JUDGMENT : S.J. KATHAWALLA, J. 1. Heard the Learned Senior Advocate for the Plaintiff and the learned Advocate for the Defendant. Affidavit in Rejoinder dated 17th September, 2013, tendered by Plaintiff is taken on record. The suit is for infringement and passing off of the Plaintiff's registered trade mark LAVASA. The grievance of the Plaintiff is that the Defendant is using the said mark LAVASA as part of its corporate name. The Plaintiff has been granted leave under Clause XIV of the Letters Patent to combine the causes of action of infringement of trade mark and passing off. 2. The Plaintiff carries on a wide range of multifarious business activities including hill city development projects and has its office in Mumbai. The Defendant is a private limited company carrying on business of erection of visual advertisements and signage, etc. at Kochi in Kerala. 3. Originally, on 11th February, 2000, the Plaintiff was incorporated as “Pearly Blue Lake Resorts Private Limited.” On or about 12th December, 2000, its corporate name was changed to “The Lake City Corporation Private Limited” and on 3rd March, 2003, it was further changed to “The Lake City Corporation Limited.” On or about 8th June, 2004, its corporate name was changed to the present name “Lavasa Corporation Limited.” 4. It is the Plaintiff's case that in or around the year 2000, the Plaintiff conceived the mark “LAVASA” which is an invented word and has no dictionary meaning. Even when the Plaintiff was operating under the other corporate names, the word LAVASA was being used by it in respect of its diverse business activities. 5. The Plaintiff is the registered proprietor of the trade mark LAVASA under trade mark No. 1260034 in Class 16 in respect of a wide range of goods including advertising material, kiosks, display systems, printed matter, etc. and trade mark No. 1260046 in Class 35 in respect of a wide range of services including advertising, shopping centre, etc. falling in Class 35. The Plaintiffs LAVASA hill city development projects have been widely advertised through every conceivable medium of publicity, including print and electronic media, since over 11 years. The Plaintiff's said LAVASA project has been receiving huge publicity and wide coverage and has been reported in various media since several years. The Plaintiff also has a website www.lavasa.com which also receives several hits from internet surfers and persons interested in the said project. The Plaintiff's said LAVASA project has been receiving huge publicity and wide coverage and has been reported in various media since several years. The Plaintiff also has a website www.lavasa.com which also receives several hits from internet surfers and persons interested in the said project. The Plaintiff has spent a large amount of money towards advertising and promotional activities. The Plaintiff has annexed sample advertisements and sample news articles as well as certificates from its Chartered Accountants certifying the income of the Plaintiff for the years 2009 to 2012 and expenses on account of advertisements, publicity, sales promotion, etc of the Plaintiff for the years 2000 to 2012. By virtue of the extensive publicity, the Plaintiffs said mark LAVASA, which is highly distinctive, has acquired tremendous goodwill and has become extremely popular and well known. The said mark is so well known not only within the segment that receives the services of the Plaintiff but also amongst all others, that the use of the said mark in relation to any other goods or services would be likely to be taken as indicating a connection in the course of trade or rendering services between those goods and services and the Plaintiff The said mark LAVASA has acquired sufficient goodwill and reputation that it can easily be said to have acquired the status of a “well known” trade mark within the meaning of Section 2(1)(zg) of the Trade Marks Act, 1999. The Plaintiff, thus enjoys statutory and common law rights in the said mark LAVASA in respect of not only the goods and services for which it is registered but for all kinds of goods and services. The Plaintiff has also taken action against various persons who were using the mark LAVASA as part of their corporate name/trading style. The Plaintiff has filed applications u/s 22 of the Companies Act, 1956, against such companies, where the Regional Director has ordered such companies to change their names. Some of the orders are annexed to the plaint. 6. In or around June 2011, the Plaintiff learnt that the Defendant had been recently incorporated under the Companies Act, 1956, under the name Lavasa Visuals Private Limited with various objects including the object of erection of all visual advertisements and signage, printing of its material and acquiring visual advertising time, space and opportunities in any medium. 6. In or around June 2011, the Plaintiff learnt that the Defendant had been recently incorporated under the Companies Act, 1956, under the name Lavasa Visuals Private Limited with various objects including the object of erection of all visual advertisements and signage, printing of its material and acquiring visual advertising time, space and opportunities in any medium. The said goods/services of the Defendant as stated in their Memorandum and Articles of Association are similar to the goods/services for which the Plaintiff has registration. 7. Being aggrieved by the same, the Plaintiff, through its Advocates, issued a cease and desist notice dated 23rd June, 2011 to the Defendant. Since the letter was returned undelivered, the Plaintiff by its Advocates' letter of 10th August, 2011, once again called upon the Defendant to comply with the requisitions of its earlier letter. The Defendant, through its Advocate's letter dated 30th August, 2011, replied to the same and inter-alia claimed that the word LAVASA was a common word having generic meaning, which is not qualified to be used or registered as an exclusive trademark. The Defendant, thus, refused to comply with the cease and desist notice. By its Advocates' letter dated 15th September, 2011, the Plaintiff once again called upon the Defendant to cease and desist from using the mark. However, the Defendant, despite receipt of the said letter, has failed to respond to the same. 8. The Defendant has raised the following defences: (a) That this court does not have jurisdiction to entertain the suit since the registered office of the Defendant is in Kerala. (b) That the suit has been filed belatedly and hence the Plaintiff is not entitled to any interim relief. (c) That the Plaintiff ought to have moved an application for change of the Defendant's corporate name before the appropriate authorities. (d) The mark LAVASA is common. That there exists a coffee chain of stores known as LAVAZZA Coffee. That there are several persons residing in the United States of America who have the surname LAVASSA. (e) That its business activities are very small and restricted to one city. (f) The Defendant's activities are limited to Visual Advertising which is different from the activities of the Plaintiff. 9. Mr. That there are several persons residing in the United States of America who have the surname LAVASSA. (e) That its business activities are very small and restricted to one city. (f) The Defendant's activities are limited to Visual Advertising which is different from the activities of the Plaintiff. 9. Mr. Venkatesh Dhond, Learned Senior Advocate appearing for the Plaintiff, submits that since the Plaintiff has its place of business in Mumbai, this Hon'ble Court, under the provisions of Section 134 of the Trade Marks Act, 1999, has jurisdiction to entertain and try the suit for infringement of the trademark. Further, he states that since leave under Clause XIV of the Letters Patent has been granted to the Plaintiff to combine the causes of action of infringement and passing off, this Hon'ble Court can also entertain and try the suit for passing off. 10. He further submits that mere delay in filing the suit cannot defeat an action for infringement, especially when the Defendant has given no explanation for adoption of the mark LAVASA as part of its corporate name and its adoption is dishonest. Further, he submits that the Defendant was put to notice once it was served with the Cease and Desist notice and that the Defendant cannot claim any equities thereafter. There are a plethora of decisions wherein courts have held that mere delay cannot be a ground for refusing interlocutory relief. He further submits that the Defendant has not even given any explanation as to how it hit upon the said mark LAVASA. 11. He further submits that proceedings u/s 22 of the Companies Act, 1956 i.e. the application for change of name of the Defendant, are independent from an action of infringement and passing off and the Plaintiff has the right to adopt either or both the remedies. 12. He has next submitted that the Defendant's contention that there are others who are using the mark LAVASA or have similar surnames, is also not sustainable and cannot be a defence to the Plaintiffs action for infringement and passing off. This is not a suit where the other parties are involved. The Plaintiff being the registered proprietor has a right to prevent any other person from using a similar mark. This is not a suit where the other parties are involved. The Plaintiff being the registered proprietor has a right to prevent any other person from using a similar mark. He further submits that the Defendant has not even chosen the words LAVAZZA or LAVASSA as part of its corporate name but has chosen LAVASA, which is the Plaintiff's registered trade mark, which clearly proves its dishonesty. The Plaintiff's LAVASA hill city development projects have been widely advertised since over 11 years and have been receiving huge publicity and wide coverage and have been reported in various media since several years. He has taken me through Exhibits D-1 and D-2 to the plaint wherein the Plaintiff has set out its income for the years 2009 to 2012 and the advertisement/promotional expenses for the years 2000 to 2012 which are both very substantial. Further, he submits that the Plaintiff's mark has become a well-known mark considering the huge income its project has generated, the huge publicity and advertisement expenses incurred by the Plaintiff. 13. He has further submitted that merely because the Defendant's business is small or that it is limited to one city, it cannot be said that the Defendant has not in - fringed the Plaintiff's trade mark. Any use by the Defendant, howsoever small, of the Plaintiff's registered trade mark will amount to infringement and/or passing off. 14. The Learned Senior Counsel also pointed out that the Plaintiffs registration in Class 16 includes advertising material, kiosks, display systems, printed matter and, in Class 35, includes the services of advertising. 15. I have considered the submissions made by both Counsel. I am in agreement with counsel for the Plaintiff that this Court has jurisdiction to entertain and try the suit for infringement u/s 134. Since I have granted leave under Clause XIV of the Letters Patent, this court also has jurisdiction to entertain and try the suit for passing off. 16. On the aspect of delay, a Division Bench of this Court in Schering Corporation and Others vs. Kilitch Co. (Pharma) Pvt. Ltd. has relied on the observations of the learned Single Judge of the Delhi High Court in Hindustan Pencils (P) Ltd. vs. India Stationery Products Co. and Another, AIR 1990 Delhi 19 of which reads thus: 39 Any infringer who uses or adopts some one else's mark must be aware of the consequences which may follow. (Pharma) Pvt. Ltd. has relied on the observations of the learned Single Judge of the Delhi High Court in Hindustan Pencils (P) Ltd. vs. India Stationery Products Co. and Another, AIR 1990 Delhi 19 of which reads thus: 39 Any infringer who uses or adopts some one else's mark must be aware of the consequences which may follow. The defendants run the risk in using a mark which belonged to some one else. It continued its business uninterruptedly for a number of years before any action was taken by the plaintiffs against it. Any growth after notice is at the risk and peril of the defendant. The defendant certainly had notice of application of the plaintiff having been filed against it in the year 1985 for cancellation of registration of the copyright. The defendant should have been warned at that stage, that the plaintiff is not likely to accept the user of its mark by the defendant. If the defendant continued to do business by using the impugned mark, it did so at its own peril. The continued user cannot be set up as a defence under these circumstances. 17. In my view, considering the facts in the present case and the aforestated decision, there is no manner of doubt that the contention of the Defendant, that the Plaintiff is not entitled to any relief on the ground of delay, is untenable. 18. I am in agreement with the submission made by the Ld. Senior Counsel, Mr. Venkatesh Dhond, that the Plaintiff has the option of adopting either the remedy under the Companies Act, 1956, or under the Trade Marks Act, 1999, or even both together. The Plaintiff is under no obligation to file an application under the Companies Act, 1956, before it adopts proceedings for infringement and passing off against the Defendant. 19. The Defendant's contention that the mark LAVASA is common is totally misconceived. No evidence of any nature has been produced to show that it is a commonly used word in India. Merely because there is a coffee chain by the name LAVAZZA Coffee and because LAVASSA is the surname of some persons in the United States of America, it is totally insufficient to conclude that the mark LAVASA has become common in India. Merely because there is a coffee chain by the name LAVAZZA Coffee and because LAVASSA is the surname of some persons in the United States of America, it is totally insufficient to conclude that the mark LAVASA has become common in India. Further, the Defendant cannot contend that because there are some other persons who are using LAVASA or a similar mark or name, it is also therefore entitled to use the same, especially when the Plaintiff is the registered proprietor of the said mark. I have noted that the income of the Plaintiff over the last few years has been very substantial as is evident from the statement of the Chartered Accountant at Exhibit D-1 and it has spent huge amounts on advertisements and pro motion as is evident from Exhibit D-2 to the plaint. The Plaintiff has also received huge publicity by way of news reports in various newspapers. Thus, by virtue thereof, it is clear that the Plaintiffs mark has become a well known mark and the Defendant would most certainly had been aware of the same whilst adopting its corporate name. 20. The Defendant cannot escape liability by hiding behind the fact that its turnover is meager when compared to that of the Plaintiffs. This can never be a defence in such a matter. If this contention of the Defendant is to be accepted, then any number of persons would start using the said mark claiming that their business was minuscule when compared to that of the Plaintiff and that hence they were entitled to use the Plaintiffs registered trade mark. This would totally dilute the Plaintiffs registered trademark. The Defendant's activities are identical or similar to those for which the Plaintiff has registration. In the circumstances, the Notice of Motion is made absolute in terms of prayers (a) and (b). The Defendant, however, is granted 4 weeks time to change its corporate name by deleting the word “LAVASA.” There shall be no order as to costs.