Ashim Kumar Banerjee, J. - (1.) Plaintiff being a registered holder of the trade mark "VIP" has brought this action against the defendant for infringement of trade mark and copyright belonging to the plaintiff and for other reliefs. An interim application has been made by the plaintiff, inter alia, praying for injunction restraining the respondent from using the mark "VIP" in relation to any hosiery products or readymade garments similar to the mark of the petitioner as also for other consequential relief. On the said application being moved on 29th October, 1999 an ad interim order of injunction was passed restraining the respondent from using the trade mark herein. The said interim order is still continuing. Now the matter has come up for final hearing before me.
(2.) Mr. Sudipta Sarkar, learned counsel appearing for the plaintiff/petitioner submits that since he is the holder of the registered trade mark under the Trade and Merchandise Marks Act, 1958 as well as under the Copyright Act the plaintiff is entitled to use the said mark "VIP" in any of its products and none others are entitled to use the same. Mr. Sarkar has prayed for continuation of the ad interim order passed on 29th October, 1999 till the disposal of the suit.
(3.) Mr. Bhaskar Sen, learned counsel appearing for the defendant has contended that the application of the plaintiff/petitioner is liable to be dismissed on the following grounds : (i) There has been no document annexed to the pleadings to show that the mark which was originally registered in favour of the plaintiff/petitioners have been renewed from time to time. In absence of such valid registration as of date and more so since the application of the defendant for registration of such mark is pending with the concerned authority the defendant is entitled to carry on its business by using the mark "VIP". (ii) This application is defeated by delay and acquiescence ; (iii) The mark used by the plaintiff and the mark used by the defendant are not identical and/or similar and there cannot be any confusion amongst the ultimate consumers which could entitle the plaintiff to bring an action for passing off ; (iv) No particulars relating to sale of the products having the mark "VIP" has been disclosed by the plaintiff. With regard to the first point my attention has been drawn to the latest certificate issued by the authority concerned. Mr. Sarkar submitted that by mistake the latest certificate had not been annexed and on instruction he contended that all the registration certificates issued by the concerned authority are still valid. Hence the first ground of Mr. Sen is not tenable on the factual score.;