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15. He submits that the Defendant has not tendered any explanation for adoption of the identical mark "TRACKON" which is an arbitrary mark. He submits that there was no search conducted by the Defendant in the trade mark registry before adopting the mark, which is at the Defendant's own peril. He submits that there is no question of estoppel or suppression as the conflicting mark cited at the time of Plaintiff's registration was "TRICON" whereas in the present case the marks are identical.

30. The trademark "TRACKON" coined by the Plaintiff is an arbitrary mark which is an inherently distinctive mark and by reason of the continuous and uninterrupted use since the year 2018 is prima facie associated with the Plaintiff's products. Prima facie, the goods of the Plaintiff and the Defendant being commercially connected are similar in nature and there is identity of trade making out a case of infringement is under Section 29 (2) of the T.M. Act. The aspect of Shubham 17 of 34 final IA-2515-2025.doc difference in trade-dress pricing are irrelevant considerations in infringement action.

38. The contention of honest and concurrent use does not assist the case of the Defendant as Section 12 of the T. M. Act, 1999 dealing with honest and concurrent use permits registration of the mark by more than one proprietor. Section 12 of T.M. Act, 1999 cannot constitute a defence in an action for infringement. In any event there is no concurrent use as the Plaintiff had adopted the trade mark in the year 2018 whereas the Defendant had adopted mark in the year 2020. Pertinently the Defendant was aware of the existence of the Plaintiff and in the earlier round of litigation had submitted to decree on admission which imposed an added responsibility on the Defendant to ensure that the mark adopted by the Defendant does not in any manner infringe on the Plaintiff's registered mark. It is not shown that such caution was exercised by the Defendant before adopting the mark in the year 2020. There is no explanation tendered in the affidavit-in- reply for adoption of an identical arbitrary mark which is unconnected Shubham 23 of 34 final IA-2515-2025.doc with the product of the Defendant. In such circumstances it cannot be said that the adoption of the mark is bonafide or honest. The reliance on Section 12 of T.M. Act, 1999, if permitted, would strengthen the Plaintiff's case as registration of identical/similar mark is permitted in such case in respect of same or similar goods or services and would thus constitute an admission that the Plaintiff's and Defendant's goods are similar. In my view, the Plaintiff has prima facie made out case of infringement of its registered trade mark and where there is infringement of registered mark, injunction must follow. (See Ruston & Hornsby Ltd vs Zamindra Engineering Company) (supra).