Judgment R.S. Ramanathan, J. 1. The plaintiff in C.S. No. 462 of 2012 filed the above said application seeking for an order of ad interim injunction restraining the respondent, its agents, servants or any one claiming from them, from infringing the registered trade mark of the applicant by featuring Elephant(s), being the registered Trade Mark of the applicant in respondent's advertisement. 2. It is the case of the applicant that the company was incorporated in the name and style of Saurashtra Cement and Chemical Industries Limited on June 11, 1956, with a main object to manufacture, market, sell or otherwise deal in various kinds of cement. Subsequently, in the year 1994, the company's name was changed from Saurashtra Cement and Chemical Industries Limited to Saurashtra Cement Limited. Originally, in the year 1960, the applicant conceptualised and conceived a trade mark, being a device of Elephant and adopted the same along with the word Elephant, Hathi in respect of cement falling under Class 19. The applicant also secured registration for its trade mark, Elephant, Hathi and the device of Elephant in different poses under various registration numbers as detailed in the application. The applicant, therefore, stated that they are the registered proprietor of the Trade Mark, Elephant, Hathi and the device of an Elephant, and the applicant has the exclusive right to use the aforesaid trade marks and prevent others from using an identical and/or deceptively similar trademarks in respect of the cement. The goods manufactured by the applicant under the said trade marks have been widely accepted and known as the product of the applicant and the product of the applicant are extremely popular. 3. It is further stated by the applicant that during the month of January, 2012, the applicant came across defendant's advertisements both in print and television media, featuring the device of Elephant(s) in different poses for marketing its cement and cement products. 3. It is further stated by the applicant that during the month of January, 2012, the applicant came across defendant's advertisements both in print and television media, featuring the device of Elephant(s) in different poses for marketing its cement and cement products. Therefore, on 17th January, 2012, the applicant through its trade mark attorney issued a Cease and Desist Notice to the respondent, calling upon the respondent to discontinue the usage of the device of an Elephant or Elephants in its advertisements and the respondent by its interim reply dated 28th January, 2012 sought time to file a detailed reply but instituted a suit in C.S. No. 318 of 2012 before this Court under Section 142 of the Trade Marks Act, 1999 and also obtained an order of interim injunction. Thereafter, a detailed reply was sent by the respondent on 07th May, 2012, repudiating the claim of the applicant. 4. The applicant further states that the respondent is also a manufacturer of cement and cement trader. The applicant, on seeing the advertisements of the respondent featuring Elephant bewildered and wondered in amazement whether the respondent was in any way connected or associated with the applicant. It is also further stated that the public would also assume that the goods of the respondent has been emanated from the applicant. The advertisement carried out by the respondent is of such a nature that he took fair advantage and is contrary to the honest practices in commercial matters. Apart from being detrimental to the distinctive character of the applicant's trade marks, the advertisements issued by the respondent by using device of an Elephant amounts to infringement of the applicant's trade marks and the respondent is cashing in on the reputation of the applicant. Hence, injunction is sought for. 5. The respondent filed a counter affidavit denying the allegation made in the affidavit of the applicant stating that the respondent is a part of the worldwide Italcementi Group, which is the fifth largest cement producer in the world. The respondent has set a bench mark in the cement industry by being awarded the recognition as Power Brand in the year 2012. The respondent has a powerful brand positioning amongst the Indian consumers, and has a very high reputation in the industry for the manner in which business is conducted. The respondent has set a bench mark in the cement industry by being awarded the recognition as Power Brand in the year 2012. The respondent has a powerful brand positioning amongst the Indian consumers, and has a very high reputation in the industry for the manner in which business is conducted. The trade mark of the applicant/plaintiff company is of the word Hathi and a device of an elephant. The device is of specific caricature and there are no other patterns of the elephant device in different forms used by the applicant. The live elephant as pictured by the respondent in their advertisements are not similar to the Elephant as that of the applicant's trade mark. The respondent by its creativeness depicted the live elephant in various forms such as sitting on a parapet wall drinking tea, singing on a swing, etc. TV Commercial using the live elephant have won the most creative advertisement award on depiction. Elephant is a symbol of strength and in the advertisement, the photographs of live elephant performing stunts, sitting or taking position atop buildings is used to convey the message to the consumers about the strength and durability of the building structure using cement manufactured by them. The picture of elephant used in their advertisements are similar to any elephant picture widely used by the citizens of India and elephant denotes, reliability, dignity, power, royalty and pride. The picture of an elephant shown by the respondent company and the device of elephant of the applicant/plaintiff company are not even remotely similar and the device of elephant of the applicant is in drawing/caricature/sketch. The picture of an elephant as used by the respondent company is like a photograph and high end animation. The respondent company uses the picture or image of an elephant only for promoting their brand and not as a trade mark. In all their advertisements of the respondent, their registered trade mark Zuari Cements is conspicuously exhibited and the photograph or caricature of the elephant does not find a place in their cement bags. 6. It is further sated in the counter affidavit of the respondent that the applicant has got the trade mark registered for specific caricature of elephant but did not obtain the trade mark registration for the animal elephant. 6. It is further sated in the counter affidavit of the respondent that the applicant has got the trade mark registered for specific caricature of elephant but did not obtain the trade mark registration for the animal elephant. Therefore, mere registration of a caricature does not give right to the applicant over the use of the picture of elephant. The applicant does not have exclusive right over the different devices of an elephant and they cannot claim monopoly over the devices of an elephant and the applicant has not been using the device of elephant from 1960 as alleged. Even as per the Trade Marks Application filed in 2006, they commenced using trade mark Hathi with pencil sketch of Elephant in 2006 and it is also seen from the official website of the Trade Mark Registry in respect of the Trade Mark Application No. 1371737, wherein it has clearly stated that the applicant/ plaintiff will not have exclusive right over the device of Elephant. The applicant adopted the device of Elephant in 1975 and in the year 2009, they adopted the trade mark Hathi for the cement. In their trade mark Application filed on 09.01.2006 and 26.05.2006 under Nos. 1412419, 1412420, 1454165 and 1454168, the applicant only claimed that they propose to use the trade mark Hathi for their cement and now they claim that they are using this trade mark since 1960. 7. It is further stated in the counter affidavit that Trade Marks of the applicant and the respondent are not similar and they are totally different and the respondent never used the pencil sketch of elephant or the word Hathi in their products. Giving details of brand name and their Application for their products, it is further stated by the respondent that the cumulative turnover and advertisement expenses as stated in the counter affidavit would prove that they enjoy substantial reputation of the goodwill and therefore, there was no necessity for the respondent for passing off their goods as that of the applicant. 8. It is further stated that the photographs of elephant are not only used by the respondent to depict the strength but also used by the other companies to project the strength of the product. Gujarat Ambuja Cement uses elephant in their advertisements to portray strength. Sharon Ply has used elephant in their advertisement to depict strength of the plywood. 8. It is further stated that the photographs of elephant are not only used by the respondent to depict the strength but also used by the other companies to project the strength of the product. Gujarat Ambuja Cement uses elephant in their advertisements to portray strength. Sharon Ply has used elephant in their advertisement to depict strength of the plywood. Toshali Cement Ltd uses the elephant picture in its logo. Likewise, the respondent started using the picture of an elephant in their advertisements to represent the strength of their product and the applicant will in no way be prejudiced and the picture/image of an elephant is used only to depict the strength of the product. 9. It is further stated in the counter affidavit that the respondent is using the picture of an elephant in their advertisement from the year 2000 onwards and the applicant has also not produced any proof that by reason of the display of an elephant in the advertisements of the respondent, the business of the applicant was affected and the applicant incurred loss. It is therefore stated that there is no prima facie case in favour of the applicant and the balance of convenience is also in favour of the respondent. 10. It is submitted by the learned counsel for the applicant that the applicant is using pencil drawing/caricature of an elephant in its product and also registered the same as their trade mark. As seen from Trade Marks Regn. No. 305029 registration dated 30.04.1975, the picture of the elephant is registered as trade mark in Class 19 and as per the Certificate of Registration of trade mark issued in Trade Mark No. 509996 dated 09.05.1989, the picture of elephant inside a box has been registered as trade mark of the applicant company for their Portland Cement and cement products. He also submitted that similarly Hathi Cement with the device of elephant was also registered by the applicant for cement and cement products included in Class 19. The picture of elephant with the word Hathi Cement are registered by the applicant in different vernacular languages and the registration of drawing of an African elephant with the name of Hathi Cement for cement products included both in English and Tamil languages registered for their cement and cement products. The picture of elephant with the word Hathi Cement are registered by the applicant in different vernacular languages and the registration of drawing of an African elephant with the name of Hathi Cement for cement products included both in English and Tamil languages registered for their cement and cement products. He, therefore, submitted that since 1975 onwards, the applicant has been using giant elephant as its trade mark and the public were aware of its continued use of trade mark Elephant' and poses of elephant in different forms. The applicant secured exclusive use of the picture of elephant and it has identification with the applicant's goods. He also submitted that the respondent is also in the same industry and in their advertisements, admittedly, they are using the photographs of elephant in various forms and that would create an impression as if the respondent's products are manufactured by the applicant and by using of that, the respondent gains advantage over the product and were able to pass off the goods as that of the applicant. He, therefore, submitted that a prima facie case has been made out by the applicant for the grant of injunction and this Court, also on being satisfied with the submission of the applicant, granted ad-interim injunction and the same may be made absolute. 11. The learned counsel for the applicant also relied upon the following judgments in support of his contention:- (i) Pepsi Co. Inc. and Other vs. Hindustan Coca Cola Ltd. and Another, 2003 (27) PTC 305 (Del) (ii) Dabur India Limited vs. Colgate Palmolive India Ltd. AIR 2005 DELHI 102 (iii) Paras Pharmaceuticals Ltd. vs. Ranbaxy Laboratories Ltd. and Others, AIR 2008 Guj 94 (iv) Hamdard National Foundation and Another vs. Hussain Dalal & Others (v) Godrej Sara Lee Ltd. vs. Supergood Films Pvt. Ltd. (Madras High Court Judgment Dated 09.02.2005 in O.A. No. 85 of 2005 in C.S. No. 70 of 2005) 12. Per contra, Mr. K. Rajasekaran, learned counsel for the respondent, submitted that the trade marks of the applicant and respondent are totally different and the respondent is only using live elephant in its advertisement and such advertisement will not create any impression that the product of the respondent is that of the product of the applicant. Per contra, Mr. K. Rajasekaran, learned counsel for the respondent, submitted that the trade marks of the applicant and respondent are totally different and the respondent is only using live elephant in its advertisement and such advertisement will not create any impression that the product of the respondent is that of the product of the applicant. In the visual advertisement, the respondent never used the word Elephant, Hathi or the trade mark of the applicant and the cement bags of the respondent are totally different from that of the applicant and in the cement bag, the respondent is not depicting the picture of elephant in any form. He further submitted that in the advertisement, the elephant depicted by the respondent are live animals in different innovative postures and the trade mark of the applicant, which contains a pencil sketch drawing of an elephant, is totally different from that of the elephant shown by the respondent in its advertisement. He further submitted that the elephant depicts strength and the applicant cannot claim any exclusive right to the picture of elephant as elephant is used by people as a symbol of strength representing God and therefore, the applicant cannot claim exclusive use of photograph of elephant in any form. He also relied upon the following judgments:- (i) Registrar of Trade Marks vs. Ashok Chandra Rakhit Ltd. AIR 1955 Supreme Court 558 (ii) The Supreme Court of Appeal – Republic of South Africa, in the matter between Verimark (Pty) Ltd. and Bayerische Motoren Werke Aktiengesellschaft. (iii) In the case of Kangaro Industries, Ludhiana, 2004 (29) PTC 261 (CR) (iv) M/s. J & P Coats Ltd. Scotland vs. M/s. Gurcharan Singh and Brothers, Amritsar, and another, AIR 1969 Punjab & Haryana 290 (v) Orchid Chemicals & Pharmaceuticals Ltd. vs. Wookhardt Limited, 2013 (3) CTC 841 13. He further submitted that the judgments relied upon by the applicant cannot be applied to the facts of the case. In respect of the judgment reported in2003 (27) PTC 305 (Del) citedsupra, the word Pappi is allegedly similar to Pepsi in the advertisements on the ground of phonetic similarity and in that, there was an attempt of disparaging the product of the plaintiff and therefore, relief sought was granted. In respect of the judgment reported in2003 (27) PTC 305 (Del) citedsupra, the word Pappi is allegedly similar to Pepsi in the advertisements on the ground of phonetic similarity and in that, there was an attempt of disparaging the product of the plaintiff and therefore, relief sought was granted. Similarly, in Dabur India Ltd. Case, 2004(29) PTC 401 cited supra, there was a slandering of a rival product, and in the judgment reported in Hamdard National Foundation's case cited supra, there was an attempt of denigrating the plaintiff's product and therefore, injunction was granted. He, therefore, submitted that the respondent has not denigrated the product of the applicant and in their advertisement, they conspicuously use the product's name and nowhere, they exhibited the trade mark of the applicant, namely, Hathi Cement or the pencil caricature of elephant and they are using only live elephant in various 2D or 3D forms only to depict the strength of the respondent's product. He also submitted that where a distinctive label is registered as a whole, such registration cannot possibly give any exclusive statutory right to the proprietor of the trade mark to the use of any particular word or name contained therein apart from the market as a whole. He, therefore, submitted that by registering the trade mark as a whole with the pencil drawing of elephant, the applicant cannot claim exclusive use of the picture of elephant in any form and unless the respondent uses the same label, the applicant cannot complain against the respondent. 14. To appreciate the contention of the rival parties, we will have to see the definition of mark, trade mark, as defined under Section 2(1) of the Trade Marks Act, 1999. 2(1)(m). Mark includes a device, brand, heading, label, ticket, name, signature, word, letter, numeral, shape of goods, packaging or combination of colours or any combination thereof. 2(1)(zb). Trade Mark means a mark capable of being represented graphically and which is capable of distinguishing the goods or services of one person from those of others and may include shape of goods, their packaging and combination of colours. 2(1)(zb). Trade Mark means a mark capable of being represented graphically and which is capable of distinguishing the goods or services of one person from those of others and may include shape of goods, their packaging and combination of colours. (i) In relation to Chapter XII (other than section 107) a registered trade mark or a mark used in relation to goods or services for the purpose of indicating or so as to indicate a connection in the course of trade between the goods or services, as the case may be, and some person having the right, either as proprietor to use the mark. (ii) In relation to other provisions of this Act, a mark used or proposed to be used in relation to goods or services for the purpose of indicating or so to indicate a connection in the course of trade between the goods or services, as the case may be, and some person having the right, either as proprietor or by way of permitted user, to use the mark whether with or without any indication of the identity of that person, and includes a certification trade mark or collective mark. 15. Therefore, as per the definition of Trade Marks, it means a mark capable of distinguishing the goods or services of one person from those of others and it may also include any shape of goods, their packaging and combination of colours, and a mark used or proposed to be used in relation to the goods or services for the purpose of indicating or so as to indicate a connection in the course of trade between the goods and services of another person where with or without identity of that person. 16. Section 29 of the Trade Marks Act, 1999 deals with infringement of registered Trade Marks – which is as follows:- 29. Infringement of registered trade marks— (1) A registered trade mark is infringed by a person who, not being a registered proprietor or a person using by way of permitted use, uses in the course of trade, a mark which is identical with, or deceptively similar to, the trade mark in relation to goods or services in respect of which the trade mark is registered and in such manner as to render the use of the mark likely to be taken as being used as a trade mark. (2) A registered trade mark is infringed by a person who, not being a registered proprietor or a person using by way of permitted use, uses in the course of trade, a mark which because of— (a) Its identity with the registered trade mark and the similarity of the goods or services covered by such registered trade mark. (b) Its similarity to the registered trade mark and the identity or similarity of the goods or services covered by such registered trade mark. (c) Its identity with the registered trade mark and the identity of the goods or services covered by such registered trade mark, is likely to cause confusion on the part of the public, or which is likely to have an association with the registered trade mark. (3) In any case falling under clause (c) of sub-section (2), the court shall presume that it is likely to cause confusion on the part of the public. (4) A registered trade mark is infringed by a person who, not being a registered proprietor or a person using by way of permitted use, uses in the course of trade, a mark which— (a) Is identical with or similar to the registered trade mark. (b) Is used in relation to goods or services which are not similar to those for which the trade mark is registered. (c) The registered trade mark has a reputation in India and the use of the mark without due cause takes unfair advantage of or is detrimental to, the distinctive character or repute of the registered trade mark. (5) A registered trade mark is infringed by a person if he uses such registered trade mark, as his trade name or part of his trade name, or name of his business concern or part of the name, of his business concern dealing in goods or services in respect of which the trade mark is registered. (6) For the purposes of this section, a person uses a registered mark, if, in particular, he— (a) Affixes it to goods or the packaging thereof. (b) Offers or exposes goods for sale, puts them on the market, or stocks them for those purposes under the registered trade mark, or offers or supplies services under the registered trade mark. (c) Imports or exports goods under the mark. (d) Uses the registered trade mark on business papers or in advertising. (b) Offers or exposes goods for sale, puts them on the market, or stocks them for those purposes under the registered trade mark, or offers or supplies services under the registered trade mark. (c) Imports or exports goods under the mark. (d) Uses the registered trade mark on business papers or in advertising. (7) A registered trade mark is infringed by a person who applies such registered trade mark to a material intended to be used for labelling or packaging goods, as a business paper, or for advertising goods or services, provided such person, when he applied the mark, knew or had reason to believe that the application of the mark was not duly authorised by the proprietor or a licensee. (8) A registered trade mark is infringed by any advertising of that trade mark if such advertising— (a) Takes unfair advantage of and is contrary to honest practices in industrial or commercial matters. (b) Is detrimental to its distinctive character. (c) Is against the reputation of the trade mark. (9) Where the distinctive elements of a registered trade mark consist of or include words, the trade mark may be infringed by the spoken use of those words as well as by their visual representation and reference in this section to the use of a mark shall be construed accordingly. 17. Section 30 of the Trade Marks Act, 1999, deals with limits on effect of registered trade mark and as per the judgment reported in 2013 (3) CTC 841 cited supra, Section 30 of the Trade Marks Act is a overriding provision to Section 29 and the parameters stipulated under Section 30 of the Act will have to be complied with in an action for infringement of registered trade marks. 18. In the judgment reported in AIR 1955 Supreme Court 558 cited supra, in Paragraph 12, it has been held as follows:- “12. The facts of that case appear to us to be clearly distinguishable from those of the case now before us. Here, the concurrent finding of the Registrar and the High Court is that the word Shree is not adapted to distinguish and is not a word to the exclusive use of which any trade may claim the right. The facts of that case appear to us to be clearly distinguishable from those of the case now before us. Here, the concurrent finding of the Registrar and the High Court is that the word Shree is not adapted to distinguish and is not a word to the exclusive use of which any trade may claim the right. In the face of this finding the consideration of the possibility that a disclaimer may drive the respondent company to a crop of passing off actions was not so relevant or urgent as it was in the Tudor case. In view of the finding in the present case, the respondent company could well be left, as it was in fact left to protect its rights by other proceedings, e.g., passing off actions or prosecutions which, by reason of the proviso, were open to be taken by it, if the necessary facts to support such proceedings which were not before the Registrar could be satisfactorily established.” 19. In the judgment reported in AIR 1969 Punjab & Haryana 290 cited supra, which according to me, is similar to the facts of this case. The Hon'ble Judges of the Punjab and Haryana High Court relied upon various Supreme Court's judgments and High Court's judgments and held that in deciding whether the alleged infringing trade mark is likely to cause confusion in the trade or not is the totality of the trade marks which has to be kept in view. It is also held that initial burden of showing that the defendant's mark is likely to deceive or cause confusion lies on the plaintiff who wants to restraint the user of the alleged infringing mark. The facts of that case is that the plaintiff is the owner by assignment of trade mark consisting of a plain picture of an elephant in black and white standing over an intertwined thread roll. The trade mark registration in clause 23 consists of a presentation of a circle in thick black line enclosing while surface in which there are two parallel horizontal lines just below and just above the centre of the circle with shaded lined surface in between the said two parallel lines. On the shaded surface enclosed by the two parallel horizontal lines is written the word Elephant' in bold capital letters. On the upper parallel line stands small picture of an elephant in black and white. On the shaded surface enclosed by the two parallel horizontal lines is written the word Elephant' in bold capital letters. On the upper parallel line stands small picture of an elephant in black and white. The picture of elephant is made by just drawing black lines on the white surface. At the bottom, inside the circle is another small line drawn to make the shape of a covered bowl. The plaintiff was given right to use the aforesaid trade mark and they are the registered users of the trade mark. The respondent which is carrying on the business of manufacture and sale of cotton threads using brand name Jagjit Hathi and adopted the said name in its wrappers and boxes. Therefore, action was sought for by the plaintiff to restrain the respondent from using the trade mark Jagjit Hathi brand in respect of sewing threads manufactured by the respondent. While dealing with that case, it was held that in order to constitute infringement as per Section 21 of the Trade Marks Act, 1940, which is similar to Section 29 of the Trade Marks Act, 1999, it has to be proved that the alleged offending mark is either (i) identical with the registered trade mark, or (ii) it so nearly resembles the registered trade mark as to likely deceive or cause confusion in the course of trade in relation to the goods in respect of the mark is registered. To answer this issue, it has to be found whether the respondent has copied any of the essential features of the registered trade marks of the plaintiff and it is settled law that identification of an essential feature depends upon substantially on the Court's own judgment and partly on the burden of evidence that is available on the record of the case. The learned judges relied upon the judgment in De Corvoda vs. Vick Chemical Co. reported in (1951) 68 R.P.C. 103, wherein it is observed as follows:- "A mark is infringed by another trader if, even without using the whole of it upon or in connection with his goods, he uses one or more of its essential features. The identification of an essential feature depends partly on the Court's own judgment and partly on the burden of the evidence that is placed before it. The identification of an essential feature depends partly on the Court's own judgment and partly on the burden of the evidence that is placed before it. A trade-mark is undoubtedly a visual device; but it is well-settled law that the ascertainment of an essential feature is not to be by ocular test alone. Since words can form part or indeed the whole, of a mark, it is impossible to exclude words. Thus it has long been accepted that, if a word forming part of a mark has come in trade to be used to identify the goods of the owner of the mark, it is an infringement of the mark itself to use that word as the mark or part of the mark of another trader, for confusion is likely to result." In the judgment in Amirtdhara Pharmacy vs. Satya Deo Gupta reported in AIR 1963 SC 449 , the Supreme Court held that what was to be considered in that case was the overall similarity of the composite words having regard to the circumstance that the goods bearing the two names are medicinal preparations of the same description. The Hon'ble Supreme Court further observed as follows:- ''We are aware that the admission of a mark is not to be refused, because unusually stupid people, fools or idiots, may be deceived. A critical comparison of the two names may disclose some points of difference but an unwary purchaser of average intelligence and imperfect recollection would be deceived by the overall similarity of the two names having regard to the nature of the medicine he is looking for with a somewhat vague recollection that he had purchased a similar medicine on a previous occasion with a similar name. The trade-mark is the whole thing – the whole word has to be considered.'' In the judgment reported in Durga Cutt Sharma vs. Navartna Pharmaceutical Laboratories, AIR 1965 SC 980 it is held as follows:- "In an action for infringement, the plaintiff must, no doubt, make out that the use of the defendant's mark is likely to deceive, but where the similarity between the plaintiff's and the defendant's mark is so close either visually, phonetically or otherwise and the Court reaches the conclusion that there is an imitation, no further evidence is required to establish that the plaintiff's rights are violated. Expressed in another way, if the essential features of the trade-mark of the plaintiff have been adopted by the defendant, the fact that the getup packing and other writing or marks on the goods or on the packets in which he offers his goods for sale show marked differences, or indicate clearly a trade origin different from that of the registered proprietor of the mark would be immaterial; whereas in the case of passing off, the defendant may escape liability if he can show that the added matter is sufficient to distinguish his goods from those of the plaintiff." It was then observed:- “When once the use by the defendant of the mark which is claimed to infringe the plaintiff's mark is shown to be 'in the course of trade', the question whether there has been an infringement is to be decided by comparison of the two marks. Where the two marks are identical no further question arises for then the infringement is made out. When the two marks are not identical, the plaintiff would have to establish that the mark used by the defendant so nearly resembles the plaintiff's registered trade-mark as is likely to deceive or cause confusion and in relation to goods in respect of which it is registered”. Their Lordships of the Supreme Court laid emphasis in Durga Dutt Sharma's case, AIR 1965 SC 980 (supra) on the necessity to compare the two competing marks in order to ascertain whether the one is deceptively similar to the other or not, and again observed that the degree of resemblance which is necessary to exist to cause deception not being capable of definition by laying down objective standards, and the likelihood of deception being related to the class of persons who would be the normal purchasers of the goods in dispute in a given case, the resemblance has to be in the basic idea represented by the plaintiff's mark. It was then held:- “The purpose of the comparison for determining whether the essential features of the plaintiff's trade-mark are to be found in that used by the defendant. The identification of the essential features of the mark is in essence a question of fact and depends on the judgment of the Court based on the evidence led before it as regards the usage of the trade. The identification of the essential features of the mark is in essence a question of fact and depends on the judgment of the Court based on the evidence led before it as regards the usage of the trade. It should however, be borne in mind that the object of the enquiry in ultimate analysis is whether the mark used by the defendant as a whole is deceptively similar to that of the registered mark of the plaintiff.” Finally, the Hon'ble Judges in the aforesaid judgment reported in AIR 1969 Punjab & Haryana 290, cited supra, summarised the law as follows:- (1) In deciding whether the alleged infringing trade-mark is likely to cause confusion in the trade or not it is the totality of the trade-mark which has to be kept in view. (2) Initial burden of showing that the defendant's mark is likely to deceive or cause confusion lies on the plaintiff who wants to restrain the user of the alleged infringing mark. As soon, however, as some resemblance is found to exist between the two marks, it is then for the defendant to show that the two marks are so dissimilar that there is no reasonable probability of any considerable section of the public being deceived. (3) In order to decide a dispute about the infringement of a trade-mark, the Court has to be have regard to the way in which the infringing trade-mark will appear when it is placed on the goods of the owner of the registered mark. If on so doing, the Court feels that an ordinary unwary purchaser is like to refuse to buy the goods as those of the registered owner, there is no infringement, but if the Court comes to the conclusion that an ordinary purchaser of the goods in question is likely to be unable to distinguish between the offending mark and the registered mark, the Court would be justified to come to a conclusion in favour of the plaintiff. (4) The question of possibility of confusion is not to be decided on the basis of a person looking at the two trade-marks side by side, but on the basis that normally a customer would see one trade-mark in the absence of the other and will have to make up his mind about the trade mark before him being one he is looking for or not in the light only of his general recollection of what the nature of the trade-mark sought for by him was. This is particularly so as the eye is not always an accurate recorder of visual detail and marks are more usually remembered by the general impressions or by some significant detail than by the photographic recollection of the whole. In order to "decide the question of similarity between the two marks, the Court has to be approach the subject from the point of view of a man of average intelligence and of imperfect recollection. To such a man the overall structural and phonetic similarity and the similarity of the idea in the two marks is reasonably likely to cause a confusion between them." ( AIR 1960 SC 142 ) Merely because an alleged offending mark is likely to deceive fools or stupid persons or idiots is no ground to hold that the use of the mark amounts to an infringement of the registered trademark. The trade-mark is the whole thing that is the total thing registered, and it is the whole thing or the whole word which has to be considered. (5) If a trade-mark consists of a spoken word having a meaning, the mere use of a word in some other language having the same meaning would not save the offending mark and exonerate its user from liability of being restrained from using such a mark. (6) The resemblance between the two marks may be phonetic, may be visual, may be auditory, or may lie in the meaning of the word mark. The resemblance may also be in the basic idea represented by the plaintiff's mark, which idea may be depicted in a completely different representation, and the identification of the essential features of a mark is in essence a question of fact and depends on the judgment of the Court based on the evidence led before it as regards the usage of the trade. It has to be borne in mind that the object of the enquiry in ultimate analysis is whether the mark used by the defendant as a whole is deceptively similar to that of the registered mark of the plaintiff or not." (Emphasised) 20. Bearing the aforesaid principles in mind, if we look at the facts of the present case, in my opinion, it cannot be contended that the respondent has infringed the trade mark of the applicant. It is admitted that the respondent is using different photographs and live elephant in various postures taken in 2D or 3D forms in their advertisement and it is also admitted that the respondent is not using or showing any pencil caricature or drawing of an elephant in their advertisement. The only contention raised by the applicant is that the respondent is also manufacturing cement and while popularising their brand, they are using the image of the elephant which is the registered trade mark of the applicant and therefore, the respondent must be injuncted. 21. As held by the Hon'ble Supreme Court in the judgment reported in AIR 1955 Supreme Court 558, cited supra, the label does not consist of each particular part of it, but consists of the combination of them. Where a distinctive label is registered as a whole, such registration cannot possibly give any exclusive statutory right to the proprietor of the trade mark to the use of any particular word or name contained therein apart from the mark as a whole. In this case, even according the applicant, they registered the trade mark, Elephant and as per the Registration No. 305029, they registered mark, “elephant'' and the label is the picture of a gunny bag with the words ''elephant brand'' on the top with the recognised Portland Cement, beneath the same also, a caricature of an elephant in pencil drawing was registered and in respect of "Hathi" Cement in various languages a drawing or caricature of the elephant inside a triangle with the name "Hathi" Cement was registered in various languages. On the other hand, it is seen from the typed set of papers filed by the respondent, the respondent is using live elephant in different forms in their advertisement just like sitting in swing, sipping coffee on wall and showing herds of elephant and in none of their advertisements as filed in the typed set of papers, the respondent is using the whole label which was registered by the applicant to portray their product. In all its advertisements, the respondent clearly mentioned its brand name, ''Zuari Cement'' conspicuously and according to me, it will not mislead any comman man to think that the product of the respondent is that of the product of the applicant. Further, as rightly submitted by the learned counsel for the respondent that elephant denotes strength and symbol of God and merely because the applicant registered the word ''Elephant'' or "Hathi" and also pencil drawing of an elephant, they cannot claim exclusive use of the photographs of the elephant for their product and any one intending to give an impression about their product regarding its strength is entitled to use the photograph of an elephant so long as they are not copying the entire label of the applicant, which was registered. 22. In the judgment reported in 2004 (29) PTC 261, cited supra, an application was filed for registration of copy right in the artistic work of ''Kangaro''. It was objected by the respondent contending that they are the exclusive proprietor of the trade mark ''Kangaro'' and therefore, copy right may not be granted. It was argued by the objectors that once the trade mark by name ''Kangaro'' was registered, no one can get copy right on device using ''Kangaro''. The contention of the objectors was rejected holding that if the contention of the objectors were accepted, Australians have to take permission of the objectors to have a depiction of their own animal. The acceptance of the respondent will also lead to the situation that no one is entitled to use the photograph of Kangaro. Therefore, the contention of the objectors was rejected and the application filed by the applicant was allowed. 23. The present case is similar and if the contention of the applicant is accepted, no one can use the picture of elephant without getting permission from the applicant. Further, elephant is a revered animal as per Hindu mythology and it depicts Lord Ganesha. 23. The present case is similar and if the contention of the applicant is accepted, no one can use the picture of elephant without getting permission from the applicant. Further, elephant is a revered animal as per Hindu mythology and it depicts Lord Ganesha. Therefore, every one has got a right to use the image of an elephant for their product and only restriction imposed on the other people is that they should not copy the trade mark of the applicant so as to cause infringement as per Section 29 of the Trade Marks Act, 1999. Therefore, according to me, prima facie, the applicant has not proved that the picture of elephant in the advertisement of the respondent would amount to infringement as per Section 29 of the Trade Marks Act, 1999. According to me, the use of the picture of live elephant in the advertisement is also in accordance with the honest practices in the industrial or commercial matters and the respondent has not taken unfair advantage of the distinctive character or used prelica of the applicant's trade mark and therefore, the respondent cannot be said to have infringed the trade mark of the applicant. 24. In the affidavit, the applicant did not specifically state that by reason of showing elephant in the advertisement of the respondent, customers or common man believe that the respondent product is that of the applicant and it is further stated in paragraph 10 and 11 that the customers and traders bewildered and wondering in amazement whether the respondent is in some way or the other connected or associated with the applicant and that would also assume that the product of the respondent has, in fact, emanated from the applicant. Therefore, the applicant only apprehends that the public would be under the impression that the respondent's product is that of the applicant and having regard to the reasons stated above, such hypothetical assumption cannot be considered in the absence of any proof adduced by the applicant. In the typed set of papers, the applicant has produced the copy of the trade mark and no materials were furnished about the dropping of sales by reason of the advertisement of the respondent. Therefore, in order to prove the infringement, the applicant has to produce all such materials. Hence, according to me, no prima facie case has been made out by the applicant against the respondent. 25. Therefore, in order to prove the infringement, the applicant has to produce all such materials. Hence, according to me, no prima facie case has been made out by the applicant against the respondent. 25. Hence, the Application is dismissed. No costs. However, I make it clear that the observations made by me in this order is only for the purpose of disposing of the present application and it is always open to the applicant to substantiate his case by adducing proper evidence during trial and the observations made in this order will not stand in the way of getting a decree in favour of the applicant if the applicant is able to substantiate his case by letting in proper evidence.