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18. The learned Counsel for the applicant submits that their trade mark triple power is duly registered and a certificate was issued to that effect on 10.8.92. He further submits that the artistic work for the label triple power detergent cake was also registered under the Copy right Act on 25.8.95 and in such circumstances this itself is sufficient to prove that their trade mark triple power in respect of detergent is infringed by the respondent's unregistered trade mark "Sun Power" detergent cake. For this proposition, he relies on the following decisions:

23. The learned Counsel for the plaintiff also relied on the decision of the Supreme Court reported in 2001 (1) CTMR 288 (SC) (Cadila Health Care Limited v. Cadila Pharmaceuticals Limited), especially the following passage giving guidelines by the Supreme Court for deciding the question of deceptive similarity in an action for passing off on the basis of unregistered trade mark:

20. Broadly stated, in an action for passing off on the basis of unregistered trade mark generally for deciding the question of deceptive similarity the following factors are to be considered:

(f) The mode of purchasing the goods or placing orders for the goods; and

(g) Any other surrounding circumstances which may be relevant in the extent of dissimilarity between the competing marks.

Weightage to be given to each of the aforesaid factors depending upon facts of each case and the same weightage cannot be given to each factor in every case.

24. On the other hand the learned Counsel for the respondent submitted that there is no copy right for the word 'Power' and therefore there is no question of any infringement of applicant's copyright. He further submitted that the respondent has been marketing her products from 1987 onwards that too, only in Andhra Pradesh and at this stage no injunction could be granted against her. He further submitted that the trade mark has been granted to one K. Dhanapal trading as Gold Soap Co., whereas the applicant is M/s. Narmada Chemicals (P) Ltd. and therefore the suit itself is not maintainable. He relied on the decision of the Delhi High Court reported in 2002 (1) CTMR 16 (The Gillette Company v. A.K. Stationery) to submit that the respondent could be permitted to use the impugned trade mark when there is delay on the pat of the plaintiff in filing the suit. He also relied on an unreported decision of the Delhi High Court dated 27.9.85 made in I.A.No. 4860/1984 in suit No. 146/1998 to submit that in 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 plaintiffs. He pointed out that the applicant's trade mark is triple power, active power, etc. Whereas the respondent's trade mark is 'Sun Power' which is easily distinguishable. He also submitted that insofar as the unregistered trade mark of the applicant is concerned the action for the infringement will not arise as an action for passing off can be taken by a registered proprietor of a registered trade mark.