ORDER : R.I. Chagla, J. Heard, Mr. Kamod, Ld. Advocate appearing for the Petitioner. 2. By this Petition, the Petitioner is challenging the registration of the impugned trade mark bearing no. 4076679 in class 32 granted by the Respondent No. 2, in favour of the Respondent No. 1, in respect of mineral and aerated waters and packaged drinking water. 3. It is stated that the present Petition has been duly served by hand upon the Respondent No. 1 on 22nd December, 2022 as well as upon Respondent No. 2, by email on 15th February, 2023 and by registered AD post on 16th February, 2023. Apart from the above, the Respondents were also given notice/informed that the matter would be listed on 3rd March, 2023 and 17th April, 2023. It is specifically pointed out that Respondent No. 1 has refused to accept service of the notice. Accordingly, it is stated that Respondent No. 1's refusal to accept service amounts to good service. Affidavit of Service of one Mr. Dilip Palwankar dated 12th April, 2023 to that effect has been filed. 4. Considering, the Respondents have failed to appear, in spite of service, Mr. Hiren Kamod, Ld. Advocate for the Petitioner is pressing for interim relief in terms of prayer clause (d) i.e. for stay of the operation and effect of the registration of the trade mark bearing no. 4076679 in class 32 granted in favour of Respondent No. 1. 5. It is stated that the Petitioner has been using the trade mark Sunrich/SUNRICH labels at Exhibits A, B and C to the Petition inter-alia in respect of mineral and aerated waters and packaged drinking water since the year 2004-2005. It is stated that the said SUNRICH labels are original work of art under the meaning provided in the Copyright Act, 1957 and the Petitioner is the owner of the copyright subsisting in the said original artistic works subsisting in the said SUNRICH labels and has the exclusive right to use and reproduce the said SUNRICH labels wholly or substantially in any material form, including their colour combination, get up, layout and arrangement of features. 6. It is stated that the Petitioner has also secured registrations and is also the proprietor of the SUNRICH trade marks bearing nos. 6. It is stated that the Petitioner has also secured registrations and is also the proprietor of the SUNRICH trade marks bearing nos. 2735006, 2606455 and 1336220 in class 32, respectively, details whereof are set out in paragraph 5 of the Petition and copies of the certified copies of the entries made in the Register of Trade Marks for use in legal proceedings in respect thereof are at Exhibit D, E and F to the Petition. 7. It is stated that Petitioner has made large sales of the said goods bearing the SUNRICH trade marks/labels and has also taken efforts to popularize the same. Mr. Kamod draws my attention to Exhibit G to the Petition which is a copy of the statement containing the Petitioner's annual sales and sales promotional expenses in respect of the said goods/SUNRICH products from the year 2004-2005 to 2013-2014 and 2014-2015 to 2019-2020 duly certified by the Petitioner's Chartered Accountant and Exhibit H to the Petition which are Petitioner's specimen invoices showing sale of the Petitioner's said goods. 8. It is stated that in view of the above, the Petitioner's said goods bearing the said SUNRICH trade marks/labels have acquired valuable goodwill and reputation and the said SUNRICH trade marks/labels collectively as well as individually have been exclusively associated with the Petitioner and none else, including by all cross sections of people, urban and rural; literate, semi-literate and illiterate; men and women; rich and poor. 9. It is stated that the Petitioner has been protecting its rights in the said SUNRICH trade marks/labels. Copy of an order dated 28th April 2016 passed by the District Court, Parbhani whereby one Arihant Industries Ltd has inter alia submitted to a decree of permanent injunction restraining it from using the trade mark/label SUNRAY in terms of consent terms which were drawn to that effect is at Exhibit J to the Petition. 10. It is stated in or around 2nd week of December, 2021, the Petitioner's representative came across the Respondent No.1's goods/bottles in Beed inter alia bearing the YASHRICH trade mark/label which is closely and deceptively similar to and/or a substantial reproduction of the Petitioner's SUNRICH trade marks/labels. 10. It is stated in or around 2nd week of December, 2021, the Petitioner's representative came across the Respondent No.1's goods/bottles in Beed inter alia bearing the YASHRICH trade mark/label which is closely and deceptively similar to and/or a substantial reproduction of the Petitioner's SUNRICH trade marks/labels. The Petitioner, thereafter, conducted a search on the online database of the Trade Marks Registry for the trade mark YASHRICH in class 32 and learnt that the Respondent No.1 has applied for and wrongfully secured registration of the impugned trade mark bearing no. 4076679 in class 32 in respect of "mineral and aerated waters, packaged drinking water" on a proposed to be used basis as on 4th February, 2019. It is stated that the Respondent No.1 did not use the impugned trade mark in respect of the impugned goods but the impugned packaging/label, i.e., at the said time. Accordingly, on or about 18th December, 2021, the Petitioner filed a suit being Special Civil Suit No.1/2021 against the Respondent No.1 before the District Court at Beed to restrain the Respondent No.1 from infringing inter-alia the Petitioner's said registered trade mark SUNRICH, copyright, design and passing off, by the use of inter alia the trade mark YASHRICH/. Though, initially vide order dated 28th February, 2022, the District Judge passed ad-interim injunction order in terms of prayer clauses (a), (b), (c) and (d) of the Petitioner's Interim Application (Exh.5) against the Respondent No.1, vide order dated 25th March, 2022, the Ld. District Judge rejected the Petitioner's application below Exh.5 in Special Civil Suit No.1/2021 inter alia on the ground that the rival marks/labels SUNRICH and YASHRICH are not deceptively similar. Mr. Kamod tenders copies of the orders dated 21st December, 2021, 28th February, 2022 and 25th March, 2022 passed by the Ld. District Judge. 11. It is stated that being aggrieved by the said order dated 25th March, 2022, the Petitioner has preferred an appeal being AO/34/2022 and taken out a Civil Application therein being CA/9230/2022 before the Hon'ble High Court at Bombay, Bench at Aurangabad on 6th May, 2022, which are pending. 12. It is stated that on or about 14th December, 2022, the Petitioner has filed an opposition against the registration of the Respondent No.1's trade mark/trade mark label constituting of the word/expression YASHRICH as one of its leading, essential and prominent feature/part. 13. Mr. 12. It is stated that on or about 14th December, 2022, the Petitioner has filed an opposition against the registration of the Respondent No.1's trade mark/trade mark label constituting of the word/expression YASHRICH as one of its leading, essential and prominent feature/part. 13. Mr. Kamod submits that the Petitioner is the prior adopter, user and registered proprietor of the SUNRICH trade marks/labels. He submitted that the impugned trade mark consists of the word/expression YASHRICH as its leading, essential and prominent feature/part, which is closely and deceptively similar to the Petitioner's SUNRICH trade marks/labels constituting of the word/expression SUNRICH as one of its leading, essential and prominent feature/part. He submitted that the Petitioner is not claiming a monopoly in the suffix "RICH" forming part of the registered trade mark SUNRICH and the two rival trade marks must be compared as whole for the purpose of testing the deceptively similarity. It is stated that the adoption and registration of the impugned trade mark is deliberate, fraudulent and dishonest and done with a view to encash upon the enviable goodwill and reputation of the SUNRICH trade marks/labels. It is further stated that the rival goods are the same/similar and will be bought over the counter by the same set of consumers, including consumers of average intelligence and imperfect recollection, who are bound to mistake the Respondent No. 1's goods bearing the impugned trade mark YASHRICH with the Petitioner's said goods bearing the SUNRICH trade marks/labels. It is stated that the registration/use of the impugned trade mark is likely to cause confusion and/or deception on the part of the public as to the trade origin and are likely to mislead them into believing that they have some association with the Petitioner. It is stated that the Respondent No. 1 has wrongfully obtained the registration of the impugned trade mark in bad faith by playing fraud upon the Registrar and with a view to misuse the impugned registration and the same wrongly remains on the register and is liable to be expunged/cancelled/rectified from the register of trade marks as the Petitioner is prior adopter and user of the said SUNRICH trade marks/labels. It is stated that the Petitioner is aggrieved by the impugned registration. It is stated that the entry made in register without sufficient cause and is wrongly remaining on the register and must be cancelled/expunged/rectified from the register of trade marks accordingly. 14. It is stated that the Petitioner is aggrieved by the impugned registration. It is stated that the entry made in register without sufficient cause and is wrongly remaining on the register and must be cancelled/expunged/rectified from the register of trade marks accordingly. 14. It is stated that the Petitioner has suffered and is further likely to suffer irreparable loss to its trade and reputation. Also, considering the nature of goods, the present Petition involves the protection of public interest and the same should not be allowed to be jeopardized at the hands of Respondent No. 1, who, by the use of the impugned trade mark/registration, have placed an instrument of fraud in the hands of trade which will adversely affect and prejudice the interest of consumers. He submitted that the Respondent No.1 is relying on his illegal registration in the suit proceedings. It is stated that there are no equities in favour of Respondent No. 1 who has knowingly, deliberately and/or dishonestly adopted/wrongfully secured the impugned registration of the impugned trade mark. The balance of convenience is in favour of the Petitioner and against the Respondent No. 1 cannot claim any equities. It is therefore stated that the interest of the Petitioner and the consuming public ought to be protected by granting ad-interim/interim reliefs at this stage. 15. It is stated that in similar cases, Courts, including this Court, has granted ad-interim reliefs. Mr. Kamod places reliance on the following judgments in support of his submissions for deceptive similarity and staying the operation of the impugned registration: 1. Amritdhara Pharmacy v. Satydeo Gupta [ AIR 1963 SC 449 ]; 2. Hoffmann-La Roche & Co. Ltd v. Geoffrey Manners & Co. Pvt. Ltd [1970 AIR 2062]; 3. Hiralal Parbhudas v. Ganesh Trading Company and Ors. [1984 PTC 155 (Bom)]; 4. Pidilite Industries Ltd. v. S.M. Associates and Ors. [2004 (28) PTC 193 Bom]; and 5. TheSilverMist & Anr. v. Ashok Dharmesh Shah & Anr [Commercial Miscellaneous Petition (L) No. 4487 Of 2023]. 16. Heard Mr. Kamod, Ld. Advocate for the Petitioner, and perused the material on record. It is a settled principle of law that whether two trade marks are likely to lead to confusion or deception is a question of first impression and that it is for the Court to decide this question. 16. Heard Mr. Kamod, Ld. Advocate for the Petitioner, and perused the material on record. It is a settled principle of law that whether two trade marks are likely to lead to confusion or deception is a question of first impression and that it is for the Court to decide this question. My first impression when I saw the rival trade marks was that the leading and essential feature of the impugned trade mark is YASHRICH, which, when considered as a whole is certainly deceptively similar to the Petitioner's prior registered and used SUNRICH trade marks/ labels. The principles for ascertaining the deceptive similarity of trade marks are well settled and have been laid down by the Division Bench of this Court in Hiralal Parbhudas v. Ganesh Trading Company (supra), which are as under: "5. What emerges from these authorities is (a) what is the main idea or salient features, (b) marks are remembered by general impressions or by some significant detail rather than by a photographic recollection of the whole, (c) overall similarity is the touchstone, (d) marks must be looked at from the view and first impression of a person of average intelligence and imperfect recollection, (e) overall structure, phonetic similarity and similarity of idea are important and both visual and phonetic tests must be applied, (f) the purchaser must not be put in a state of wonderment, (g) marks must be compared as a whole, microscopic examination being impermissible, (h) the broad and salient features must be considered for which the marks must not be placed side by side to find out differences in design and (i) overall similarity is sufficient. In addition, indisputably must also be taken into consideration the nature of the commodity, the class of purchasers, the mode of purchase and other surrounding circumstances." 17. Applying the above principles to the present case and especially the tests of "the view and first impression of a person of average intelligence and imperfect recollection" and "marks must be compared as a whole, microscopic examination being impermissible", I have no hesitation in holding that the Respondent's impugned trade mark YASHRICH is deceptively similar to the Plaintiff's registered SUNRICH trade marks. The Plaintiff is not claiming a monopoly in the suffix "RICH" but in the trade mark SUNRICH as a whole, to which, as I observed earlier, the Respondent's impugned trade mark YASHRICH is deceptively similar. The Plaintiff is not claiming a monopoly in the suffix "RICH" but in the trade mark SUNRICH as a whole, to which, as I observed earlier, the Respondent's impugned trade mark YASHRICH is deceptively similar. Reference can made to the judgment in Amritdhara Pharmacy v. Satydeo Gupta (supra) wherein the two trade marks "Amritdhara" and "Lakshmandhara" were held to be deceptively similar. Further, the impugned registration is in respect of goods which are same/ similar to the goods in respect of which the Petitioner has secured registrations/using the said SUNRICH trade marks/labels. From the record, it appears that the Petitioner's SUNRICH trade marks/labels have acquired substantial goodwill and reputation by virtue of its open and continuous use since the last several years. Accordingly, there is a likelihood of confusion in the minds of trade and public at large in the event the two rival trade marks are considered. 18. Another relevant factor in the Petitioner's favour is that it is evidently the prior registered proprietor, adopter and user of the SUNRICH trade mark. Prima facie, considering the goodwill and reputation acquired by the Petitioner in its SUNRICH trade marks, the Respondent must be aware of and, in any event, ought to have been aware of the Petitioner's SUNRICH trade marks. In view thereof, the Respondent's adoption/registration of the impugned trade mark, at least prima facie, appears to be dishonest. The application for the impugned trade mark was filed on 4th February, 2019 on a proposed to be used basis and prima facie it appears that the Registrar of Trade Marks ought not to have granted the registration of the impugned trade mark in view of the provisions contained in section 11 of the Trade Marks Act . 19. The application for the impugned trade mark was filed on 4th February, 2019 on a proposed to be used basis and prima facie it appears that the Registrar of Trade Marks ought not to have granted the registration of the impugned trade mark in view of the provisions contained in section 11 of the Trade Marks Act . 19. I am reminded of the judgment of a Division Bench of this Court in Ciba Ltd., Basle Switzerland v. M. Ramalingam and S. Subramanian trading in the name of South Indian Manufacturing Co., Madura and another reported in AIR 1958 Bombay 56, in which the Division Bench of this Court held that in rectification proceedings, when a case is sought to be made out that a particular trade mark is likely to deceive or cause confusion, the contest is not so much between the parties to the litigation as it is a contest between the party defending his right to a particular trade mark and the public, and the duty of the Court must always be to protect the public irrespective of what hardship or inconvenience it may cause to a particular party whose trade mark is likely to deceive or cause confusion. In paragraph 5, the Division Bench said: "5. Now, in considering both Section 46 and Section 10 it has got to be remembered that the primary duty of the Court is towards the public and the maintenance of the purity of the register. When a case is sought to be made out that a particular trade mark is likely to deceive or cause confusion, the contest is not so much between the parties to the litigation as it is a contest between the party defending his right to a particular trade mark and the public, and the duty of the Court must always be to protect the public irrespective of what hardship or inconvenience it may cause to a particular party whose trade mark is likely to deceive or cause confusion. The object of maintaining a trade mark register is that the public should know whose goods they are buying and with whom particular goods are associated. The object of maintaining a trade mark register is that the public should know whose goods they are buying and with whom particular goods are associated. It is therefore essential that the register should not contain trade marks which are identical or which so closely resemble each other that an unwary purchaser may be likely to be deceived by thinking that he is buying the goods of a particular person or a particular firm or a particular industry, whereas he is buying the goods of another person or firm or industry." 20. Considering the aforesaid, prima facie, I am of the view that the Petitioner having superior rights in its said trade mark/label SUNRICH and Defendant's subsequent adoption of a deceptively similar mark YASHRICH, the grant of prayer for interim relief is warranted. Accordingly, a strong prima facie case for staying the operation and effect of registration in respect of the impugned trade mark YASHRICH bearing no. 4076679 in class 32 is made out. The Petitioner would suffer if such stay is not granted. In the past, this Court has passed orders staying the operation and effect of the registered trade mark. Reference can be made to an order of this Court in The Silver Mist v. Ashok Dharmesh Shah (supra). The balance of convenience is also in favour of the Petitioner. Despite service, none has appeared for the Respondents today. In fact, it is clear from the record that the Respondent No.1 has refused service. There are no equities in favour of the Respondent No.1. In view of the above, there shall be an ad interim stay in terms of prayer clause (d) of the above Petition, which read as follows: (d) That pending the hearing and final disposal of the present petition, the operation and effect of the impugned registration in respect of the impugned trade mark bearing no.4076679 in class 32 be stayed. 21. The above Petition shall be listed for further consideration on 6th July, 2023. 22. The interim stay granted shall continue to operate till 10th July, 2023. 23. Counter Statement, if any, to be filed by the Respondents within a period of two weeks from today with a service of advance copy on the Advocates for the Petitioner. 24. This order will be digitally signed by the Private Secretary/Personal Assistant of this Court. 22. The interim stay granted shall continue to operate till 10th July, 2023. 23. Counter Statement, if any, to be filed by the Respondents within a period of two weeks from today with a service of advance copy on the Advocates for the Petitioner. 24. This order will be digitally signed by the Private Secretary/Personal Assistant of this Court. All concerned will act on production of a digitally signed copy of this order.