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83. It is an admitted position that the Plaintiff acquired rights under the 2005 Assignment Deed and BMSS had divested itself of all its rights under the said Deed. BMSS had also agreed not to use the Marks assigned to the Plaintiff or to use Marks that are deceptively similar to the Marks assigned to the Plaintiff. The plea that BMSS was also using a similar mark to that of the mark that was assigned would only go on to show that BMSS was using the mark in breach of the 2005 Assignment Deed. It had agreed not to use any deceptively similar mark to the mark assigned to the Plaintiff. BMSS, itself being the Assignor of the m arks cannot set up a defence of an honest concurrent user. On the other hand, it would go on to show that the adoption of the marks that were deceptively similar to the marks assigned was dishonest. The fact that the mark was adopted dishonestly and put to use would not entitle the Defendant or its predecessor to claim the defence of honest concurrent user.

84. Since BMSS was itself the assignor of the marks, it cannot claim that it adopted the deceptively similar marks without the knowledge of the existence of the marks of the plaintiff. The Plea that the Plain tiff by its silence and inaction permitted the marks of BMSS to grow cannot come to the aid of BMSS as the adoption was not without the knowledge of the marks of the Plaintiff. BMSS adopted deceptively similar marks with full knowledge and at its own risk. Since the adoption of the deceptively similar marks by BMSS was with the knowledge of the marks of the Plaintiff, the defendant being an assignee of the deceptively similar marks from BMSS cannot thus claim to be in a better position that its assignor.

108. The fact that the Defendant is claiming to be a successor from BMSS and is not claiming any independent right to the said Mark, prima facie establishes that the Defendant cannot also use a deceptively similar mark.

109. Since the Plaintiff admittedly is the prior user of the trademark BRIHAN‟S DOCTOR BRANDY, the Defendant is liable to be restrained from using the deceptively similar mark BRIHMA‟S ORIGINAL DOCTOR BRANDY.

115. Where a trader adopts a deceptively similar mark being fully aware of the mark of another trader, then he does so at his own risk. He cannot be permitted to set up the defence of honest concurrent user who has adopted the deceptively similar mark being unaware of the earlier mark.

116. Further, the Bombay High Court in the case of SKOL B REWERIES (SUPRA ) laid down that so long as the registered mark is used in substantially the same manner in which it is registered it must be deemed/considered to constitute the use of the registered mark itself. Where the use of a mark, registered or unregistered, is appa rent the mere addition of material on the label or other material on which it appears would not lead to the conclusion that the mark has not thereby been used. In either case, the use of the mark must be apparent to wit, the Court must be satisfied that despite the added material the trademark has been used. The use of the mark must be as a trademark and must be obvious/perceptible. The mark must not be lost as a result of the added material for then it is not to the use of the mark for the purpose of an infringement or a passing of action.