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41. It also applied for registration of the trade mark in Classes 9 and 16 of the Schedule to the Trade Marks Rules. Plaintiff No.2 also acquired trademark registration in respect of the marks 'Subha Aaj Tak', 'Khel Aaj Tak' and 'Saptahik Aaj Tak' in Class 9. Copies of the trade marks registration certificates have been filed along with the plaint.

4. In 2000, Plaintiff No.2 launched a 24-hour news channel under the name 'Aaj Tak'. Plaintiff No.1 was established by Plaintiff No.2 as a new corporate entity for managing and administering the 'Aaj Tak' news channel. Plaintiff No.2 also licensed the use of the word, logo and trade mark/trade name 'Aaj Tak' to Plaintiff No.1. The Plaintiffs state that 'Aaj Tak' is a household name in India and several other countries where the TV signals of the 'Aaj Tak' channel are beamed. The trade mark/service mark 'Aaj Tak' has therefore been continuously and uninterruptedly used by the Plaintiffs since 1995. The Plaintiffs states that the news channel has won several awards and citations. It is stated that the trader mark/service mark 'Aaj Tak' is an arbitrary, unique combination/collection of two words in Hindi language thereby making the mark a highly distinctive one. Members of the public associate the mark only with the Plaintiffs. It is stated that Plaintiff No.1 has become the exclusive perpetual licensee of trade mark/logo 'Aaj Tak'. It is stated that 'Aaj Tak' is a well known trade mark within the meaning of Section 2(1) (zg) of the Trade Marks Act, 1999 ('TM Act'). The Plaintiffs state that trade mark/service mark 'Aaj Tak' enjoys tremendous goodwill and reputation on account of the high quality of programming. It is stated that as on the week commencing 30th April 2005, 'Aaj Tak' had a total viewership of 19.4 million at an all-India level pointing to a market share of 25.5%. The expenses incurred by the Plaintiff No.1 in promoting the mark for the years 2000-01 to 2004-05 have been set out in para 6. The turnover figures for the same period have been set out in Para 7. For the year 2004-05 the turnover was Rs.1390.68 lakhs.

8. While directing summons to issue in the suit on 9th August 2005, the Court restrained the Defendants from making use of the mark 'Aaj Tak' or any deceptive variant thereof in respect of the Defendants' publications or in any manner till the order was modified, varied or vacated. That order has continued during the pendency of the suit.

9. In their written statement filed on behalf of all the Defendants, it is stated that the Defendants have been publishing the newspaper for ten years. The newspaper bears Registration No. 64796/96 having been registered in the office of the Registrar of Newspapers, under the Ministry of Information and Broadcasting. The copy of the certificate has been included in the documents filed with the written statement. It is next contended that the Plaintiffs were aware of the existence of newspaper since 1996 and, therefore, the suit was liable to be rejected both on the ground of laches and acquiescence. A reference is made to Section 33 of the TM Act. It is stated that newspapers fall in a different and distinct class of goods and service different from that in respect of which the trade mark registration is held by the Plaintiffs. The Defendants claim that it has an increasing number of members/subscribers since 1996. As on the date of filing the written statement, i.e. on 9th September 2005, there were around 5000 members/subscribers for the Defendants' newspaper. It is further stated that Defendant No.3 is a society registered under the Societies Registration Act, 1860 in accordance with its aims and objects and brought out the newspaper 'Aaj Tak' published in Hindi. The financial statement of Defendant No.3 for the years 2002 and 2004 has been enclosed. It is stated that newspaper is sold at a nominal rate of Rs.2 to cover the cost of publication and, therefore, is a social venture. It is denied that the Defendants are copying the trade mark of the Plaintiffs in any manner. It is denied that any investigator of the Plaintiffs visited the premises of the Defendants and met a correspondent of the Defendants' newspaper Mr. Manish Kumar or that he gave his visiting card or the rate list for advertisements. It is denied that 'Aaj Tak' is an arbitrary and unique mark. It is further submitted that the Defendants' newspaper is governed by the Press and Registration of Books Act ('PRB Act') whereas the Plaintiffs are running a TV channel. Therefore, the Defendants were exercising their legal rights to publish the newspaper. It is submitted that in common parlance, in respect of news, it is generally said: 'Kya Hai Aaj Tak Ki Kabhar' and from those words the words 'Aaj Tak' was appropriately used for the Defendants' newspaper in Hindi. The Defendants claim to have eminent subscribers and, therefore, no cause of action for a suit for infringement or passing off has arisen.

17. Mr. Saurabh Srivastava, learned counsel appearing for the Plaintiffs submitted that this was a case of infringement of the registered trade mark of the Plaintiffs and the Defendants contention that the PRB Act permitted the Defendants to publish their newspaper using an identical mark was no answer to the infringement in terms of the TM Act. He submitted that 'Aaj Tak' was an arbitrary and distinct mark and the Plaintiffs are the prior users thereof. He contended that the field and activity of Defendants viz., publishing newspapers was closely related to the principal activity of the Plaintiffs viz., news broadcasting, and that was causing a high degree of confusion in the minds of the public. According to him, there was a clear infringement of the registered mark of the plaintiffs in terms of Section 29 of the TM Act. Reliance was placed on the decisions in Playboy Enterprises v. Bharat Malik 2001 PTC 328 (Del), Century Traders v. Roshan Lal Duggar 15 DLT (1979) 269, Ziff-Davis Inc. v. Dr. D.K. Jain 1998 PTC (18), Novartis AG v. Wanbury Ltd. 2005 (31) PTC 75 (Del) and Bengal Waterproof Ltd. v. Bombay Waterproof Mfg. Co. 1997 PTC (17). He further pointed out that as the Defendants failed to avail of the opportunity of leading evidence the Plaintiffs' case was virtually uncontested. He relied upon the decisions in Swaran Singh v. State of Punjab (2003) 1 SCC 240 and Mohd. Naved v. Hindustan Petroleum Corporation 2004 (1) MPHT 16.