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5. After considering rival contentions, the learned Single Judge dismissed the application filed by the appellants herein. The contention that registration of the trade mark had been improperly or fraudulently procured by the respondent was rejected. The learned Single Judge also did not find any merit in the contention of the appellants that the mark in question was not 'distinctive' to entitle the respondent to registration inasmuch as the claim of the respondent in its application for registration that the user of the said mark by it since 1st January, 1974 could not be doubted. The learned Single Judge also concluded that the goods of the appellants in respect of which appellants obtained registration of trade mark were different from the goods in respect of which respondent's trade mark was registered and it could not be said that use of the trade mark by the respondent was likely to deceive or cause confusion. The Court also accepted the submission of the respondent that there were special circumstances in favour of the respondent and further that as the respondent was a bonafide concurrent user of trade mark in question for long years, it was entitled to the benefit of Section 12(3) of the Act . We may point out at this stage that while coming to the aforesaid conclusions, the learned Single Judge referred to number of judgments on various aspects and in conclusion dismissed the application of the appellants.

i) Corn Products Refining Co. Vs. Shangrila Food Products Ltd. note "C" for section 18.
ii) T.G.Balaji Chettiar Vs. Hindustan Lever Ltd. .
iii) Century Traders Vs. Roshan Lal Duggar & Co. & Ors. .

It was also argued that the trade mark of the respondent was also not distinctive with the goods of the respondent and is prohibited under Section 9 of the Act.

9. It was also submitted that the respondent was not entitled for the registration in Section 12(3) by claiming honest concurrent user and/or other special circumstances. Hence, the trade mark in question was liable to be rectified on the above said points. The benefit of Section 12(3) of concurrent user can only be given if the trade mark in question is being used by the party other than the proprietor of the trade mark as the honest concurrent user. In this case there is no honesty on the part of the respondent. Their copyrights have already been removed from the Register of Trade Mark. The respondent is also copying the exact device of NATRAJ, the colour scheme, get up and layout which they have copied from the products of the appellants. The trade mark is also identical after having full knowledge about the trade mark and copyright of the appellants the respondents have applied for the registration of the identical trade mark. The goods in question are sold in the same market and by the same shopkeeper. Therefore, there is no honesty on the part of the respondent to claim the concurrent user of the mark. In support reliance was placed on:

"44. It is a settled principle of law relating to trade mark that there can be only one mark, one source and one proprietor. It cannot have two origins. Where, therefore, the first defendant-respondent has proclaimed himself as a rival of the plaintiffs his claim as joint owner is impermissible in law. Even then, the joint proprietors must use the trade mark jointly for the benefit of all. It cannot be used in rivalry and in competition with each other.
45. The plea of quasi-partnership was never urged in the pleading. As regards copyright there is no plea of assignment. The High Court had failed to note that the plea of honest and concurrent user as stated in section 12(3) of 1958 Act for securing the concurrent registration is not a valid defense for the infringement of copyright. For all these reasons we are unable to support the judgments of the High Court under appeal. We reiterate that on the material on record as is available at present the denial of injunction, once the infringement of trade mark, copyright and design is established, cannot be supported. Pending suit, there will be an injunction in favour of the appellants (the plaintiffs). All the civil appeals will stand allowed. No cost."

13. As far as bonafide concurrent user of the trade mark in question is concerned, it has come on record that the respondent had been using the trade mark in question since 1st January, 1974. When the application for registration was made in the year 1977, the respondent had been using the trade mark in question for three years and four months. Normally continuous user of the goods over a period of about three years can be the basis on which one can claim that the mark was 'distinctive' to entitle the user to have the registration. The appellants had argued before the learned Single Judge as well as before us that the respondent's claim that it was using the said trade mark since 1st January, 1974 was not a true claim and various reasons were sought to be given in support of this argument. However, after dealing with all these arguments in detail, the learned Single Judge did not accept this contention and rightly so. The respondent had filed before the Registrar of Trade Mark as well as before the learned Single Judge, sufficient material to show user and this material was referred to by the learned counsel for the respondent at the time of arguments. We are in respectful agreement with the reasoning and conclusions arrived at by the learned Single Judge. It may also be relevant to point out at this stage that the word 'Natraj' with the device of Natraj in respect of stationary goods is not used by appellants or respondent alone. There are various other registered users. Two of them namely M/s Jai Dayal Kapoor Distributing Company and Brij lal & Ors. are in fact using the same trade mark and device even prior to the appellants. Therefore, it can be concluded that respondent in a bonafide manner started using the trade mark in question in respect of mathematical instruments in the year 1974 bonafide believing it was in respect of different goods than the goods for which registration had been obtained by the appellants. All the ingredients of bonafide concurrent user, therefore, stand established.