5 to 7 of the plaint and it is submitted that the certificates are issued by the Chartered Accountants and Auditors certifying the correctness of the sales figures, copies of which are annexed at Annexures D-1 to D-4. Copies of specimen invoices for past 12 years, corporate gift catalogue and publicity material are also annexed at Annexures E. 7. It is then submitted that due to superior quality and utility of its goods bearing trade mark NIRLEP as also large and ready sales of the said goods and wide publicity given to the goods and the trade mark, the trade mark NIRLEP has acquired immense reputation and goodwill and is being exclusively associated in the course of the trade with the Plaintiff. The Plaintiff has received awards/certificates/ accolades from various bodies/ authorities in respect of its business of manufacturing and trading the goods bearing the trade mark NIRLEP. It is stated that in the year 1971 the Plaintiff was awarded G.S. Parkhe Industrial Merits Prize. In 1973 the Plaintiff entered the export market and exported 25000 pieces of Nirlep Pan to Poland and as a result in 1980-1981 the Plaintiff was awarded Certificate of Export Recognition. The Plaintiff is also accredited with the Quality Certification "ISO 9001-2000 of AS/NZS". Copies of awards/ certificates are annexed at Annexures F-1 to F-3. 8. It is then contended that on or about 01st August, 1986, Silverlight Nirlepware Industries Private Limited applied for and secured registration of the trade mark NIRLEP (word) under the Trade Marks Act under registration No.457876 in Class 21 in respect of Kitchen Containers (not of precious metal or coated therewith), (non-electric) cooking utensils, (non-electric) cooking saucepans. On or about 27th July, 1994, Silverlight Nirlepware Industries Private Limited applied for and secured registration of the trade mark NIRLEP (word) under the Trade Marks Act under Registration No.635066 in Class 09 in respect of electrical appliances. On or about 27th July, 1994, Silverlight Nirlepware Industries Private Limited applied for and secured registration of the trade mark NIRLEP (word) under the Trade Marks Act under Registration No.635066 in Class 09 in respect of electrical appliances. Both the aforesaid registrations have been renewed from time to time and are valid and subsisting. Copies of these registrations are at Annexures G-1 and G-2 to the plaint. It is stated that the Plaintiff through its Attorneys has made an application in Form TM-24 before the Registrar of Trade Marks dated 10th February, 2007 to bring on record its name as subsequent proprietor of the trade mark NIRLEP. The said application is pending. 9. It is then submitted that between June, 2000 and August, 2003 in contemplation of merger of the said Silverlight Nirlepware Industries Private Limited with Duraware Private Limited and with consent of Silverlight Nirlepware Industries Private Limited, the applications were made by the said Duraware Private Limited for securing registrations of the trade marks NIRLEP, NIRLEP SELECT, NIRLEP VAJRA and NIRLEP VAJRA JOY and accordingly, it secured the registrations and particulars thereof are set out in paragraph 8. These registrations are valid and subsisting having been renewed from time to time. The requisite documents to support this submission have been referred to and it is stated that even the applications to change the names of proprietors from Duraware Private Limited to Nirlep Appliances Private Limited and thereafter, to Nirlep Appliances Limited have been made, which applications are pending. 10. It is stated that in or about August, 2007 the Plaintiff decided to venture into retailing business, both Offline and Online and therefore, made an application for registration of the trade mark "nirleponline.com" and accordingly, secured registration of the said trade mark. The details in relation to the registration of the trade mark "nirleponline.com" are referred to in paragraph 9 of the plaint. Thus, it is stated that the Plaintiffs have acquired both, common law as also statutory rights to the exclusive use of the trade mark NIRLEP upon and in relation to the aforesaid goods as also similar goods. 11. In paragraphs 11 to 16 of the plaint, the Plaintiffs have given details of several steps and measures including legal proceedings initiated by them to protect their exclusive right to use the trade mark NIRLEP. 11. In paragraphs 11 to 16 of the plaint, the Plaintiffs have given details of several steps and measures including legal proceedings initiated by them to protect their exclusive right to use the trade mark NIRLEP. It is stated that the Plaintiffs have been vigilant in safeguarding and protecting the trade mark NIRLEP. 12. It is stated in paragraphs 17 and 18 of the plaint that the Plaintiffs discovered that the Defendants made an application, which was advertised, seeking registration of the trade mark NIRLEP in respect of mixer, grinder, juicer, hot plate and hand blender. Upon that application being noticed pursuant to the advertisement dated 08.07.2003, on 31.07.2003 a notice of opposition was filed by the Plaintiffs and thereafter, the Registrar of Trade Marks was requested to take up the matter. It is stated that the Defendants have not filed the evidence in support of their application. 13. In paragraphs 18 and 19 this is what is stated:- "18. In their said application(s) for registration of the trade mark NIRLEP the Defendants have claimed that they have been using the said trade mark since about 1990. However, until recently, the Plaintiff had not come across the goods of the Defendants bearing the trade mark NIRLEP. In their pleadings and evidence filed before the Registrar of Trade Marks, the Plaintiff has, therefore, categorically disputed the alleged user of the trade mark NIRLEP by the Defendants since 1990. However, recently, the Plaintiff has come across a product literature issued and published by the Defendants in respect of Mixers, Grinders, Juicers, Hand Blenders and Hot Plates bearing the trade mark NIRLEP. Hereto annexed and marked Exhibit S-1 is a copy of the said product literature issued and published by the Defendants. The said product literature/ brochure revealed that the Defendants are offering and exhibiting for sale the aforesaid goods under the trade mark NIRLEP. However, the price list published by the Defendants does not show use of the trade mark NIRLEP by the Defendants in respect of Mixers, Grinders, Juicers, Hot Plates and Hand Blenders, though it shows that the Defendants have been manufacturing and/or trading in Non Stick Cookwares under other brands such as Mohini, Pride and Pooja. Hereto annexed and marked Exhibit S-2 is a copy of the said price list published by the Defendants." "19. Hereto annexed and marked Exhibit S-2 is a copy of the said price list published by the Defendants." "19. The Plaintiff says and submits that the Defendants must have and/or were expected to have and/or ought to have conducted a search of Register of Trade Marks to ascertain whether the impugned trade mark NIRLEP is already registered in respect of the same or similar goods. The Defendants also must have and/or were expected to have and/or ought to have conducted market survey to ascertain whether the impugned trade mark NIRLEP is being used by another manufacturer and/or marketer of the same or similar goods. Had the Defendants conducted such search or market survey, the Defendants would have noticed the existence of the Plaintiff's well known trade mark NIRLEP used in respect of its aforesaid goods and would have further learnt about the immense popularity of the Plaintiff's trade mark NIRLEP. The Plaintiff says and submits that the Defendants cannot feign ignorance of the existence and popularity of the Plaintiff's trade mark NIRLEP when the Plaintiff has been openly, continuously and extensively using the trade mark NIRLEP in respect of its said goods since the year 1968. The Plaintiff says and submits that the Defendants have knowingly and deliberately adopted the impugned trade mark NIRLEP with a view to trade upon immense and enviable reputation and goodwill acquired by the Plaintiff in its trade mark NIRLEP and thereby make illicit gains." 14. In these circumstances the Plaintiffs alleged in paragraphs 20 and 21 that these acts of the Defendants amount to using the trade mark NIRLEP which user is identical with or deceptively similar to the Plaintiff's registered trade mark NIRLEP. Even the goods that are being marketed and sold under the trade mark NIRLEP are Kitchenwares and identical goods which are included in Classes 09 and 21 and even consumers and trade channels are same. In such circumstances what the Plaintiffs allege in paragraph 21 is that the aforestated acts of the Defendants amount to infringing and passing of, for which they have approached this Court. It is then stated in paragraphs 25 and 26 as under:- "25. In such circumstances what the Plaintiffs allege in paragraph 21 is that the aforestated acts of the Defendants amount to infringing and passing of, for which they have approached this Court. It is then stated in paragraphs 25 and 26 as under:- "25. The Plaintiff submits that pending the hearing and final disposal of the suit it is absolutely just, necessary and proper that the Defendants by themselves, their proprietors, partners, servants, agents, stockists, distributors and dealers be restrained by a temporary order and injunction of this Hon'ble Court from infringing the Plaintiff's registered trade mark bearing No.457876 in Class 21, No.635066 in Class 09, Nos.932084, 1063686, 1084948 and 1226390 all in Class 21 by using the impugned trade mark NIRLEP and/or any other trade mark deceptively similar to the Plaintiff's registered trade mark NIRLEP in respect of mixer, juicer, grinder, hot plate, blender or same or similar goods as those in respect of which the Plaintiff has secured aforesaid registrations or in any other manner whatsoever and/or from manufacturing, marketing, advertising and/or otherwise dealing in mixer, juicer, grinder, hot plate and hand blender or any other goods similar to the Plaintiff's aforesaid goods bearing the trade mark NIRLEP and/or any other trade mark deceptively similar to the Plaintiff's trade mark NIRLEP so as to pass off or enable others to pass off the Defendants' goods as and for Plaintiff's well known goods or in any other manner whatsoever." "The Plaintiff submits that unless the aforesaid reliefs are granted, grave and irreparable loss and injury will be caused to the Plaintiff and pecuniary compensation will not suffice. The Plaintiff says and submits that the impugned trade mark has been fraudulently adopted by the Defendants with the sole view to mislead the members of the trade and public. The Plaintiff says and submits that the said conduct of the Defendants is dishonest and there are no equities in favour of the Defendants. The Defendants were aware of and/or must have been aware of the Plaintiff's trade mark NIRLEP and its popularity in view of the extensive sales of the Plaintiff's goods and services under the said trade mark throughout India. The balance of convenience is in favour of the Plaintiff. The Plaintiff therefore submits that it is entitled to interim and ad-interim orders. Further, the interests of consuming public should be protected by granting order of adinterim/ interim injunction." "26. The balance of convenience is in favour of the Plaintiff. The Plaintiff therefore submits that it is entitled to interim and ad-interim orders. Further, the interests of consuming public should be protected by granting order of adinterim/ interim injunction." "26. The Plaintiff says and submits that though it is aware of the application for registration of the impugned trademark made by the Defendants since about 30th October, 2002, and though the Defendants have claimed user of the impugned trade mark since the year 1990 in their trade mark application, the Plaintiff did not, until recently, come across the Defendants' goods bearing the impugned trade mark in the market. The Plaintiff, therefore, believed that the contest is only regarding registration of the impugned trade mark in the name of the Defendants. The Plaintiff further believed that once the Defendants became aware of the Plaintiff's objection to the registration of the impugned trade mark they would not use the impugned trade mark. The Plaintiff's said belief was confirmed by the fact that, until recently the Plaintiff had not come across the Defendants' goods bearing its impugned trade mark in the market. The Plaintiff further says and submits that as soon as it came to learn about the Defendants' goods bearing the impugned trade mark NIRLEP it has initiated the present legal proceedings for infringement and passing off. The Plaintiff says and submits that therefore there is no delay on the part of the Plaintiff in taking the present action. The Plaintiff says and submits that in any event, the Defendants were aware of the Plaintiff's trade mark NIRLEP and its popularity since the beginning and about the Plaintiff's objection to the use and registration of the impugned trade mark by the Defendants since the Defendants received copy of the Notice of Opposition filed by the Plaintiff to the Defendants' trade mark application No.543380 on or about 30th October, 2002. The Defendants are therefore using the impugned trade mark at their own peril and cannot claim any benefit of the alleged use of the impugned trade mark and on the basis thereof cannot set up the alleged user as a defense to the Plaintiff's present case." 15. It is on the aforestated allegations that the suit is filed and this application for interim injunction has been made. 16. It is on the aforestated allegations that the suit is filed and this application for interim injunction has been made. 16. A Written Statement has been filed by the Defendants in which the stand taken is that the suit is not maintainable as the Defendants have been using the mark since December, 1990 openly and extensively. It is stated that the application for registration of the trade mark was filed in or around January, 1991 by the Defendants. Thus, the Plaintiffs ought to have taken note of the user claimed by the Defendants which was from December, 1990. It is stated that the Plaintiffs should have made inquiries in December, 2002 atleast about the user of the Defendants. 17. It is stated that after the Opposition was filed by the Plaintiffs to the registration, the Defendants filed their counter statement. As per Rule 50 of the Trade Marks Rules, 2002, the Plaintiff was required to file its affidavit of evidence in support of its opposition. By its letter dated 13.10.2003, the Plaintiff chose not to file the same. The Defendants, therefore, filed their evidence as required under Rule 53. In these circumstances there is a false version by the Plaintiffs that they were not aware of the Defendants' existence or user in the market. The Defendants filed the evidence on or about 08th December, 2004 before the Trade Marks Registry in the opposition proceedings Bom 62608 to their Application No.543380 in Class 7. The Defendants have filed substantial evidence in the form of invoices, advertisements, artwork, bills of the year 2004, Government test and calibration reports, manufacturer certificates issued by the Government of Maharashtra, I.E. & L. Department, copies of all this have been relied upon and therefore, it is submitted that it is false to suggest that the Plaintiffs became aware of the Defendants' user only on the eve of or prior to the institution of the suit. 18. Consistent with the above stand and urging that there are several persons who have adopted the mark NIRLEP prior to the Plaintiffs in respect of the same goods manufactured and sold by the Plaintiffs, it is stated that the Plaintiffs cannot be said to be the sole proprietor of the trade mark NIRLEP. Reliance is placed upon the search reports. Consistent with the above stand and urging that there are several persons who have adopted the mark NIRLEP prior to the Plaintiffs in respect of the same goods manufactured and sold by the Plaintiffs, it is stated that the Plaintiffs cannot be said to be the sole proprietor of the trade mark NIRLEP. Reliance is placed upon the search reports. While denying the contents of the plaint and admitting that there has been opposition filed for the registration of the trade mark NIRLEP EASY MIX by the Defendants, it is stated that the goods of the Plaintiffs and Defendants are totally different and fall in different classes. Therefore, when the Defendants are using the mark for more than two decades without any objection, then, the Plaintiffs are estopped from objecting the Defendants' use of the mark. In paragraphs 22 and 23 of the Written Statement, this is what is stated:- "22. With reference to paragraph No.20 of the plaint, I say that the Defendants are using the mark "Nirlep Easy Mix" and not the mark "Nirlep". I submit that the added material as also the fact that the rival goods are different and the Defendant has been using the goods since 1990 openly and extensively, to the Plaintiff's knowledge, the fact that the Plaintiff is not the proprietor of the trade mark "Nirlep" has suppressed relevant facts from this Hon'ble Court and other facts set out above disentitle the Plaintiff to any relief. It is denied that the rival marks are identical/ deceptively similar. It is denied that the rival goods are sold through same trade channels and usually purchased and used by the same consumers, viz. housewives. It is denied that the use of the mark by the Defendant in respect of mixers, juicers, grinders, etc. being goods falling in Class 7, infringes the Plaintiff's registration in Classes 21 & 9. It is submitted that the Plaintiff's Trade Mark No.635066 in Class 9 Nos.932084, 1063686, 1084948 and 1226390 in Class 21 are all subsequent to the Defendant's use of the mark and hence the submission of the Plaintiff is not correct or tenable. Further, all the aforesaid registration as well as TM No.457976 in Class 21 are in respect of different goods. It is denied that the Plaintiff is entitled to any relief as claimed." "23. Further, all the aforesaid registration as well as TM No.457976 in Class 21 are in respect of different goods. It is denied that the Plaintiff is entitled to any relief as claimed." "23. With reference to paragraph No.21 of the plaint it is denied that the Plaintiff has acquired any reputation/goodwill in the mark "Nirlep". I say that the Plaintiff cannot be said to be the proprietor of the mark as there are several other persons who have applied for the TM "Nirlep" prior to the Plaintiff and who are also registered as is evident from Exhibit-4 hereto. Thus the Plaintiff cannot claim to have acquired any goodwill or reputation in the said mark. I deny that the mark has come to be extensively associated with the Plaintiff. Further, the Defendant has been using the mark since 1990 and has by such acquired an enviable reputation and goodwill in the mark in relation to the goods for which the Defendants are using it. It is denied that the rival goods are allied or cognate or complementary. It is denied that use by the Defendant will result in confusion or deception. I say that it is pertinent that there has been no confusion for over 21 years." "It is denied that the Defendants have deliberately adopted and used the impugned trade mark NIRLEP and are thereby misleading consumers and confusing and deceiving them into buying the Defendants' inferior quality goods as and for the Plaintiff's well known goods. It is denied that the Defendants' goods are of inferior quality. The allegations are brazen and without basis and unwarranted. It is denied that the Defendants have been passing off their goods as and for the Plaintiff's alleged well known goods and/or services. It is denied that the Plaintiff is entitled to a permanent order and injunction of this Hon'ble Court restraining the Defendants by themselves, their proprietors, partners, servants, agents, stockists, distributors and dealers from manufacturing, marketing, advertising and/or otherwise dealing in mixer, juicer, grinder, hot plate and hand blender or any other goods similar to the Plaintiff's aforesaid goods bearing the trade mark NIRLEP and/or any other trade mark deceptively similar to the Plaintiff's trade mark NIRLEP so as to pass off or enable others to pass off Defendants' goods as and for Plaintiff's well known goods and/or business or in any other manner whatsoever." 19. For these reasons, it is submitted that the suit be dismissed. 20. On identical lines, the Defendants have proceeded to file an affidavit in reply of Mr.Manilal H. Gala. It is not necessary to refer to each and every paragraph because substance of the same is akin or identical to the contents of the Written Statement. 21. To this lengthy affidavit in reply with several annexures, a rejoinder is filed by the Plaintiffs through its Managing Director in which it is stated that inspection of all the documents was not given by the Defendants. Even part inspection which was allowed, remained incomplete. In paragraph 7 of the rejoinder, the Plaintiffs specifically urged that just because the Plaintiffs came across the advertisement of the impugned trade mark in the Trade Marks Journal in 2002 and just because the Defendants claimed alleged user of the impugned trade mark since December, 1990, it does not mean that the said alleged user is proved or believed. The Plaintiffs have established their bonafides by opposing the Defendants' application for registration of the impugned mark as and when it was advertised in the Trade Marks Journal. It is stated that the Plaintiffs were not aware of the existence of the impugned trade mark till it came across the advertisement in Trade Marks Journal. At the time of filing of the Notice of Opposition, the Plaintiffs made inquiries in the market and despite their best efforts, they could not find the Defendants' goods bearing the impugned trade mark in the market. 22. It is contended that it is a well settled principle of the Trade Marks Law that once the Plaintiffs put the Defendants to notice that the Defendants' use of the impugned trade mark is violative of the Plaintiff's statutory or proprietory rights, then, any use of the trade mark by the Defendants subsequent to such notice cannot confer any advantage or benefit and the Defendants' user is at their own risk. The Plaintiffs have denied the turnover figures and it is urged that the Defendants have failed to support the same with the books of accounts, ledgers, etc.. Original of the said documents is also not produced. The figures have not been certified by the Chartered Accountant or Auditor and cannot be relied upon. Assuming without admitting the figures, it is stated that the Defendants have spent meager amount on advertisement and publicity. Original of the said documents is also not produced. The figures have not been certified by the Chartered Accountant or Auditor and cannot be relied upon. Assuming without admitting the figures, it is stated that the Defendants have spent meager amount on advertisement and publicity. On the other hand, it is clear from annual sales promotion expenses and annual sales figures of the Plaintiffs that the Plaintiffs have spent substantial sums and also incurred huge expenses. The invoices that are referred to in the reply affidavit and from the copies that are annexed, it is pertinent that the Defendants also deal in Kitchenware, water filter and pressure cooker which goods are identical with the goods of the Plaintiffs. Therefore, there is no question of the argument of difference in rival goods being accepted. The Plaintiffs have stated that the Defendants have not furnished in the reply the purported sales figures for the period 1990 to 2004. The Plaintiffs have pointed out that the sales figures for the year 2004-2005 at page 195 are completely different from those appearing at page 32 of the Affidavit in Reply of the Defendants. For all these reasons and while reiterating the contents of the plaint, the Plaintiffs pray that the interim reliefs be granted and the Notice of Motion be made absolute. 23. It is on the basis of all this material that I have heard Mr.Tulzapurkar, learned Senior Counsel appearing for the Plaintiffs and Mr.Kamat, learned counsel appearing for the Defendants. 24. Mr.Tulzapurkar, learned Senior Counsel appearing for the Plaintiffs, submitted that this is a clear case of infringement and passing off. He has invited my attention to the averments in the plaint and annexures thereto, to submit that the Plaintiffs have proved, prima facie, as to how from the year 1968 onwards the business under the trade mark NIRLEP has commenced. It commenced as pointed out in paragraph 3 of the plaint from 1968 and then was taken over by the partnership firm M/s Silverlight Industries. That entity continued the business and the use of the trade mark NIRLEP till 1973. From 1973, the partners of M/s Silverlight Industries and their family members incorporated Silverlight Nirlepware Industries Private Limited and thereafter, that company took over the business of manufacturing and selling Non Stick Cookwares as a going concern. That entity continued the business and the use of the trade mark NIRLEP till 1973. From 1973, the partners of M/s Silverlight Industries and their family members incorporated Silverlight Nirlepware Industries Private Limited and thereafter, that company took over the business of manufacturing and selling Non Stick Cookwares as a going concern. Subsequently, in the year 1979 M/s Silverlight Nirlepware Industries Private Limited promoted yet another company, namely, Duraware Private Limited. M/s Duraware Private Limited was duly licensed by M/s Silverlight Nirlepware Industries Private Limited from 1981 and the Licensee Company was distributing the goods bearing the trade mark NIRLEP through one M/s Aryan Traders. That continued till 1988. Thereafter, both Silverlight Nirlepware Private Limited and Duraware Private Limited started distributing their goods bearing the trade mark NIRLEP through yet another sister partnership firm named M/s Nirlep Distributors, Aurangabad. 25. Mr.Tulzapurkar has specifically relied upon paragraph Nos.3 to 5 of the plaint to show that the Plaintiffs have taken over the rights in the said trade mark NIRLEP from their predecessor in title under valid and legal documents including the order passed by the Company Court and by fresh certificates of incorporation. It is not as if the Plaintiffs cannot claim to be successor in title. Mr.Tulzapurkar relies upon paragraphs 6 and 7 of the plaint and certified true copies of the entries in the register of Trade Marks, which would evidence that the word mark NIRLEP is in relation to the goods falling in class 21 and the registration date is 01.08.1986. Mr.Tulzapurkar then relies upon device/label mark NIRLEP in relation to the goods falling in Class 9 in respect of electrical appliances which certificate is dated 27.07.1994 and the user claim is from 01.04.1992. 26. Mr.Tulzapurkar has relied upon other annexures to the plaint to show that all entities namely those referred to in the aforesaid paragraphs of the plaint had valid and authorized registration in their favour and it is not as if the mark NIRLEP could have been adopted or used by anybody other than them. The Plaintiffs have pointed out as to how they successfully resisted every attempt of infringement of their mark NIRLEP and passing off their goods which attempts were made by several entities in the market. Mr.Tulzapurkar emphasizes that the advertisement of the application made by the Defendants claims user from December, 1990 and the class of goods is same. The Plaintiffs have pointed out as to how they successfully resisted every attempt of infringement of their mark NIRLEP and passing off their goods which attempts were made by several entities in the market. Mr.Tulzapurkar emphasizes that the advertisement of the application made by the Defendants claims user from December, 1990 and the class of goods is same. The Plaintiffs have filed their Notice of Opposition and it is false to suggest that the Plaintiffs have not produced any evidence. What the Plaintiffs have indicated to the Registrar of Trade Marks by their letter dated 02.08.2010 (Annexure Q-3 to the plaint) is that they had filed a interlocutory petition on 10.12.2004 with the affidavit of Mr.Mukund Bhogale dated 07.12.2004 inter alia praying that the said affidavit be taken on record as evidence in support of the opposition. By their letter dated 14.01.2005 the Defendants' Attorneys objected to the said interlocutory petition contending that it is not maintainable. However, no order has been passed on the interlocutory petition. In the meanwhile, the Defendants had filed the evidence in support of their application and the Plaintiffs have filed their evidence in reply. The matter is ripe for final hearing. In these circumstances that it cannot be said that there is any waiver of the opposition as falsely claimed. 27. Mr.Tulzapurkar submits that what the Defendants are attempting is to show that there are several persons using the mark NIRLEP in the market. However, that is false on the own showing of the Defendants. My attention is invited to another application that was made by the Defendants on or about July, 2003 for registration of the trade mark NIRLEP in respect of mixer, grinder, juicer, hot plate and hand blender. Even that application was advertised and the Plaintiffs filed the Notice of Opposition dated 31.07.2003, copy of which is at Annexure R2 to the plaint. The Plaintiffs have also addressed a letter dated 02.08.2010 to the Registrar of Trade Marks, copy of which is at Annexure R-3 to the Plaint. It is stated that since the Defendants have not filed the evidence in support of the application, the Plaintiffs requested to set down the matter for hearing and final disposal. However, the Registrar of Trade Marks so far has not fixed any date of hearing and the matter is pending. It is stated that since the Defendants have not filed the evidence in support of the application, the Plaintiffs requested to set down the matter for hearing and final disposal. However, the Registrar of Trade Marks so far has not fixed any date of hearing and the matter is pending. The Plaintiffs have specifically opposed the registration and also denied the case of the Defendants that they have been using the trade mark NIRLEP since about 1990. It is stated that the Defendants are falsely alleging by relying on some product literature, but that product literature does not relate to all goods except mixer grinder. Even the price list is not in relation to the Defendants' products NIRLEP, but is of pressure cooker, hard anodised cookware and water filter and they are not in relation to and do not evidence the use of the trade mark NIRLEP. Mr.Tulzapurkar, therefore, submits that the version of the Defendants is totally false. 28. During the course of his argument Mr.Tulzapurkar has brought to my notice a letter dated 13.10.2003 which according to him takes care of the objections raised by the Defendants based on Rule 50 of the Trade Marks Rules, 2002. Mr.Tulzapurkar submits that the objection of the Defendants proceeds on complete misreading and misinterpretation of the Rules. What Rule 50 contemplates is that evidence in support of the opposition shall be filed within two months from the service of a copy of the counter statement or within such further period not exceeding one month in the aggregate thereafter as the Registrar may at request allow. Rule 50 further envisages that the opponent shall either leave with the Registrar such evidence by way of affidavit as he may desire to adduce in support of his opposition or shall intimate to the Registrar and to the Applicant in writing that he does not desire to adduce evidence in support of his opposition, but intends to rely on the facts stated in the Notice of Opposition. What is contemplated is that the Opponent shall deliver to the Applicant copies of any evidence that he leaves with the Registrar under Rule 50(1) and intimate the Registrar in writing of such delivery. It is only when no action is taken by the Opponent under Rule 50(1) within time mentioned therein, that he shall be deemed to have abandoned his opposition. It is only when no action is taken by the Opponent under Rule 50(1) within time mentioned therein, that he shall be deemed to have abandoned his opposition. In the instant case, there is no abandonment of the opposition because the letters dated 13.10.2003 and 02.08.2010 would demonstrate that neither the Plaintiffs have intimated that they do not wish to file the evidence in support of the opposition, but assuming that be the case, yet the letter dated 02.08.2010 would demonstrate that there is no abandonment of the opposition as falsely alleged. 29. Mr.Tulzapurkar has also relied upon the communication dated 18.10.2004 from the Trade Marks Registry, which is to both parties, intimating that TM-56 filed by the Opponents, namely, Plaintiffs is granted. The Plaintiffs wish to rely upon the statements and grounds of opposition contained in the Notice of Opposition. The matter was thereafter to proceed in terms of Rule 53 of the Trade Marks Rules, 2002. 30. Mr.Tulzapurkar, therefore, submits that there is no substance in the objection of abandonment of the opposition by the Plaintiffs and therefore, no presumption that there is acquiescence, can be drawn either. He submits that Rule 50 of the Trade Marks Rules, 2002 has been held to be directory and not mandatory and he places reliance upon a decision of the Gujarat High Court in the case of Wyeth Holdings Corporation and another vs Controller General of Patents, Designs and Trade Marks, reported in 2007 (34) PTC 1 (Guj.), in that behalf. 31. Thus, contending that a strong prima facie case is made out by the Plaintiffs, balance of convenience is in favour of the Plaintiffs on account of the conduct of the Defendants as the Defendants have copied the trade mark of the Plaintiffs and tried to cash on the goodwill and reputation of the Plaintiffs in the market, Mr.Tulzapurkar submits that there will be irreparable harm and injury caused to the Plaintiffs and it will not be in public interest to allow the parties like the Defendants to infringe the mark of the Plaintiffs. 32. 32. Mr.Tulzapurkar has relied upon the following decision in support of his above submissions:- (1) The judgment dated 08th February, 1994 passed by the Supreme Court in Civil Appeals Nos.2551, 2552 and 2553/1993 in the case of Power Control Appliances Company and others v/s Sumeet Machines Pvt. Ltd. (2) Wyeth Holdings Corporation and another v/s Controller General of Patents, Designs and Trade Marks, reported in 2007 (34) PTC 1 (Guj.). (3) Khoday Distilleries Limited v/s Scotch Whisky Association and others, reported in (2008) 10 SCC 723 . 33. On the other hand, Mr.Kamat, learned counsel appearing for the Defendants, has contended that if paragraph 16 of the plaint is perused carefully, it would be evident that the present application of the Plaintiffs cannot be granted as the Plaintiffs have acquiesced in the user of the mark NIRLEP by the Defendants. The Plaintiffs have given up their legal rights as their opposition stands abandoned because of non compliance with the requirement under Rule 50 of the Trade Marks Rules, 2002. Mr.Kamat submits that the Defendants are in the market from 1990 till 2002 and that is to the knowledge of the Plaintiffs. Even if the application for registration made by the Defendants is advertised in 20022003, yet the Notice of Opposition thereto has not been pursued, but abandoned by the Plaintiffs. In these circumstances there is gross delay and latches on their part in approaching this Court. Therefore, having allowed the Defendants to continue and to grow in business and by positive act of giving up legal right of opposition, so also, on account of gross delay and latches, the Plaintiffs are disentitled from claiming any discretionary and equitable reliefs much less an injunction. 34. Mr.Kamat submits that if the Plaintiffs have stood by and abandoned their opposition and for last more than 9 years the Defendants are in the market, the trade is increasing, then, this is definitely positive act and this can be said to be complete acquiescence. Mr.Kamat has, on the point of delay, invited my attention to the affidavit in reply and has contended that in paragraph 4 of the same a specific contention has been taken that the Plaintiffs became aware of the Defendants' use of the trade mark sometime in the year 2002. Mr.Kamat submits that in rejoinder to this affidavit in reply the contents of paragraph 4 are not denied. Mr.Kamat submits that in rejoinder to this affidavit in reply the contents of paragraph 4 are not denied. On the other hand, the Plaintiffs admit that it came across the advertisement of the impugned mark in 2002 under which the user is claimed by the Defendants from December, 1990. Therefore, this is a case of inordinate delay. This is not inconsequential or marginal delay, but unexplained and therefore, no equities can be claimed by the Plaintiffs. My attention is invited by Mr.Kamat to page 141 of the motion paper book which is annexure to the affidavit in reply of the Defendants. Mr.Kamat submits that this is an invoice of 22nd December, 1990. Nirlep Mixture Grinder was sold under this invoice. In these circumstances Mr.Kamat would submit that the Defendants have demonstrated that the user of their products is from December, 1990. Even promotional material, copy of which is at page 191 of the motion paper book, would evidence this fact. Mr.Kamat submits that the activities were thus going on from 1990 and to the knowledge of the Plaintiffs. Mr.Kamat, therefore, submits that on the ground of delay and acquiescence alone this Notice of Motion deserves to be dismissed. 35. Mr.Kamat has then relied upon Rule 50 of the Trade Marks Rules, 2002 and the language of sub-rule (2) to contend that there is no question of opposition now continuing as it is abandoned by the Plaintiffs and those facts have been brought to the notice of this Court. The facts and circumstances as brought to this Court's notice would demonstrate that the Notice of Opposition has not been pursued by the Plaintiffs and therefore, they are guilty of abandonment of the same. Once they abandoned their opposition, then, they cannot turn around and seek an injunction to virtually put the Defendants out of business. For all these reasons, Mr.Kamat submits that the Notice of Motion be dismissed. 36. Mr.Kamat has relied upon the following decision in support of his contentions:- (1) Sunrider Corporation, USA v/s Hindustan Lever Ltd. and another, reported in 2007 (35) PTC 388 (Delhi). (2) M/s Devidoss & Company v/s Alathur Abboyee Chetty & company, reported in 1940 Madras Law Journal Reports 793. (3) Macleods Pharmaceuticals Ltd. v/s Tidal Laboratories P. Ltd. reported in 2006(32) PTC 221 (Bombay). (4) M/s Shree Vardhman Rice & Gen Mills v/s M/s Amar Singh Chawalwala. (2) M/s Devidoss & Company v/s Alathur Abboyee Chetty & company, reported in 1940 Madras Law Journal Reports 793. (3) Macleods Pharmaceuticals Ltd. v/s Tidal Laboratories P. Ltd. reported in 2006(32) PTC 221 (Bombay). (4) M/s Shree Vardhman Rice & Gen Mills v/s M/s Amar Singh Chawalwala. Judgment dated 07.09.2009 passed by Supreme Court in Special Leave to Appeal (Civil) No.21594/2009. (5) Bajaj Auto Limited v/s TVS Motor Company Limited. Judgment passed by Supreme Court in Civil Appeal No.6309/2009. 37. While in rejoinder, Mr.Tulzapurkar strongly relied upon annexures to the affidavit in reply of the Defendants. Mr.Tulzapurkar submits that not only each of the invoices that are produced by the Defendants, are false, fabricated and got up, but even reference to the documents annexed at page 163 of the affidavit in reply would show the lack of bonafide and falsity in the case of the Defendants. The Defendants have indulged in falsehood and forgery and that is apparent when while seeking manufacturer's certificate from the Government of Maharashtra, what has been indicated by the Defendants is that they are not only dealing in the products under the mark NIRLEP, but they have copied several other prominent and well known marks such as TRUPTI, BINATONE, SMITH, SUMITRA, ANJALI MIX, JYOTI MIX, SOCIETY, NIRLEP EASYMIX, VOLTAMIX, VIDEOCROWN & LARSON-TURBO, which is blatant imitation of well known brands VIDEOCON and LARSEN & TUBRO. Such party does not deserve any sympathy from the Court is the submission of Mr.Tulzapurkar. 38. After hearing both sides at great length and perusing with their assistance the plaint, annexures thereto, written statement, motion and all affidavits on record, so also, the relevant statutory provisions and decisions brought to my notice, I am of the view that the Plaintiffs deserve to succeed. 39. Firstly, there is absolutely no denial of the rights of the Plaintiffs in the mark NIRLEP in question. The said mark of the Plaintiffs has been registered and that the Plaintiffs have claimed the user in relation thereto from 1968 at least, has not been seriously disputed or challenged either in the Written Statement or in the affidavits in reply. Further none of the averments in the plaint have been denied leave alone dealt with and that would demonstrate that as to how the mark NIRLEP was conceived by the Plaintiffs' predecessor-in-title and how the rights in relation thereto accrued in their favour. Further none of the averments in the plaint have been denied leave alone dealt with and that would demonstrate that as to how the mark NIRLEP was conceived by the Plaintiffs' predecessor-in-title and how the rights in relation thereto accrued in their favour. None of the documents right up to the proceedings in amalgamation and fresh certificate of incorporation are challenged leave alone their contents disputed or denied. I have, therefore, no hesitation in concluding, at this prima facie stage, that the Plaintiffs have demonstrated that they have registered their trade mark NIRLEP and that invoices and documents annexed to the plaint, contents of which are not disputed or denied, demonstrate their user as asserted by them from 1986. The mark is, thus, associated with the Plaintiffs and they have prima facie established its user in relation to the goods falling in the class in relation to which the registration is granted. There is no reason for me to doubt the correctness of the certificates issued by the Chartered Accountant in favour of the Plaintiffs demonstrating steady rise in their turnover over a passage of time. Further, sales and promotional expenses have also been certified by the Chartered Accountant. It has been demonstrated by certificates that have been annexed that annual sales of the Plaintiffs are to the tune of Rs.52,72,35,314/-for the year ended on 31st March, 2010. The invoice-cum-challan, copy of which is at Annexure-E-1, of the Plaintiffs' predecessor-in-title would show that the goods have been sold at least from 1998 under the subject mark NIRLEP. It, therefore, cannot be said that the Plaintiffs are one amongst several others who have adopted and used this mark and that there is no distinctiveness attached to it. That such mark was being used by several persons and entities in the market is not denied by the Plaintiffs, but they have also pointed out as to what steps and proceedings came to be initiated by them to challenge such user and they have demonstrated as to how they were successful therein. In these circumstances, overwhelming documentary evidence produced by the Plaintiffs cannot be brushed aside and ignored as desired by Mr.Kamat. 40. Once the aspect of prima facie case is taken care of, all that remains is to be dealt with are the technical objections which have been raised by Mr.Kamat. In these circumstances, overwhelming documentary evidence produced by the Plaintiffs cannot be brushed aside and ignored as desired by Mr.Kamat. 40. Once the aspect of prima facie case is taken care of, all that remains is to be dealt with are the technical objections which have been raised by Mr.Kamat. Mr.Kamat bases his argument by invoking the principles of delay, latches and acquiescence. 41. On the point of delay, the Plaintiffs have duly explained as to how only in the year 2002 when the advertisement, appeared in the Trade Marks Journal, of the application made for registration of the trade mark NIRLEP by the Defendants, that they became aware of the Defendants' claim. Therein the user was claimed from the year 1990. The Plaintiffs promptly filed their opposition and the notice in that behalf is not termed as belated. In fact the Plaintiffs have stated as to how in relation to the advertisement in October, 2002 the Plaintiffs filed their Notice of Opposition on 30.10.2002 and then pursued the matter thereafter by even filing a Interlocutory Petition. Equally, in paragraphs 16 and 17 of the plaint it is explained as to how when an advertisement appeared in July, 2003 for registration by the Defendants of their trade mark in respect of the goods in Class 07, that another Notice of Opposition came to be filed on 31.07.2003. It is not as if the Plaintiffs have slept over or allowed the time to pass by or that they have not pursued the proceedings before the Registrar of Trade Marks. There also the correspondence would indicate that what was required by the Plaintiffs has been done by them. They have no control over the progress or decision in the proceedings. Once they are pending, but no positive act can be shown on the part of the Plaintiffs of either abandoning their opposition or standing by and allowing the Defendants to continue their business and grow in the market, then, on both counts, namely, delay and acquiescence, the objections must fail. It is not necessary to refer to all decisions in this regard because what Mr.Kamat would rely upon is the judgment of Madras High Court in the case of M/s Devidoss & Company v/s Alathur Abboyee Chetty (supra). The very principle that Mr.Kamat places heavy reliance has been applied by the Supreme Court, as also, this Court in later decisions. It is not necessary to refer to all decisions in this regard because what Mr.Kamat would rely upon is the judgment of Madras High Court in the case of M/s Devidoss & Company v/s Alathur Abboyee Chetty (supra). The very principle that Mr.Kamat places heavy reliance has been applied by the Supreme Court, as also, this Court in later decisions. Thus, for acquiescence something more than mere delay is necessary. To prove acquiescence, it must be shown that the parties stood by and by positive act either gave up their rights or allowed the state of affairs to continue so as to acquiesce. The Madras High Court itself has held that to support a plea of acquiescence it must be shown that the Plaintiff has stood by for a substantial period and thus, encouraged the Defendants to expend money in building up the business associated with the mark. This is not even demonstrated at this prima facie stage in the instant case. 42. Other decision that is relied upon is an ad-interim order passed by this Court in the case of Macleods Pharmaceuticals Ltd. v/s Tidal Laboratories P. Ltd. (supra). There the learned Judge had, even at adinterim stage, enough material before him demonstrating that the Defendant had come in the market with the goods in November, 2002 which is simultaneously with that of the Plaintiff. Further as far back as on 14.05.2003 the Defendant in that case intimated to the Plaintiff that they have filed their application for registration of the mark in question, but the Plaintiff did not oppose the application before the Trade Marks Registrar and it did not file the suit for passing off for almost two years. In such facts, the application for ad-interim injunction was rejected by the learned Judge on the ground of delay. 43. As far as the order passed by the Honourable Supreme Court in the case of M/s Shree Vardhman Rice & Gen Mills v/s M/s Amar Singh Chawalwala (supra) is concerned, all that the Supreme Court holds is that the trade mark and copyright suit should be decided expeditiously by the Trial Court instead of merely granting or refusing the injunction. Such litigation goes on for years and years and that is how the Supreme Court observed that it would be desirable that in such cases the trials are expedited. Such litigation goes on for years and years and that is how the Supreme Court observed that it would be desirable that in such cases the trials are expedited. However, in this decision the Supreme Court does not lay down any general rule much less holding that interim applications should be rejected, if pending for no fault of the parties. 44. Equally the order passed in Bajaj Auto Limited v/s TVS Motor Company Limited (supra) by the Supreme Court cannot assist the Defendants in this case because there reliance has been placed on the order in M/s Shree Vardhman Rice & Gen Mills (supra). 45. In these circumstances I am of the view that there is no substance in the contentions of Mr.Kamat on the point of acquiescence and delay. 46. To be fair to Mr.Kamat, the argument on acquiescence is based on the Defendants' case that the Plaintiffs have abandoned the Notice of Opposition before the Registrar of Trade Marks. This is an inference to be drawn by applying the language of the Rule in question. 47. Although it is not necessary to give any final opinion as the proceedings are pending, yet going by the plain language of Rule50, there appears no substance in the contentions of Mr.Kamat. What Rule 50 contemplates is the abandonment of opposition. A party is deemed to have abandoned his opposition to the registration of the trade mark if the evidence in support of such opposition is not furnished within the period or further period envisaged in Rule 50(1). The failure to intimate to the Registrar of Trade Marks or to the Applicant seeking registration in writing that it does not desire to adduce evidence in support of opposition, but intend to rely upon the facts stated in the Notice of Opposition alone would enable the Registrar to conclude that no action has been taken under Rule 50(2) within time mentioned therein and therefore, the opposition is abandoned. 48. In the present case, what the Plaintiffs have relied upon are two communications. One is dated 13.10.2003 which is a communication referred in the plaint also. In relation to this communication what is stated in the plaint is that in or about October, 2002 the Plaintiffs came across an advertisement of the trade mark application No.543380 in Class 07 made by the Defendants. One is dated 13.10.2003 which is a communication referred in the plaint also. In relation to this communication what is stated in the plaint is that in or about October, 2002 the Plaintiffs came across an advertisement of the trade mark application No.543380 in Class 07 made by the Defendants. That application was opposed by filing the Notice of Opposition bearing No.BOM-62608 dated 30.10.2002. Thereafter, the Defendants filed the Counter Statement and later the evidence in support of their application. The Plaintiffs filed the evidence in reply. The Plaintiffs also filed a interlocutory petition to take on record its evidence in support of opposition. Annexure Q-3 to the plaint is the communication dated 02.08.2010 regarding filing of both. Even a copy of the Notice of Opposition has been annexed at Annexure Q-2. A perusal of this communication, prima facie, leaves me in no manner of doubt that there is no question of abandonment of the Notice of Opposition by the Plaintiffs. 49. Even prior communication of 13.10.2003, copy of which has been produced for my perusal by Mr.Tulzapurkar after handing over another copy to the Defendants, would reveal that the Plaintiffs had sought extension of time to file the evidence in support of the opposition and paid the prescribed fee. Though there was no communication and the Plaintiffs presumed that the time is extended, yet what they alternatively and without prejudice, contended was that their right to file the evidence is no way affected by such non-communication. However, they would rely upon the statements contained in the Notice of Opposition. It is in these circumstances that I am of the opinion that prima facie it is difficult to conclude that the Plaintiffs are deemed to have abandoned their opposition within the meaning of Rule 50(2). 50. In the facts and circumstances of the present case, any larger issue and based on the view taken by the two learned Single Judges one of Delhi High Court in the case of Sunnder Corporation, USA (supra) which is relied upon by Mr.Kamat and that of the Gujarat High Court in the case of Wyeth Holdings Corporation (supra) which is relied upon by Mr. Tulzapukar, need not be considered. 51. Tulzapukar, need not be considered. 51. It is not proper, when the opposition proceedings are pending, to render any final opinion, but prima facie I am of the view that the plea of acquiescence raised by the Defendants cannot be based or premised on the language of Rule 50(2) alone and when the Defendants could not demonstrate even prima facie that the opposition has been abandoned by the Plaintiffs. The documents that are referred to by the Plaintiffs and their contents not having been disputed, but all that is urged by the Defendants is that the Plaintiffs by their letter dated 13.10.2003 chose not to file any evidence, but that conclusion cannot be drawn from the contents of that letter, then, all arguments of Mr.Kamat on the plea of acquiescence deserve to be rejected. I have perused the letter dated 13.10.2003 and referred to its contents in some what details as above, only to deal with the argument of acquiescence and the contents of paragraph 4 of the affidavit in reply of the Defendants. 52. Something needs to be said about the invoices that have been produced as Exhibit2 collectively to the affidavit in reply of the Defendants. A perusal of the said invoices would indicate that majority of them are of the year 2004 under which one or two pieces of the products mixer grinder have been sold. In relation to the specific invoices at pages 141 and 142, it would reveal that the numbers of invoices are 804 and 803 and their date is 22.12.1990, however, the goods under the same are stated to have been sold to M/s Vaghela Steel Centre, Bhaji Market, Thane and M/s Bhagwan Steel, UNR (Ulhasnagar). Pertinently, in both these invoices the details of the order number, date, challan number, date, M.T./ R.R. number, documents forwarded through, are material columns and each one of them is blank. Further, although the invoices are dated 22.12.1990, it shows the name of the Defendants as M/s Gautam Metals and carrying on business from 8-B, Roop Niketan Society, Sant Tukaram Road, Mulund (E), Bombay-400081. The Deponent of the affidavit in reply states that the Defendants are carrying on business from Gala No.1, Old Unique Industrial Premises, Dr. R.P. Road, Mulund West, Mumbai400080. Therefore, one does not know whether the address in the invoices is either of the factory or of the office. The Deponent of the affidavit in reply states that the Defendants are carrying on business from Gala No.1, Old Unique Industrial Premises, Dr. R.P. Road, Mulund West, Mumbai400080. Therefore, one does not know whether the address in the invoices is either of the factory or of the office. Further the invoices show the telephone number as C/o 5603532. In the year 1990 the telephone numbers in Mumbai were not in seven digits. It would be evident if one peruses some of the telephone numbers which are mentioned on the invoices of the Defendants of the year 2001, 2003 and 2004. Thus, these invoices fail to inspire any confidence and prima facie cannot be said to be genuine. 53. Therefore, on account of such conduct of the Defendants as well, I am of the opinion that on the grounds of balance of convenience and irreparable harm and injury, the Defendants cannot resist the case of the Plaintiffs. There are no equities in favour of the Defendants and when they are indulging in brazen and blatant act of copying the well known trade marks and trying to cash on their reputation. 54. For the above reasons, this Notice of Motion succeeds, both on the ground of infringement of the trade mark NIRLEP of the Plaintiffs and passing off. There are no equities in favour of the Defendants and when they are indulging in brazen and blatant act of copying the well known trade marks and trying to cash on their reputation. 54. For the above reasons, this Notice of Motion succeeds, both on the ground of infringement of the trade mark NIRLEP of the Plaintiffs and passing off. A strong prima facie case having been made out, there will be an interim order in terms of the prayer clauses (a) and (b) of the Notice of Motion which read thus:- "(a) that pending the hearing and final disposal of the suit the Defendants by themselves, their proprietors, partners, servants, agents, stockists, distributors and dealers be restrained by a temporary order and injunction of this Hon'ble Court from infringing the Plaintiff's registered trade mark bearing No.457876 in class 21, No.635066 in class 09, Nos.932084, 1063686, 1084948 and 1226390 all in class 21 by using the impugned trade mark NIRLEP and/or any other trade mark deceptively similar to the registered trade mark NIRLEP upon or in respect of the mixer, juicer, grinder, hot plate, hand blender and/or same/ similar goods as those in respect of which the Plaintiff has secured the aforesaid registrations or in any other manner whatsoever; (b) that pending the hearing and final disposal of the suit the Defendants by themselves, their proprietors, partners, servants, agents, stockists, distributors and dealers be restrained by a temporary order and injunction of this Hon'ble Court from manufacturing, marketing, advertising and/or otherwise dealing in mixer, juicer, grinder, hot plate, hand blender or any other goods which are same as or similar to the Plaintiff's aforesaid goods bearing the impugned trade mark NIRLEP and/or any other trade mark deceptively similar to the Plaintiff's trade mark NIRLEP so as to pass off or enable others to pass off the Defendants' goods as and for Plaintiff's well known goods or in any other manner whatsoever." 55. In addition to the above, the Defendants shall pay the costs to the Plaintiffs quantified at Rs.10,000/-(Rupees Ten Thousand). The Notice of Motion is made absolute accordingly. 56. At this stage, Mr.Kamat, learned counsel for the Defendants prays for stay of this order. This request is opposed by Mr.Kane, learned counsel for the Plaintiffs. 57. In addition to the above, the Defendants shall pay the costs to the Plaintiffs quantified at Rs.10,000/-(Rupees Ten Thousand). The Notice of Motion is made absolute accordingly. 56. At this stage, Mr.Kamat, learned counsel for the Defendants prays for stay of this order. This request is opposed by Mr.Kane, learned counsel for the Plaintiffs. 57. Having held that there is blatant copying of the mark of the Plaintiffs and further reliance being placed on the questionable and doubtful documents, in my view, this is not a fit case to grant stay of the order. The request for stay of operation of the order is, therefore, refused.