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3. It is stated in the plaint that the defendant has been printing, publishing and selling calendars under the mark and/or the name interalia containing the word KALNIRNAY prominently displayed thereon and is hence passing off its calendars as and for the plaintiffs' well known said goods bearing the mark "KALNIRNAY" and the same is causing great damage in the business of the plaintiffs and is an infringement of the rights of the plaintiffs under the Trade Marks Act. In about the year 1972, the plaintiff no. 1 commenced its business of printing and publishing almanac, books, periodicals and calendars bearing the composite trade mark interalia containing the word or the expression KALNIRNAY as its leading and essential feature. In or about the year 1982, some of the partners of plaintiff no. 1 firm and their family members promoted a private limited company, namely, Sumangal Press Private Limited i.e. Plaintiff no. 2 interalia for carrying on the same business of printing, publishing and marketing of the said goods and in or about the year 1986, the plaintiff no. 1 granted a common law licence in favour of plaintiff no. 2 to use the trade mark of plaintiff no. 1 KALNIRNAY in relation to the said goods and since then plaintiff no.2 has been printing, publishing and marketing said goods under the said trade mark KALNIRNAY as its leading and essential feature. Since the beginning, the plaintiffs have been continuously and extensively printing, publishing and marketing its said goods and particularly the calendars under the trade mark KALNIRNAY and due to high quality of paper, printed matter and display the plaintiffs said goods are immensely popular amongst all cross sections of people and the said popularity is reflected by the ever increasing sales figures and advertisement revenue earned by the plaintiffs during all these years. It is stated in the plaint that in the beginning the plaintiffs were printing, publishing ad marketing the said goods in Marathi, however, very soon the plaintiffs started printing, publishing and marketing said goods in other languages and today the plaintiff no. 2 publishes said goods almost in all major languages including, Marathi, Hindi, Gujarati, English, Tamil, Telugu, Kannada, Bengali, etc. There is a considerable demand for various editions of plaintiffs' KALNIRNAY from Indian Communities settled abroad and, thus, the plaintiffs have acquired tremendous goodwill and reputation in the trade mark KALNIRNAY not only in India but also internationally. The plaintiffs have spent sizeale amount by way of publicity and promotional expenses to popularise and promote sales of its calendars bearing the trade mark KALNIRNAY and the said trade mark has become distinctive of the plaintiff's goods and exclusively connotes and denotes to the members of trade and public the goods printed, published and sold by the plaintiffs and none else. The word KALNIRNAY forms a memorable part of plaintiffs' trade mark and is prominently appearing on the said goods. The plaintiffs' advertisements also emphasize the said word KALNIRNAY and consequently, the members of the trade and public desirous of buying the plaintiffs' said goods demand it with reference to the word KALNIRNAY and it is this prominent word KALNIRNAY which distinguishes the plaintiffs' goods from those printed and published by others and in the circumstances, the plaintiffs have acquired proprietary right in the word KALNIRNAY and are entitled to its exclusive use in relation to the said goods. On 08.01.1977, plaintiff no. 1 applied for and obtained registration of its composite trade mark interalia containing the word KALNIRNAY in respect of panchangs, books, periodicals and calendars under the Trade and Merchandise Marks Act, 1958 under No. 322232 in Class 16. However, as at the time of considering the application of plaintiff no. 1 for registration of the said trade mark the Registrar had raised the objection to the registrability of the said composite mark under Section 9 of the Act on the ground that the word KALNIRNAY was not considered to be prima-facie distinctive and as the plaintiff no. 1 did not lead evidence of user and acquired distinctiveness of the said trade mark for lack of proper legal advise, the Registrar asked plaintiff no. 1 to disclaim the expression KALNIRNAY while accepting the plaintiff no. 1's trade mark for registration and accordingly plaintiff no. 1 agreed to the condition of disclaimer of the said word. However, the plaintiff no.1 has now made a fresh application for obtaining registration of the said trade mark without disclaimer of the said word, which is pending. It is stated that the disclaimer of the word KALNIRNAY in the registered trade mark No. 322232 of plaintiff no. 1 does not take away common law right of plaintiff no. 1 to exclusive use of the word mark KALNIRNAY.

The case of the plaintiff is that the plaintiff has been publishing almanac, books, periodicals and calendars bearing the trade mark "KALNIRNAY" since the year 1972 and on 08.01.1977, plaintiff no. 1 applied for and obtained registration of its composite trade mark interalia containing the word "KALNIRNAY" under no. 322232 in class 16. However, at the time of registration of the said mark, the Registrar raised the objection to the registrability of the said composite mark under Section 9 of Trade and Merchandise Marks Act, 1958 on the ground that the word "KALNIRNAY" was not considered to be prima facie distinctive and as the plaintiff no. 1 did not lead evidence of user and having acquired distinctiveness of the said trade mark for lack of proper legal advice, the Registrar asked plaintiff no. 1 to disclaim the expression "KALNIRNAY" while accepting the plaintiff no.1's said trade mark for registration and accordingly plaintiff no. 1 agreed to the condition of disclaimer of the said word. The case of the plaintiff is that in December, 2000, the plaintiff came to know that defendant is printing, publishing and marketing Hindi calendars under the name and style of "Kal Jyotish Nirnaya" interalia containing the word mark "KALNIRNAY" and, thereby confusing the consumers into buying inferior quality of the defendant's calendars as and for those of the plaintiffs.

17. The plaintiff examined Shri Jayraj Jayant Salgaokar as PW-1 who adduced evidence by way of affidavit Ex.PW1/A. PW-1 admitted in his cross-examination that the word Kal Nirnay is not an invented word and has not been conceived by them. Thereafter, PW-1 voluntarily stated in the cross-examination that the said word has been used in our Dharmshashtras. In para 11 of the plaint, the plaintiff has stated that on 08.01.1977, plaintiff no. 1 filed and obtained registration of composite trade mark interalia containing the word "KALNIRNAY". However, PW-1 stated in the cross- examination that copy of certificate of registration has not been exhibited. The contention of ld. Counsel for the defendants is that the registration which was obtained by the plaintiff under no. 322232 in class 16 is a composite registration consisting of wheel with spikes and the word "KALNIRNAY" and there is a disclaimer that the plaintiff shall not be entitled to exclusive use of the word "KALNIRNAY". It is to be noted that in para 11 of the plaint, the plaintiff has himself stated that while accepting plaintiff no.1's application for registration of trade mark, condition of disclaimer to use the word "KALNIRNAY" has been imposed. In the circumstances, in view of aforesaid discussions and on account of disclaimer, it is not open for the plaintiff to plead that the plaintiff only is entitled to use of the mark "KALNIRNAY" and the defendant is not entitled to use the word "KALNIRNAY" in any combination.