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42. Competing marks in relation to goods have to be considered not in relation to identity of the goods but also in relation to cognate and allied goods besides considering the trade channel.

43. Witness of the defendant, in cross examination, admitted that mathematical instrument boxes, i.e., geometry box is purchased by children. It is sold in stationery shops. Witness admitted that product of plaintiff is also sold at stationery shops. Witness admitted that product of the plaintiff is very popular. To quote from his cross examination, witness stated:

It is correct that Nataraj pencil of the plaintiff is very popular. It is correct that the plaintiff's pencil is demanded and sold by the name of Nataraj I sell my geometry box to stationery shops. It is correct that these shops sell pencils also.

44. On the phonetic similarity, DW-1 stated:

It is correct that the words Nataraj and Natoraj are phonetically similar.

45. Before dealing with the case law, it would be important to note that the sale figures of the defendant, as per evidence of the defendant, show a very poor sale of goods manufactured by the defendant.

50. Witness of the defendant was cross examined in respect of its account books and other records. Witness did not produced the same. Adverse inference would therefore have to be drawn against the defendant that if break-up of sale figures was available in respect of different products manufactured by the defendant, sales pertaining to geometry boxes using the trade mark Natoraj would be virtually negligible.

51. Ex.P/W-1 is the sample of the mathematical instrument box used by the defendant. It shows a deceptive similarity with the cartons used by the defendant in which pencils are sold by the defendant. The word 'Nataraj' and 'Natoraj' are phonetically similar. Children are the consumers. Trade channel is stationery shops.

55. Notwithstanding that the plaintiff does not have registration for its trade mark 'Nataraj' in respect of geometry boxes, (mathematical instrument boxes), in view of the law laid down in various decisions and as noted above, plaintiff would be entitled to an injunction against the defendant. The cloud on the right of the plaintiff in its litigation with M/s. Universal Trading Company eclipses plaintiff's right only qua said party. The said order does not give a license to third parties to infringe the right of the plaintiff. This aspect has been clarified by the Division Bench of this Court, relevant observations are as noted in para 41 above.