ORAL ORDER DICTATED IN OPEN COURT : – This Miscellaneous appeal is filed by the plaintiff under Order 43, Rule 1(r) of the Code of Civil Procedure, 1908 being aggrieved of order dated 14-3-2022 passed by the learned 16th District Judge, Jabalpur in R.C.S. 146-A/2022 (Hindustan Bidi Manufacturing vs. Mr. Sunderlal Chhabilal and another). 2. The appellant’s grievance is that vide impugned order, the trial Court has rejected an application under Order 39, Rule 1 and 2, Civil Procedure Code and has refused to grant injunction in favour of the plaintiff. 3. Plaintiff’s case is that they are registered trade mark holder of ‘Calcutta Bidi’, which is registered under IV schedule of category 34 of the Trade Marks Act 1999 bearing registration No. 736773 and 1780832. 4. It is plaintiff’s case that plaintiff is registered under the provisions of Excise Act since 5-10-1994 and also under the Copyright Act since 2005. 5. It is submitted that defendant who is a manufacturer and seller of the identical product namely tobacco filled bidis obtained a copyright registration on 24-5-2021 claiming himself to be a user of that artistic work since 12-10-1999, Annexure R-3 and started selling his product which is deceptively similar to the trade mark of the present appellant under the name of “New Calcutta Bidi”. 6. It is submitted that this use of deceptively identical trade mark has caused dent to the business of the appellant/plaintiff who is a prior registered trade mark. It is further submitted that the learned trial Judge has ventured to carry out a detailed scrutiny which is not permissible under the law. It is submitted that the striking features of the trade mark registered for the appellant/plaintiff is that there is a mention of word ‘Calcutta Bidi’. 7. This is mentioned in three languages i.e. English, Hindi and Bangla. On the right hand side in a circle, a photo of child is affixed and then “numerals 95” are mentioned, below which, Howrah bridge is depicted. 8. It is submitted that the trial Court has held that disclaimer part i.e. use of word ‘Calcutta’ is not an exclusive prerogative of the plaintiff and then venturing into fine details like the mark used by the defendants contain sun rays below which Howrah bridge is depicted and then there is mention of words “New Calcutta Bidi” in English, Hindi and Bangla. 9. 9. Besides this, a photo is that of an adult and not of a child and the cover makes a mention in English that ‘smoking kills’ and in Hindi that ^/kweziku tku ysok gSA^ On the left hand side, No. 20 in Hindi and on right hand side, No. 20 in English is mentioned. The photograph of an adult is within a circle. Mentioning all these features, it is held by the learned trial Court that neither there is a photo of a child nor No. 95 is mentioned or there is no mention of sun rays on the trade mark of the plaintiff and taking these to be distinctive features has held that since defendant is having a registered copyright and is also registered under the provisions of the Excise Act, there is no infringement of the trade mark and has refused to grant injunction. 10. Learned counsel for the appellant has placed reliance on various judgments of the different High Courts and a Supreme Court. 11. Placing reliance on the judgment of the Bombay High Court in the case of Pidilite Industries Ltd. vs. S. M. Associates and others, 2003(5) Bom.C.R. 295 , it is submitted that in para 45, 46 and 47, the issue of disclaimer has been dealt with and placing reliance on the earlier judgment in the case of GRANADA Trade Mark, (1979) 13 RPC 303, it is observed that a disclaimer per se effects the question of whether or not confusion of the public is likely when that question is for determination under section 12(1), a context other than one that is concerned solely with the exclusive rights of a proprietor. 12. In para 47, it is held that regard should be taken to the whole of the plaintiffs mark including the disclaimed matter while deciding the question of infringement. A contrary view could lead to peculiar results. Take for instance where disclaimed word is written in the distinctive style with embellishments within, on or around it, and the Opponents mark also consists of the disclaimed word written in the same distinctive manner. Were it open to the Opponent to contend that the disclaimed word ought to be ignored there would be nothing left to compare. 13. Take for instance where disclaimed word is written in the distinctive style with embellishments within, on or around it, and the Opponents mark also consists of the disclaimed word written in the same distinctive manner. Were it open to the Opponent to contend that the disclaimed word ought to be ignored there would be nothing left to compare. 13. Similarly, reliance is placed on the judgment of the Supreme Court in Registrar of Trade Marks vs. Ashok Chandra Rakhit Ltd., AIR 1955 SC 558 wherein in para 9, it is held that “the disclaimer is only for the purposes of the Act. It does not affect the rights of the proprietor except such is arise out of registration. That is to say, the special advantages which the Act gives to the proprietor by reason of the registration of his trade mark do not extend to the parts or matters which he disclaims. In short, the disclaimed parts or matters are not within the protection of the statute.” 14. Reliance is placed on the judgment of Delhi High Court in the case of Sanofi India Ltd. vs. Universal Neutraceuticals Pvt. Ltd., 2015(3) AD (DELHI) 505. Drawing attention of this Court to para 26, it is submitted that it is settled law that the disclaimed portion does not take away the right of the trade mark considered as a whole. The essential feature of the said trade mark and trading style is UNIVERSAL which is being used by the plaintiffs since 1971. Therefore, the defendant in view of the above referred settled law cannot absolve itself from infringing the trademark of the plaintiffs and passing off its business as that of the plaintiffs. 15. It is submitted by learned counsel for the appellant that where certain trademarks are with disclaimer and certain trade marks are without disclaimer, then in that event, the trade marks without disclaimer will have precedence over the trade marks with disclaimer. 16. It is submitted that plaintiff has trademark of ‘Calcutta Bidi’ without disclaimer also registered in its name in the year 2013. 17. Learned counsel for the appellant has taken this Court to the judgment of Supreme Court in the case of Renaissance Hotel Holdings Inc. vs. B. Vijaya Sai and others, in Civil Appeal No. 404/2022 arising out of SLP (C) No. 21428/2019. It is submitted that section 29(2)(c) is important. 17. Learned counsel for the appellant has taken this Court to the judgment of Supreme Court in the case of Renaissance Hotel Holdings Inc. vs. B. Vijaya Sai and others, in Civil Appeal No. 404/2022 arising out of SLP (C) No. 21428/2019. It is submitted that section 29(2)(c) is important. It is submitted that section 29 deals with infringement of registered trade marks. 18. Sub-section (2) clause (c) provides that it will be treated to be infringement if the identity with the registered trade mark and identity of the goods and services registered with trade marks is likely to cause confusion on the part of the public or which is likely to have an association with the registered trade mark. 19. Reading from the judgment in case of Renaissance Hotel Holdings (supra), it is submitted that the controversy was between the plaintiff and the defendant and that plaintiff’s trade mark is ‘RENAISSANCE’ whereas that of the defendant was ‘SAI RENAISSANCE’. 20. It is held that use of word ‘RENAISSANCE’ by the defendants will be hit by sub-section (5) of section 29 of the Act. Infact, in para 43, it is mentioned as under : – “The legislative scheme is clear that when the mark of the defendant is identical with the registered trade mark of the plaintiff and the goods and services covered are similar to the ones covered by such registered trade mark, it may be necessary to prove that it is likely to cause confusion on the part of the public, or which is likely to have association with the registered trade mark. Similarly, when the trade mark of the plaintiff is similar to the registered trade mark of the defendant and the goods or services covered by such registered trade mark are identical or similar to the goods or services covered by such registered trade mark, it may again be necessary to establish that it is likely to cause confusion on the part of the public. However, when the trade mark of the defendant is identical with the registered trade mark of the plaintiff and that the goods or services of the defendant are identical with the goods or services covered by registered trade mark, the Court shall presume that it is likely to cause confusion on the part of the public.” 21. However, when the trade mark of the defendant is identical with the registered trade mark of the plaintiff and that the goods or services of the defendant are identical with the goods or services covered by registered trade mark, the Court shall presume that it is likely to cause confusion on the part of the public.” 21. Reliance is also placed on the judgment of Supreme Court in Ruston and Hornsby Ltd. vs. Zamindara Engineering Co., (1969) 2 SCC 727 wherein reading from para 6 and 8, it was observed by the Master of the Rolls in Saville Perfumery Ltd. vs. June Perect Ltd., 58 RPC 147 at 161 that infringement takes place not merely by exact imitation but by the use of a mark so nearly resembling the registered mark as to be likely to deceive. 22. In para 8, the Supreme Court found that there is a deceptive resemblance between the word “RUSTON” and the word “RUSTAM” and held it to be a case of infringement. 23. Reliance is also placed to the judgment of Delhi High Court in Rajesh Rathi and others vs. Golden Rathi Star Industries Ltd. and another in C. S (OS) Nos. 1424/2003 decided on 13-9-2013 where aspect of use of certain words as prefix before the main theme has been dealt in para 29, 30 and 31 and it is held in Greaves Cotton Limited vs. Mohammad Rafi and others, 180(2011) DLT 749, this aspect of use of suffix or prefix by a defendant was dealt and the Court held that “neither deletion of a part of a registered trademark nor the prefix or suffix of another word to it would validate the use of the registered mark by an unlicensed user, once it is shown that the part used by the infringer is an essential part of the registered trademark.” 24. Placing reliance on para 3, 5, 11, 12 and 16 in the case of Greaves Cotton Limited (supra), it is pointed out that no cause of action is conferred to a person who has applied for a registration of trade mark and cause of action will be conferred only to a person who has a registered trade mark in his favour. 25. In the present case, it is pointed out that defendant has applied for registration of a trade mark and yet, it is not registered in his name. 26. 25. In the present case, it is pointed out that defendant has applied for registration of a trade mark and yet, it is not registered in his name. 26. Reliance is also placed on the judgment of Delhi High Court in Societe Des Produits Nestle vs. Continental Coffee Ltd. decided on 7-12-2011 wherein the issue dealt is that whether registration of copyright of the defendant will give defence to the defendant against infringement of trade mark and it is answered that registration of copyright will not give any defence to the defendant for the infringement of the trade mark. In para 14 of the said judgment, it is held as under : – “14. In my view, mere registration under Copyright Act does not authorize the defendant to use the trademark of the plaintiff if it is found that the mark being used by him is identical or similar to the registered trademark of the plaintiff or it is proved that use of the impugned mark by him on identical goods is likely to cause confusion or create an impression of association with the registered trademark of the plaintiff. Registration under Copyright Act, in such a situation would be no defence to the charge of infringement and would not take the case out of the purview of section 29(1) and (2) of the Trademarks Act, 1999.” 27. Similarly, reliance is placed on the judgment of Madhya Pradesh High Court in Cox Distillery and another vs. Mcdowell and Co. Ltd. and another, AIR 1999 MP 118 wherein in para 15 and 16, it is held that even registration under the Excise Act will not permit infringement of the trade mark, inasmuch as registration under the Excise Act is entirely with a different purpose i.e. collection of revenue and control of regulation of the liquor trade. 28. Reliance is also placed on the judgment of Delhi High Court in Kaira District Co-operative Milk vs. Bharat Confectionery Works, ILR 1993 Delhi 285 wherein in para 16, the issue of registration under the Copyright Act raised by the defendants is dealt and it is held that registration under the Copyright Act will not confer any right on the defendant to use similar or identical trade mark ‘patent’ etc. which confers a separate and distinctive right in the owner in respect of the registration. 29. which confers a separate and distinctive right in the owner in respect of the registration. 29. Reliance is also placed on the judgment of High Court of Delhi in Aditya Birla Nuvo Ltd. vs. M/s R. S. Sales Corporation and another decided on 10th July, 2018 wherein, again a question as to what is the effect of a copyright registration by the defendant of its brand Peter England V.I.P. shoes ? Answering this in para 28, it is held that in view of the judgment in Societe Des Products Nestle (supra), registration of an artistic work under the Copyright Act, 1957 in favour of the defendants does not confer any right in the defendants to use plaintiff’s trade mark ‘PETER ENGLAND’ and/or the same does not afford a defense to the defendants in a suit for infringement. 30. Reliance is also placed on the judgment of the Delhi High Court in Glaxo Operations UK Ltd., Middlesex (England) and others vs. Samrat Pharmaceuticals, Kanpur, AIR 1984 Del 265 where issue was that there exists two copyright, then which copyright will have precedence ? 31. Answering this in para 23, it is held that the copyright which was registered prior in time will have precedence over the one which was registered subsequently. 32. In the present case, admittedly copyright of the plaintiff was registered in the year 2005 whereas that of the defendant in the year 2021. 33. Reliance is also placed on the judgment of the Madhya Pradesh High Court in the case of Laxmi Gudakhu Factory vs. Avinash Gudakhu Factory, 2001(4) M.P.L.J 264 = AIR 2000 MP 305 wherein it is held that at the time of consideration of an application for grant of injunction, no microscopic examination is permissible. 34. Referring to para 13 and 14, it is submitted that the question of infringement is to be approached from the point of view of a man of average intelligence and imperfect recollection and it has to be considered as to whether to such a man, the overall structural and phonetic similarity of the two marks will reasonably cause confusion to them. 35. 35. Reliance is also placed on the judgment of the Supreme Court in the case of Parle Products (P) Ltd. vs. J. P. and Co., Mysore, (1972) 1 SCC 618 originating from Mysore High Court wherein in para 8 and 9 and referring to law laid down in the case of Karly’s Law of Trade Marks and Trade Names (9th edition, Paragraph 838), it is held that 8. According to Karly’s Law of Trade Marks and Trade (9th edition paragraph 838) : “Two marks, when placed side by side, may exhibit many and various differences yet the main idea left on the mind by both may be the same. A person acquainted with one mark, and not having the two side by side for comparison, might well be deceived, if the goods were allowed to be impressed with the second mark, into a belief that he was dealing with goods which bore tile same mark as that with which he was acquainted. Thus, for example, a mark may represent a game of football; another mark may show players in a different dress, and in very different positions, and yet the idea conveyed by each might be simply a game of football. It would be too much to expect that persons dealing with trade-marked goods, and relying, as they frequently do, upon marks, should be able to remember the exact details of the marks upon the goods with which they are in the habit of dealing. Marks are remembered rat her by general impressions or by some significant detail than by any photographic recollection of the whole. Moreover, variations in detail might well be supposed by customers to have been made by the owners of the trade mark they are already acquainted with for reasons of their own.” 9. It is therefore clear that in order to come to the conclusion whether one mark is deceptively similar to another, the broad and essential features of the two are to be considered. They should not be placed side by side to find out if there are any differences in the design and if so, whether they are of such character as to prevent one design from being mistaken for the other. They should not be placed side by side to find out if there are any differences in the design and if so, whether they are of such character as to prevent one design from being mistaken for the other. It would be enough if the impugned mark bears such an overall similarity to the registered mark as would be likely to mislead a person usually dealing with one to accept the other if offered to him. In this case we find that the packets are practically of the same size, the color scheme of the two wrappers is almost the same; the design on both though not identical bears such a close resemblance that one can easily be mistaken for the other. The essential features of both are that there is a girl with one arm raised and carrying something in the other with a cow or cows near her and hens or chickens in the foreground. In the background there is a farm house with a fence. The word “Gluco Biscuits” in one and “Glucose Biscuits” on the other occupy a prominent place at the top with a good deal of similarity between the two writings. Anyone in our opinion who has a look at one of the packets to-day may easily mistake the other if shown on another day as being the same article which he had seen before. If one was not careful enough to note the peculiar features of the wrapper on the plaintiffs goods, he might easily mistake the defendants’ wrapper for the plaintiffs if shown to him some time after he had seen the plaintiffs’. After all, an ordinary purchaser is not gifted with the powers of observation of a Sherlock Holmes. We have therefore no doubt that the defendants’ wrapper is deceptively similar to the plaintiffs’ which was registered. We do not think it necessary to refer to the decisions referred to at the Bar as in our view each case will have to be, judged on its own features and it would be of no use to note on how many points there was similarity and in how many others there was absence of it. 36. Learned counsel for the caveator in his turn submits that they are user of trade mark bidi since 12-10-1999 and are registered under the Excise Act from the same date. 36. Learned counsel for the caveator in his turn submits that they are user of trade mark bidi since 12-10-1999 and are registered under the Excise Act from the same date. They received a copyright registration for new Calcutta Bidi on 24-5-2021 and have been using the same since 12-10-1999. It is also submitted that plaintiff has no cause of action accrued in his favour so to file a case before a Court at Jabalpur having territorial jurisdiction at Jabalpur. 37. Reliance is placed on section 28(2) to point out that the exclusive right to the use of a trade mark given under sub-section (1) shall be subject to any conditions and limitations to which the registration is subject. 38. Learned counsel for the caveator submits that infact there is a disclaimer to the words “Kolkata” and, therefore, no infringement can be inferred as is sought by the plaintiff. 39. Placing reliance on section 30(2)(b) of the Trade Marks Act, 1999, it is submitted that “a trade mark is registered subject to any conditions or limitations, the use of the trade mark in any manner in relation to goods to be sold or otherwise traded in, in any place, or in relation to goods to be exported to any market or in relation to services for use or available or acceptance in any place or country outside India or in any other circumstances, to which, having regard to those conditions or limitations, the registration does not extend.” 40. It is submitted that section 30(2)(b) authorizes the defendant to use similarly placed trade mark and, therefore, there is no question of any infringement. 41. Reliance is placed on the judgment of the Supreme Court in the case of Parakh Vanijya Private Limited vs. Baroma Agro Product and others, (2018) 16 SCC 632 wherein para 6, 7 and 8 have been referred to and it is held that where the trade mark is registered with the disclaimer, that registration will not give exclusive right of use. Thus, it is submitted that since disclaimer is used to use of word “Kolkata” in the registered trade mark of the year 2005 will not permit the plaintiff to seek exclusion of use of these words by the defendant. 42. Thus, it is submitted that since disclaimer is used to use of word “Kolkata” in the registered trade mark of the year 2005 will not permit the plaintiff to seek exclusion of use of these words by the defendant. 42. Reliance is also placed on the judgment of the Division Bench judgment of Calcutta High Court in the case of Heinz Italia S.R.L. and Heinz India Pvt. Ltd. vs. Dabur India Ltd., S. K. Distributors and Blue Cross Chemist and Druggist 2007 SCC online Cal 665. 43. Reliance is placed on para 9 and 13 to submit that these issues which have been raised in this appeal are whether words “Calcutta” for which there is a disclaimer in the trade mark registration certificate of 1997 will entitle the defendants to use disclaimed word “Calcutta” despite there being no disclaimer in the subsequent registered trade mark of the year 2013 and, therefore, whether registration of defendants under the Copyright Act or Excise Act will permit him to use similar trade mark namely “New Calcutta Bidi” merely on the basis of certain distinctive feature like use of rising sun rays and instead of use of a child within the circle, use of adult despite having many other similarities like use of Howrah Bridge, use of three languages i.e. Hindi, English and Bangla and also use of the similar colour combination which is used by the plaintiff. 44. Learned counsel for the caveator has placed reliance on the judgment of Delhi High Court in M/s Anshul Industries vs. M/s Shiva Tobacco Company, ILR, (2007) I Delhi 409 so also in the case of Automatic Electric Ltd. vs. R. K. Dhawan and another, 1999(1) AD (Delhi) 603 so also in the case of Indian Hotels Company Ltd. and another vs. Jiva Institute of Vedic Science and Culture, 2008(37) PTC 468 (DEL) so also the judgment of Bombay High Court in Bal Pharma Ltd. vs. Centaur Laboratories Pvt. Ltd., 2002(24) PTC 226 Bom and the judgment of the Supreme Court in the case of Midas Hygiene Industries (P) Ltd. vs. Sudhir Bhatia, (2004) 3 SCC 90 to submit that no injunction could have been granted by the trial Court and the application has been rightly dismissed by the trial Court. 45. 45. On a close perusal of the judgment rendered in M/s Anshul Industries (supra), the Delhi High Court has infact held that when question of deceptive similarity between the two marks is to be decided, then it cannot be decided by keeping both of them by the side of each other as consumer may not get such an opportunity. 46. The question of deceptive similarity is to be determined keeping in mind the educational and social status of target consumer. 47. In the case of Indian Hotels Company Ltd. (supra), the distinguishing feature is that there was distinction between the businesses of the petitioner and the respondents and under such facts and circumstances, the High Court held that since the appellant carries on business in spas, it can continue using trade mark of the respondent as the said trade mark is used by the respondent only for manufacturing its Ayurveda product. 48. Thus, the theme is that when there is a difference of businesses, then use of identical trade mark may not be injuncted. 49. The Supreme Court in Midas Hygiene Industries Private Ltd. (supra) was dealing with the issue that the appellant was asserting the ownership of copyright in the packaging containing the words ‘Laxman Rekha’. The defendant did not submit any explanation for adopting ‘Magic Laxman Rekha’. A Single Judge of the High Court granted injunction preventing the respondents from using words ‘Laxman Rekha’ in their trade. The Division Bench vacated the stay. 50. The Supreme Court held that in cases of infringement, either of trade mark or of copyright, normally an injunction must follow. Mere delay in bringing action is not sufficient to defeat grant of injunction. 51. Thus, it is evident that none of the judgments cited by learned counsel for the caveator are helpful to the respondents. 52. Learned counsel for the appellant submits that the judgment of the Calcutta High Court in the case of Heinz Italia (supra) has been overruled and has no application to the facts and circumstances of the case. 53. The next issue is as to the territorial jurisdiction. In the plaint itself, the plaintiff has mentioned in paragraph 42 that cause of action has arisen within the territorial jurisdiction of Jabalpur inasmuch as defendant No. 1 is residing and carrying on business within the jurisdiction of this Hon’ble Court and also the goods of defendant Nos. 53. The next issue is as to the territorial jurisdiction. In the plaint itself, the plaintiff has mentioned in paragraph 42 that cause of action has arisen within the territorial jurisdiction of Jabalpur inasmuch as defendant No. 1 is residing and carrying on business within the jurisdiction of this Hon’ble Court and also the goods of defendant Nos. 1 and 2 bearing infringing trade mark/label comprising the words ‘Calcutta bidi’ and picture of Howrah bridge are being sold by the defendants within the jurisdiction of this Hon’ble Court in Jabalpur and defendants are carrying business in Jabalpur, therefore, this Hon’ble Court has a jurisdiction to entertain, try and disposed of the suit in respect of the registered trade mark. In reply, defendant submits that the plaintiff is not having any business within the territorial business in Jabalpur. 54. It is further mentioned that power of attorney has no right to file a suit, no cause of action arose on 1-12-2021. The power of attorney is given to Sudhir Kumar Jain for a period of two months and that period of power of attorney is over on the date of filing of the suit. 55. At this stage, learned counsel for the appellant submits that thereafter a fresh power of attorney was given in favour of the power of attorney holder. However, it is evident from the reply filed by the defendant that they have not denied the fact that they are not carrying the business of selling bidi with a similar wrapper having picture of Howrah bridge and using the words ‘Calcutta Bidi’ with prefix ‘New’ 56. Thus, in the light of the decision of the Madhya Pradesh High Court in the case of Laxmi Gudakhu Factory (supra), at this stage, there was no need for a roving enquiry and the trial Court was only required to see from the point of view of man of average intelligence and imperfect recollection that whether the product sold by the defendant is deceptively similar or not. 57. 57. This aspect has been dealt with by the Supreme Court in the case of Parle Products Private Ltd. (supra) and that being the spirit of the law, therefore, it being a matter of evidence as to what are the points of similarity and dissimilarity, injunction should not have been denied by the trial Court in favour of the plaintiff after conducting a roving enquiry without having regard to the legal issues namely and admittedly that defendant is not a registered trade mark holder of “New Calcutta Bidi”. Registration under the Copyrights Act will not give any exclusive right to the violation of trade mark as has been held in the case of Societe Des Produits Nestle (supra), Kaira District Co-operative Milk (supra) and Aditya Birla Nuvo Ltd. (supra). 58. Similarly, registration under the Excise Act will not create any equitable right in favour of the defendant to use similar or deceptively similar trade mark as held by the Madhya Pradesh High Court in the case of Laxmi Gudakhu Factory (supra). 59. As Lioyd-Jacob J. put it in Ford-Werkes Application, (1955) 72 R.P.C. 191 at 195 lines 30 to 38, “a disclaimer does not affect the significance which a mark conveys to others when used in the course of trade. Disclaimers do not go into the market place, and the public generally has no notice of them. In my opinion, matter which is disclaimed is not necessarily disregarded when question of possible confusion or deception of the public, as distinct from the extent of a proprietors exclusive rights, are to be determined. In making the comparison under section 12(1), therefore, I consider that I must have regard to the whole of the opponents mark, including the disclaimed matter, and must assume use of it in a normal and fair manner for, inter alia, the applicants goods.” It reveals that disclaimers do not go to the market place. Product be identical, deceptively similar use of trade mark cannot be allowed at the cost of the plaintiff. 60. Therefore, the application for injunction is allowed. It is directed that during the pendency of the suit, defendant will be restrained from using the trade mark “New Calcutta Bidi” and accordingly, the appeal is disposed of. 61. Product be identical, deceptively similar use of trade mark cannot be allowed at the cost of the plaintiff. 60. Therefore, the application for injunction is allowed. It is directed that during the pendency of the suit, defendant will be restrained from using the trade mark “New Calcutta Bidi” and accordingly, the appeal is disposed of. 61. It is directed that trial Court will make an attempt to conclude the trial within a period of six months without affording any undue adjournment to any of the parties.