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1. This order will govern the disposal of IA 1138/2004, an application moved on behalf of the plaintiff under Section 135(2) of the Trade Marks Act, 1999 (in short ''The Act'') and Order 39 Rule 1 and 2 read with Section 151 CPC seeking an ad interim injunction against the defendant in a suit filed by the plaintiff under Section 27(2) of the Act read with Section 134(1) and 135 of the Act and Sections 51 and 55 of the Copyright Act, 1957 for permanent injunction restraining infringement of copyright, passing ff and rendition of accounts. The suit has been filed with the averments and allegations that it is a partnership firm; the forefathers of the plaintiff's were in the business of manufacturing and marketing ethnic foods including sweets and nankeens for the last about 100 years and have inherited a vast treasure of recipes of traditional Indian sweets and nankeens developed and perfected down the generations. In the year 1981 the plaintiff established a major outlet in the capital at Karol Bagh, under a coined trade name / trade mark 'BIKANERVALA' which, as a whole, is inherently distinctive and was not being used by any competitor of the plaintiff firm before it was coined. The Hinglish expression 'BIKANERVALA' of the plaintiff due to its unique combination of English and Vernacular language and because of the goodwill and reputation generated by the plaintiff by its untiring efforts for more than two decades has been a runaway success amongst the trade and public and has succeeded in achieving an extremely high recall value in the minds of the intending purchasers and the consuming public at large and since then the plaintiff has grown by leaps and bounds and at present is one of the major traders in traditional sweets and namkeens in India along with its associate firms / companies and a number of retail outlets spread far and wide so much so that the said trade mark/trade name 'BIKANERVALA' has assumed a secondary significance and qualifies to be a well known and famous trade mark. It is further alleged that due to the extensive and wide user of the said coined trade mark / trade name 'BIKANERVALA', the same has become a household name which is recognized and hailed by one and all as a source of superior and impeccable quality of the sweets, namkeens and other cognate products originating from the plaintiff firm exclusively.

4. Along with the suit, the plaintiff filed an application for grant of ad interim injunction to the same effect as in the suit during the dependency of the suit.

5.The defendant being noticed, has contested the suit and the application for grant of ad interim injunction and has filed its written statement and reply raising preliminary objections about the maintainability of the present suit on the ground that the plaintiff has falsely claimed the expression 'BIKANERVALA' to be a trade mark in respect of food articles for human consumption; the expression 'BIKANER' is a well known geographical city of Rajasthan, which is known and recognized for a particular type kind of food articles for human consumption and, therefore, in reference to the city of Bikaner in respect of food articles for human consumption is indicative and serve in trade to designate geographical origin, character, quality, variety, type and kin of the product, originating there from or having connection thereof. It is also stated that the expression 'BIKANER', whether used independently or in conjunction with any prefix or suffix and particularly the suffix 'VALA' does not make any difference o the generic character of the name of city of BIKANER in respect of such goods. The expression 'BIKANERVALA' conveys definite and specific meaning in ordinary language so as to indicate the origin of the person of the product from Bikaner and the expression BIKANER and/or BIKANERVALA are thus generic, laudatory and descriptive which are used openly and extensively not only in the city of Bikaner but also in various other parts of the country with reference to the food articles for human consumption. I is also pleaded that these names have become customary in the current language in relation to the business of articles of human consumption. The plaintiff, therefore, cannot claim monopoly of such expression to the exclusion of the entire trade and the same cannot be claimed to be a trademark or capable of being used as a trade mark. The defendant has also stated that the expression(s) BIKANER or any other expression derived there from, including 'BIKANERVALA' when used in respect of food articles for h man consumption does not indicate that the said goods are originating from a particular manufacturer but the same indicates that the said goods or the manufacturers are either originating from the city of BIKANER or are of BIKANERI style/taste or are con ejected with the city of BIKANER in one or the other manner. Yet another objection of the defendant is that the expression 'BIKANERVALA' cannot be said to be innovative or original or coined expression developed by the plaintiff in respect of food article for human consumption and, therefore, the suit of the plaintiff for the relief of passing off is not maintainable. It is also stated that the suit of the plaintiff for the relief of infringement of copyright is also not maintainable on the ground that he plaintiff has made vague claims in the plaint and has failed to show the subsistence of any valid copyright or ownership therein in its favor and further that the plaintiff does not have any copyright in the packaging material or script of alphabets and is not entitled to claim any relief in respect thereof. It is also stated that the suit has not been signed, verified and instituted by a duly authorised person on behalf of the plaintiff. The allegations in regard to the plaintiff being in the business of sweets since the time of his forefathers and having acquired a tremendous reputation and goodwill and had a turnover of more than Rs. 300 crores till date or that the combined turnover for the year 2002-03 was more than Rs. 100 crores are denied. Each and every allegation made in the plaint in regard to the defendant having adopted a deceptively similar mark with a view to cause confusion in the mind of the trade and general public as also the defendant having tried attempted to encash upon the tremendous goodwill of the plaintiff are denied. It is denied that the plaintiff is entitled to any of the relief claimed by it or a temporary or an ad interim injunction.

29. Bearing in mind the legal proposition emerging from the above referred authorities, I may now proceed to examine the ultimate question as to whether the mark of the plaintiff 'BIKANERVALA' is entitled to protection because of its exclusive adoption an d long user by the plaintiff and whether the plaintiff is entitled to an interim injunction. In the opinion of this Court once the plaintiff has been able to show prima facie that the plaintiff has coined and adopted his trademark 'BIKANERVALA' since 19 1 i.e. for more than 20 years and has been manufacturing and selling its edible goods for human consumption and its turnover being quite large during past few years, he has made out a prima facie case in its favor. The defendant has started using an ide tical trademark/tradename since 2004 only with a prefix 'NEW' which is visually, structurally and phonetically similar to the mark/tradename of the plaintiff. It has also been established that the trademarks/tradenames like 'Kabuliwala', 'Rohtakwala' et . despite being referrable to geographical terms are good trademarks and have, in fact, been registered with the Registrar of Trademarks. On that analogy and otherwise also, therefore, it can be safely held that the plaintiff's trademark/tradename 'BIKA ERVALA' is a good mark and entitled to protection. The defendant could not render any possible explanation as to why it has adopted and started using the word 'NEW BIKANERVALA' and in the absence of any plausible explanation forthcoming, it may be presu ed that the defendant has done so with a mala fide and deceitful intention and with a view to tred upon the goodwill and reputation of the plaintiff relatable to the said trademark and with the sole intention of passing off its own goods as that of the p aintiff's goods. The balance of convenience also lies in favor of the plaintiff rather than in favor of the defendant and in case interim injunction is not granted in favor of the plaintiff, the defendant may continue to pass on its goods as the good of the plaintiff which is bound to occasion into irreparable loss and injury to the plaintiff.

30. The net result of the above discussion is that plaintiff's application deserves to be allowed and the defendant is required to be restrained by means of an ad interim injunction and the plaintiff is entitled to interim injunction till the disposal of the suit. Accordingly, the application of the plaintiff is allowed and till the disposal of the suit the defendant, its servants, stockists, distributors, agents and retailers are hereby restrained from manufacturing, selling, offering for sale, adverti ing, directly or indirectly dealing in food articles for human consumption under the impugned trademark and infringing artistic work 'NEW BIKANERVALA' as appearing in annexure-B to the plaint or under any other deceitful similar trademark or artistic wo k as that of the plaintiff's mark 'BIKANERVALA'. Needless to say that observation made herein above are only for the purpose of disposal of the application and may not be taken an expression of opinion on the merits of the suit. Application stands disposed of.