JUDGMENT Hon’ble Saumitra Dayal Singh, J.—This appeal has been filed by the defendant in the suit, under Order 43 Rule 1(r) of the Code of Civil Procedure (hereinafter referred to as ‘the Code’) against the order passed by Additional District Judge, Court No. 5, Agra in Original Suit No. 1 of 2012 dated 23.1.2013. By that order the trial Court has allowed the application 8 Ga in part. It has thereby restrained the appellants from using the words ‘Panchhi’, ‘Pakshi’, ‘Pakshi Raj’ or ‘Pakshi’ in any other manner in the conduct of their trade and business. 2. Briefly, plaintiff-respondent No. 1, Kanhaiya Lal instituted Suit No. 1 of 2012 seeking relief of permanent injunction against the present appellants from using the trademark/trade name ‘Panchhi’ or ‘Pakshi’ or any other deceptively similar name in their business in any manner whatsoever either in making advertisement of their business or by printing or putting through labels or otherwise the above name on the polythene bags, boxes and containers to sell their products such as ‘petha, dalmoth and namkeen,’ etc. and also to restrain the appellants from passing of their goods as those of the plaintiffs sold from much before under registered trademark ‘Panchhi’. Other relief for delivery and destruction of all the polythene bags, etc. was also prayed for a decree for accounting was also specifically prayed for. The suit is pending. 3. In the aforesaid suit an application 8 Ga was filed under Order 39 Rule 1 and 2 read with Section 151 of the Code, for grant of an ad-interim injunction against the defendant-appellants from using the trademark/trade name ‘Panchhi’ or ‘Pakshi’ or any other deceptively similar name in their business in any manner whatsoever and other ancillary relief. 4. According to the plaintiff-respondent No. 1, (Kanhaiya Lal), his father Panchhi Lal @ Pancham Lal had started a business to manufacture and sell ‘petha’ and ‘dalmoth’ at Agra. Due to his labour and hard work that business flourished. Thereafter, the said Sri Panchhi Lal formed a partnership firm in the name and style ‘Panchhi Petha Store’ with his son plaintiff Kanhaiya Lal and another son Subhash Chandra being introduced as partners. The propriety business of Panchhi Lal was taken over by the newly formed partnership firm. 5. Due to his labour and hard work that business flourished. Thereafter, the said Sri Panchhi Lal formed a partnership firm in the name and style ‘Panchhi Petha Store’ with his son plaintiff Kanhaiya Lal and another son Subhash Chandra being introduced as partners. The propriety business of Panchhi Lal was taken over by the newly formed partnership firm. 5. In 1971 a trademark - ‘Panchhi ka petha aur dalmoth’ was got registered in favour of the above firm ‘M/s Panchhi Petha Store’, under the Trade Marks Act, 1999 (hereinafter referred to as the Act). After the death of Panchhi Lal, a registered settlement was reached between his heirs namely his wife Smt. Atar Devi; two sons Subhash Chandra and Kailash Chandra and his two sons Anil Kumar and Sunil Kumar. Under that registered settlement ‘permitted use’, as defined under Section 2(r)(ii)(c) of the Act was created in favour of the said Subhash Chandra. 6. Thereafter, on 3.7.2006, the plaintiff-respondent No. 1 got the registered trademark ‘Panchhi ka petha aur dalmoth’ renewed for a period of 10 years. It was also the case of plaintiff-respondent No. 1 that certain other trademark applications were filed by him for registration of other trademarks all pertaining of the name ‘Panchhi’. These are stated to be pending. 7. Plaintiff-respondent No. 1 also pleaded, from the year 1950’s Panchhi Lal, his sons, and now his grand sons have continuously been engaged in manufacture and sale of ‘petha’, ‘dalmoth’ and ‘namkeen’ etc. by the name ‘Panchhi ka petha aur dalmoth’ and that they have continuously used the word ‘Panchhi’ for more than 60 years in continuity. 8. It was a specific case of the plaintiff-respondent No. 1 while the plaintiff-respondents built up a reputation and goodwill of the trade name ‘Panchhi’, the defendant-appellants have infringed the trademark and or are passing of their goods by putting a deceptively similar mark ‘Pakshi’ in such a manner as to confuse the customers who may not be able to discern the difference between the trade mark “Panchhi” and “Pakshi”, especially on account of the deceptively similar mark deliberately created/adopted by the appellant/defendant which, reads like “Panchhi”, especially in Hindi. Despite slight difference in the spelling and the phonetics, a representation automatically and clearly arises on account of use of such trade mark that goods being manufactured and sold by the defendant-appellants are the same as manufactured and sold by the plaintiff-respondents under the trademark of ‘Panchhi’. 9. Then, plaintiff-respondent No. 1 filed documents in support of its claim being the trademark applications as also copies of their financial results to establish both existence of registered trademark or in the alternative, the first-to-use as also extent of use of the trademark ‘Panchhi’. Thus it was claimed the plaintiff had prior registration, prior user as also much higher business turnover resulting from such user. 10. The defendant-appellants entered appearance in the aforesaid suit and filed their written statement. According to them they were entitled to use the word ‘Pakshi Raj’ on the packing material, advertisement and other material, etc. related with manufacture or sale of goods as they had registered copyright over such art work. 11. Also, according to the defendant-appellants the word ‘Panchhi’ was a generic word and no trademark could be claimed over it. On facts, the defendant-appellants disputed similarity/ deceptive similarity in the marks used by the plaintiff-respondents and the defendant-appellants. They also claimed their own application for registration of trademark ‘Pakshi Raj’ was pending. 12. The trial Court then, decided application 8 Ga by the impugned order. It has taken note of the fact, the plaintiff-respondents had been using the word ‘Panchhi’ in association with their business of manufacture and sale of ‘petha, dalmoth and namkeen’ etc. from very long ago. The trial Court also noticed, Late Panchhi Lal @ Pancham Lal had obtained trademark registration in the year 1971 for use of the word ‘Panchhi ka petha aur dalmoth’. It also took note of the settlement reached between family members of said Panchhi Lal in respect of use of that trademark and also renewal of registered trademark for ten years from 30.7.2006. On the other hand, the trial Court also noted that the defendant-appellants did not have a registered trademark in their favour, in the name of ‘Pakshi’ or ‘Pakshi Raj’. 13. The trial Court then noticed the manner in which the word ‘Pakshi Raj’ has been depicted and used by the defendant-appellants. On the other hand, the trial Court also noted that the defendant-appellants did not have a registered trademark in their favour, in the name of ‘Pakshi’ or ‘Pakshi Raj’. 13. The trial Court then noticed the manner in which the word ‘Pakshi Raj’ has been depicted and used by the defendant-appellants. It opined, it was clearly being used to create a deceptively similar impression on the mind of the potential customer of the goods such as ‘petha, dalmoth and namkeen’ so as to confuse the customers into believing that the goods being sold by the defendant-appellants are the same as those being sold under the trade name ‘Panchhi’. 14. Upon the aforesaid prima facie examination of the facts and circumstances of the case, the trial Court has granted injunction. The said injunction has remained in force for more than 4 years inasmuch as no stay was granted in the present appeal. It is stated at bar that the suit itself has remained pending because the record of the trial Court had been summoned in the present appeal. 15. Assailing the aforesaid temporary injunction, learned counsel for the appellant has first submitted that the trade logo being used by the defendant-appellants is different from that of plaintiff-respondents. In this regard he has relied on the certain photographs. 16. Then, he submits, his trade logo is registered under the Copyright Act, 1957 therefore he is entitled to use the same. Further according to him a trademark application filed by the defendant-appellants is pending for use of word ‘Pakshi’. 17. Also, he submits, the allegation of infringement of trademark has to be examined in totality by comparing the logo used by the defendant-appellants and that used by the plaintiff-respondents. Based on such submissions, learned counsel for the appellants submits, there is no infringement. Next, learned counsel for the appellants submits, the plaintiff-respondents did not have a registered trademark and that the trademark ‘Panchhi’ had only been registered in the name of partnership firm of Panchhi Lal and his two sons. According to him, since dissolution of partnership firm, no one can use the trademark ‘Panchhi’. 18. He has also relied on some objection stated to have been filed by the Subhash Chandra against the registration of trademark name ‘Panchhi’, in the name Kanhaiya Lal. According to him, since dissolution of partnership firm, no one can use the trademark ‘Panchhi’. 18. He has also relied on some objection stated to have been filed by the Subhash Chandra against the registration of trademark name ‘Panchhi’, in the name Kanhaiya Lal. He submits, there is an existing dispute between Subhash Chandra and Kanhaiya Lal with respect to the use of trademark ‘Panchhi’ which is pending adjudication in O.S. No. 10 of 2010. 19. He also contends, the Registrar trademark has restrained the plaintiff-respondents from using the trademark ‘Panchhi’. Relying on Section 30(2)(b) of the Act, he submits, once the condition has been imposed on the use of trademark, there can be no infringement alleged. 20. Lastly, learned counsel for the appellant submits, the word ‘Panchhi’ is a generic word and no trademark can be claimed thereof. 21. To bolster his submission, learned counsel for the appellant first relied on a judgment of the Supreme Court in the case of M/s. S.M. Dyechem Ltd. v. M/s Cadbury (India) Ltd., AIR 2000 SC 2114 , to submit that the test to be applied in such a case is to see not only a common feature but also the difference in essential features in the mark in respect of which the plaintiff-respondents claims their rights. 22. Then, learned counsel for the appellant relied on another judgment of the Supreme Court in the case of Skyline Education Institute (Pvt.) Ltd. v. S.L. Vaswani and another, AIR 2010 SC 3221 , to submit that a word such as ‘Panchhi’ is a generic word and it can be used by anyone without infringement of trademark being claimed by the plaintiff-respondents. 23. Responding to the above, learned Senior Counsel appearing for the plaintiff-respondents submits, reliance placed by the appellant in the judgement in the case of M/s. S.M. Dyechem Ltd. (supra) is wholly misplaced inasmuch as the said judgment was expressly over ruled by a later pronouncement of the Supreme Court in the case of Cadila Health Care Ltd. v. Cadila Pharmaceuticals Ltd., AIR 2001 SC 1952 , wherein the Supreme Court has held below : “18.We are unable to agree with the aforesaid observations in Dyechem’s case (supra). As far as this Court is concerned, the decisions in the last four decades have clearly laid down that what has to be seen in the case of a passing off action is the similarity between the competing marks and to determine whether there is likelihood of deception or causing confusion. This is evident from the decisions of this Court in the cases of National Sewing Thread Co. Ltd.’s case (supra), Corn Products Refining Company’s case (supra), Amritdhara Pharmacy’s case (supra), Durga Dutt Sharma’s case (supra), Hoffmann-La Roche & Co. Ltd.’s case (supra). Having come to the conclusion, in our opinion incorrectly, that the difference in essential features is relevant, this Court in Dyechem’s case (supra) sought to examine the difference in the two marks Piknic and Picnic. It applied three tests, they being 1) is there any special aspect of the common feature which has been copied ? 2) mode in which the parts are put together differently i.e. whether dissimilarity of the part or parts is enough to make the whole thing dissimilar and 3) whether when there are common elements, should one not pay more regard to the parts which are not common, while at the same time not disregarding the common parts ?. In examining the marks, keeping the aforesaid three tests in mind, it came to the conclusion, seeing the manner in which the two words were written and the peculiarity of the script and concluded that the above three dissimilarities have to be given more importance than the phonetic similarity or the similarity in the use of the word PICNIC for PIKNIK. 19. With respect, we are unable to agree that the principle of phonetic similarity has to be jettisoned when the manner in which the competing words are written is different and the conclusion so arrived at is clearly contrary to the binding precedent of this Court in Amritdhara’s case (supra) where the phonetic similarity was applied by judging the two competing marks. Similarly, in Durga Dutt Sharma’s case (supra), it was observed that in an action for infringement, the plaintiff must, no doubt, make out that the use of the defendants mark is likely to deceive, but where the similarity between the plaintiffs and the defendants 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 plaintiffs rights are violated. 20. Lastly, in Dyechem’s case (supra), it was observed in para 54 as under: “As to scope of a buyer being deceived, in a passing-off action, the following principles have to be borne in mind. Lord Romer, L.J. has said in Payton & Co. v. Snelling, Lampard & Co., (1900) 17 RPC 48, that it is a misconception to refer to the confusion that can be created upon an ignorant customer that the Courts ought to think of in these cases is the customer who knows the distinguishing characteristics of the plaintiffs goods, those characteristics which distinguish his goods from other goods in the market so far as relates to general characteristics. If he does not know that, he is not a customer whose views can properly be regarded by the Court. (See the cases quoted in N.S. Thread & Co. v. Chadwick & Bros., AIR 1948 Mad 481, which was a passing-off action.) In Schweppe’s Case (1905) 22 RPC 601 (HL) Lord Halsbury said, if a person is so careless that he does not look and does not treat the label fairly but takes the bottle without sufficient consideration and without reading what is written very plainly indeed up the face of the label, you cannot say he is deceived. These observations appear to us to be contrary to the decision of this Court in Amritdhara’s case (supra) where it was observed that the products will be purchased by both villagers and townfolk, literate as well as illiterate and the question has to be approached from the point of view of a man of average intelligence and imperfect recollection. A trade may relate to goods largely sold to illiterate or badly educated persons. The purchaser in India cannot be equated with a purchaser of goods in England. A trade may relate to goods largely sold to illiterate or badly educated persons. The purchaser in India cannot be equated with a purchaser of goods in England. While we agree that in trade mark matters, it is necessary to go into the question of comparable strength, the decision on merits in Dyechem’s case (supra) does not, in our opinion, lay down correct law and we hold accordingly.” 24. Then, relying on para 33 and 35 of that judgement in the case of Cadila Health Care Ltd. (supra) learned Senior Counsel submitted, in the Indian context the Supreme Court has recognised the principle where trademark is written, slight difference of word and slight difference in spelling may sound phonetically the same. In dealing with the cases relating to passing of, an important test to be applied is whether misrepresentation is of such a nature as is likely to cause confusion to an ordinary consumer of one product being another, due to similarity of marks and other surrounding factors. 25. There is no dispute to the fact, the goods manufactured and sold by the plaintiff-respondents and the defendant-appellants are similar being ‘petha, dalmoth and namkeen’. It is also not disputed, the location of business both plaintiff and defendant is in the same city namely, Agra, a tourist destination of international repute. Also, there is no difference in modus of business of both parties to the dispute, pleaded. 26. It is then claimed, the plaintiff respondent No. 1 having used, registered and built the trade mark ‘Panchhi’ for decades, it has reaped huge financial gains from such use which have been brought on record and the defendant-appellant is passing of his goods (that are identical in description to those of the plaintiff-respondent No. 1) as goods sold under the trade mark ‘Panchhi’. 27. Here, it has been further submitted, the half consonant ‘ka’ (written in Hindi) in the word ‘Pakshi’, has been used in a manner so as not to be read as ‘Pakshi’ but, in fact, it has been placed away and much below the top line (‘shirorekha’) such that in first flush an unsuspecting reader is likely to miss/ignore the half consonant ‘ka’ and to pronounce the word “Pachhi” which is deceptively and definitely similar to the word “Panchhi” both phonetically as also because ‘Pachhi’ is not a valid word in Hindi. The reader is thus bound/likely to rationalise, read and pronounce it as ‘Panchhi’, the name he may be expected to be searching or looking for at the tourist destination Agra. 28. He would also submit, in the instant case, the nature of mark is a word mark which has been deliberately placed by the defendant-appellants to confuse the ordinary consumer that the goods being sold by the defendant-appellants are the same as manufactured and sold by the plaintiff-respondents, from much before. The degree of resemblance between the visual marks and the phonetic similarity is also such as is likely to confuse an ordinary consumer. 29. Then, there is no dispute that the nature and description of goods dealt with by the plaintiffs and the defendants are similar if not same. Both parties being engaged in the same trade and the same city, the class of purchasers would also be the same. The manner and the conduct of the business by both the parties is also similar. 30. Thus, in the first place, the test of difference in essential features in the mark would be a wrong test to apply. Argument made by learned counsel for the appellant on that basis has to be rejected. 31. In respect of similarity in the two marks being used by the plaintiff and the defendant, I find the trial Court has granted the injunction upon sufficient appraisal of material on record. The satisfaction of the trial Court arising from such appraisal does not suffer from any fundamental or material error or illegality. Any further observation on the merits of that conclusion may affect the outcome of the suit proceedings itself. Hence, the matter is being left at this, at this stage. 32. Then, learned Senior Counsel for the plaintiff-respondents submits, alternatively, in the instant case, even if it is assumed for the purpose of this appeal that the trademark being claimed by the plaintiff-respondents is not registered or its registration suffers from some inadequacy, yet, the plaintiff-respondents and his grandfather made first use of that trademark about 60 years ago and his sons and grand children have continuously been using the same for many decades before the defendant-appellants started the business of manufacturing and sale of ‘petha, dalmoth and namkeen’, etc. Therefore, on the principle of prior user, he submits, the plaintiff-respondent was entitled to claim injunction against the defendant-appellants from passing of their goods by using the same. 33. In respect of this submission, he has also relied on the family settlement between the family members of Late Panchilal providing for permitted use of the trademark by his family members as also documents such as the accounts produced by the appellant to establish it had developed the goodwill and reputation under the trademark ‘Panchhi’. On the other hand he submits, the defendant-appellants did not produce any accounts before the trial Court in respect of their claim that they have been doing business in the name of ‘Pakshi’ or ‘Pakshi Raj’. 34. To the objection raised by learned counsel for the appellant that there is a dispute between the plaintiff-respondents and Subhash Chandra, he submits, under the registered settlement dated 23.6.1982, Subhash Chandra is a permitted user of the registered trademark and therefore there is no question of any infringement by him. 35. It appears, the trade mark being claimed by the plaintiff-appellant was registered and there is, in any case, a registered settlement allowing for permitted user of that trade mark by Subhash Chandra. Thus, leaving the issue of registration and adjudication of individual rights of the descendants of Late Panchilal, the defendant cannot draw any benefit to, infringe that trade mark, during pendency of suit proceedings against passing of, for that reason. 36. It is more so because it cannot be doubted, at this stage, registration apart, the plaintiff and his ancestors had been using the trade mark ‘Panchhi’ since last many decades and have reaped financial rewards there under. Thus, the order of the trial Court restraining the defendants to use a mark that is deceptively similar to the trademark of the plaintiff-respondents cannot be faulted at this stage of the proceedings. 37. Also, it is also clear that there is no restraint by the Registrar, Trademarks against the plaintiff-respondents from using the trademark ‘Panchhi’ and that the said Registrar had only provided - in respect of certain other applications for registration of trademark involving the use of word ‘Panchhi’, that during pendency of application for registration, the word “registered” may not be used by Kanhaiya Lal in respect of the particular trademark, pending its registration. From a bare perusal of the comparison of the noting made by the Registrar, Trademark on the application of Kanhaiya Lal, it is clear the argument advanced by learned counsel for the defendant-appellants is misconceived. It has to be rejected. 38. Then, learned counsel for the plaintiff-respondents has relied on a judgement of the Supreme Court in the case of Neon Laboratories Ltd. v. Medical Technologies Ltd and others, (2016) 2 SCC 672 , to submit that the scope of interference in appeal such as this is a very limited and no interference should be made unless the exercise made by the trial Court is palpably perverse. 39. In the instant, it appears, the trial Court has considered every aspect relevant for consideration in respect of prima facie case and has then found that use of the word ‘Pakshi’ by the defendant-appellants is deceptively similar to the trademark being used by the plaintiff-respondents. That finding is based on full appreciation. 40. Then, he has relied on paragraph 9 of that judgement to submit ‘ the first user’ rule is a seminal part of the Act and that even against a person holding registered trademark, the first user cannot be injuncted. In the instant case he submits, even if the fact of the registration of trademark in favour of the plaintiff-respondents is ignored for the time being, there is no dispute to the fact that the plaintiff-respondents is a first user and therefore, the said plaintiff-respondents was fully entitled to an injunction order against the defendant-appellants, more so when the trademark exists in favour of the plaintiff-respondents and the trademark sought to be registered by the defendant-appellants was deceptively similar to the trademark used by the plaintiff-respondents, was not granted. In fact, that application appears to have been rejected. 41. Having considered the arguments so made by the parties, I find that the argument made by the appellant in respect of the difference in the trade logo is not required to be finally adjudicated in the present proceeding. I find that the trial Court has on prima facie basis examined the aspect in sufficient detail and it has thereafter reached a prima facie conclusion that the trademark or logo being claimed by the defendant-appellants is deceptively similar to that of the plaintiff-respondents. I find that the trial Court has on prima facie basis examined the aspect in sufficient detail and it has thereafter reached a prima facie conclusion that the trademark or logo being claimed by the defendant-appellants is deceptively similar to that of the plaintiff-respondents. At this stage, the trial Court has acted on basis of material on record and upon application of mind thereto. The same does not suffer from any error. Any further observation on that conclusion so drawn by the trial Court may affect the merits of the trial. 42. As to the submission made by learned counsel for the appellant that the word ‘Panchhi’ is generic and therefore no infringement claim, it appears that though such argument may not be available in this case, at this stage, in view of one to one similarity in the nature and character of goods, place of business etc., coupled with the fact that the plaintiff-respondents had been using the trademark for very many years, it is difficult to accept that the word is generic at this stage of the proceedings. In any case it would be an issue that may, alongwith other issues be examined by the trial Court while deciding the suit. At this stage the prima facie case has been examined and has been found to exist in favour of the plaintiff respondent. 43. Undeniably there existed registered trademark in favour of the plaintiff Kanhaiya Lal which was renewed on 3.7.2006 for a period of ten years. Thus, the reasoning of the trial Court, on this aspect cannot be faulted, at present. Then, the submission made by learned counsel for the appellant that the plaintiff did not have a registered trademark does not appear to be correct. The discussion and observation made by the trial Court while passing the order granting an injunction appears to be well considered and well founded. 44. At the same time, even if it is assumed that there is some defect or inadequacy in registration of the trademark, yet, it is not disputed that the plaintiff-respondents have been using the trademark ‘Panchhi’ for very a long and therefore, on the principle of prior-user the plaintiff would continue to be entitled to the injunction during the pendency of the suit. Thus, the balance of convenience has also been correctly held in favour of the plaintiff-respondent. 45. Thus, the balance of convenience has also been correctly held in favour of the plaintiff-respondent. 45. As to consideration of factor of irreparable injury, it is seen, unless the injunction order had been granted by the trial Court, the defendant appellant would have continued to infringe the registered trade-mark of the plaintiff or in the alternative would have been permitted to pass off its goods by using a trade-mark deceptively similar to that of plaintiff-respondents over which, on prima facie basis the plaintiff-respondent has established prior use and claimed financial gains arising from such use. To allow this would have resulted in irreparable injury being caused to the plaintiff-respondent. The trial Court has, therefore, committed no error in granting temporary injunction during the pendency of the suit. 46. Again, it is an undisputed case before the trial Court that it is the plaintiff-respondents to make first user of the word ‘Panchhi’ and had been continuously using that word for the purpose of its business. In view of the finding of the findings of the trial Court as to prior user of the trade mark and financial gains achieved by the plaintiff upon use thereof, the issues of irreparable injury and balance of convenience also appear to be in favour of the plaintiff and against the defendant. The findings recorded by the trial Court, at this stage, are based on material and evidence on record and the trial Court has not committed any error less so such as may warrant interference in this appeal after four years of operation of the injunction order. 47. Accordingly, the appeal bereft of merit and is dismissed. No order as to costs. 48. Let the record of the trial Court be remitted at the earliest, so as to ensure expeditious disposal of the suit without allowing for any undue and long adjournment to either of the parties, preferably within one year from today.