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16. He would further submit that Defendants have belatedly contended that the services are dissimilar falling within entertainment channel, which is contrary to the plea taken in the pre suit correspondence exchanged between the parties. He submits that it is settled that the trade mark classifications are only administrative guidelines and what is required to be tested is the nature of the rival services.

17. He would further submit that plea taken in sur-rejoinder that there is no actionable goodwill is unacceptable since the Plaintiff is offering astrological services for last 20 years without any complaint. He would further submit that the defense of illegality in running the Plaintiff's business owing to SEBI violations proceeds on incorrect premise that the Plaintiff's entire business pertains to financial or market related astrological predictions. He submits that the Plaintiff is offering varied astrological and spiritual services since 2005 and the SEBI regulations relied upon by the Defendants have come into force in 2013. He submits in any event, the violation of SEBI regulations cannot be agitated in present forum.

"The registration of this trade mark shall give no right to the exclusive use of all descriptive matters. This is condition of registration that labels shall be used together."

37. The registration is thus granted with specific disclaimer that the labels shall be used together meaning that the words alongwith the logo of star makes the mark distinctive and not the individual components and neither the combination of individual components. The Plaintiff reads the disclaimer to mean that prohibition is from asserting any right in three individual components viz "Astro", "Dunia" and device of star and not against the claim for unique combination of words Astro Dunia. The disclaimer is required to be read in the background of the objection and the response to the objection and Sairaj 23 of 45 astro finalised (2).doc when so read, it is prima facie evident that the distinctiveness claimed was in entire combination of the features and not in the combination of the words ASTRO DUNIA. The words "Astro Dunia" is combination of the English word "Astro" and Hindi word "Dunia". Assuming that the mark "Astro Dunia" is coined by the Plaintiff, the mark is being used in respect of astrology services rendered by the Plaintiff. The words "Astro" and "Dunia" when taken separately are completely descriptive as the word "Astro" is clipped version of the English word 'astrology' and the word "Dunia" is a Hindi word which means 'world'. Taken together, the mark means the world of astrology and combination of the words results in the word "ASTRO DUNIA" being completely descriptive as relating to the world of astrology which are services rendered by the Plaintiff. The combination of the clipped version of the English word with the Hindi word prima facie does not make it inherently distinctive in our country where there is tendency of blending Hindi and English and spoken as such. In fact, the Cambridge Dictionary defines Hinglish as a mixture of Hindi and English, a special type of English used by the speakers of Hindi. Section 29(9) of Trade Marks Act, 1999 provides for infringement by spoken use of distinctive elements of a registered trade mark. The Plaintiff's mark being descriptive, there are no distinctive elements for application of the provisions of Section 29(9). The decisions of Encore Electronics Ltd vs Sairaj 24 of 45 astro finalised (2).doc Anchor Electronics (supra) and Renissance Hotel vs B. Vijaya Sai (supra) are distinguishable as in the present case, the Plaintiff's mark is non distinctive.

42. Applying the said principles to the Plaintiff's registered label mark, the words "Astro Dunia" with the device of star above the words is purely descriptive of the services offered to the public i.e. astrology. Even assuming arguendo that it is a coined word, the mark is not arbitrary and unconnected to the services offered by the Plaintiff. The Plaintiff's invoices itself uses the mark "ASTRO DUNIA" followed by the words "Your World of Astrology" which indicates the descriptive nature of the trade mark. In the Affidavit in reply, the Defendant has placed on record screen shots of various websites using the words Astro World and Astro ki duniya, which shows prima facie the common use of term. There cannot be any two views that the use of the words astrology or its clipped version combined with the word depicting the word "world" either in english or hindi would be used commonly for describing astrology services in India such as World of Astro, Astrology ki Duniya, Astro World, Astro Dunia etc. The fact that the invoices of the year 2005-2006 which are placed on record makes a reference to the words "Astro Dunia" and describes it as a world of astrology is a clear indicator that the same was used in a descriptive sense. Prima Sairaj 28 of 45 astro finalised (2).doc facie I do not find that the Plaintiff's mark "Astro Dunia" to be anything but descriptive.

57. On the other hand, the Defendant is operator of Tata Play DTH services which broadcasts various television channels relating to music, cinema, sports entertainment, and one of the channels is astrology services. It advertises its services as subscriber services and astrology linked life predictions. For purpose of availing these services, the consumer is required to subscribe to TATA Play DTH Services, have a set top box installed and thereafter, pay monthly subscription fees for the purpose of viewing the channel. The same astrology content is beamed Sairaj 38 of 45 astro finalised (2).doc to the masses as opposed to the one to one consultation offered by the Plaintiff. Further the Defendant is not shown to render astrology predictions in financial markets, which is the core service rendered by the Plaintiff. I am unable to read the email chain between the parties as an admission that the rival services are identical by mere use of the words "astrology services" and in any event, the similarity in the services is required to be considered by applying the well settled tests.