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Material on record shows that the defendant had set up his business as back as in the year 1999. Significantly, the defendant has drawn adopted, and applied for his brand/mark ‶ MOHAN'S ″from his name i.e. MAN MOHAN SHARMA. Thus, the expression ‶ MOHAN'S ″is an integral and prominent part of the name of the defendant. Further, defendant is operating his business from Delhi, whereas the plaintiff is based in Amritsar. Nothing is brought on record to indicate that as a result of consistent, vigorous and extensive commercial usage of the trade mark ‶ MOHAN'S ″, plaintiff had acquired such an enviable goodwill and For Subsequent orders see CM-16925-CII-2016 52 of 64 prominence across the States, that adoption of the mark ‶ MOHAN'S ″by the defendant was purely to encash upon plaintiff's reputation and divert his business. The argument advanced by learned counsel for the plaintiff that the defendant is not a bona fide user of a trade mark ‶ MOHAN'S ″, for he did not carry out any inspection or search of the trade mark register to ascertain whether the said mark was/is indeed the property of another, and the reliance placed in this regard upon the decisions of the Bombay High Court in Aristo Pharmaceuticals Pvt. Ltd. (supra) and M/s Himalaya Drug Co. v. Gufic Ltd., and another, 2004 AIR (Bombay) 278, also lacks conviction. For, Section 35 rather prohibits the registered proprietor of a trade mark to cause any interference with the use by a person of his own name provided its adoption and usage is bona fide. The decision in Aristo Pharmaceuticals Pvt. Ltd. (supra) does not advance the case of the plaintiff, for the court while determining the plea of delay and acquiescence set up by the defendant, observed that although defendant claimed to have been marketing its products since 2009, but nothing was produced in evidence to show that the defendant ever advertised his products under the said trade mark. Even otherwise, the case of the plaintiff was that the sale figures of respondent No.2 was so minuscule, which could have hardly been noticed by the plaintiff. In the given situation, it was observed that where a party uses a registered trade mark without even bothering to take search in the register, such use is at the defendant's own risk, and it is not open to the defendant to raise a question of delay. Such is not the case in the matter in hand. Likewise, in M/s Himalaya Drug Co. (supra) adoption and/or usage of the trade mark "Shallaki", by the defendant, was not found to be bona fide on merits. In fact, paragraph 8 of the said decision reveals that although a For Subsequent orders see CM-16925-CII-2016 53 of 64 defence, in terms of Section 35 of the Act, was set up by the defendant, but the said plea was not pressed. It was in these circumstances, the court had observed that least the defendant could have done was to verify the trade mark register before choosing the name "Shallaki", for "Shallaki" had been registered in the name of the plaintiff for over twenty years.

(ii) which is not separately registered by the proprietor as a trade mark; or

(b) contains any matter which is common to the trade or is otherwise of a non-distinctive character, the registration thereof shall not confer any exclusive right in the matter forming only a part of the whole of the trade mark so registered."

35. Explicitly, section 15 postulates that if a proprietor of a trade mark claims a right of exclusive usage of any part thereof separately, he For Subsequent orders see CM-16925-CII-2016 56 of 64 shall apply to register not only the whole, but even the part as separate trade mark. So much so, each of such separate trade mark shall have to satisfy all the conditions applying, and have all the incidents of an independent trade mark. And, in terms of Section 17, if a trade mark consists of several matters its registration shall vest in its proprietor a right of exclusive usage of the trade mark as a whole. But, in case the trade mark contains only a part of the registered trade mark, which is not the subject matter of separate application by the proprietor or is not separately registered, as envisaged under Section 15 of the Act, no exclusivity in terms of its usage can be claimed. Notwithstanding, the registration of the trade mark as a whole.

Faced with this, learned counsel for the plaintiff refers to the provisions of Section 55 of the Act, which postulates, that if an actual usage of a trade mark is required to be proved under the Act, the tribunal may, if and, so far as it shall think right, accept use of a registered associated trade mark, or of the trade mark with additions or alterations but not substantially affecting its identity, as an equivalent for the use required to be proved. It appears that what is sought to be urged is that even if there was no actual usage of the registered trade mark " MOHUN's ", user of a mark ‶ MOHUN'S ″, which is substantially the same, be taken as an equivalent user. But, that too would not advance the case of the plaintiff. Concededly, the registration of the associated trade mark No.396139, dated 07.10.1982, lapsed on account of non-payment of the renewal fee, and, prima facie, plaintiff has even failed to show the actual usage of the altered mark i.e. ‶ MOHUN'S ″.

(4) Prima facie, there has been no actual usage of the alleged registered trade mark ‶ MOHUN'S ″as also the mark " MOHUN's ", which despite registration remained dormant and in disuse;

(5) On the contrary, the defendant is concededly manufacturing and selling his merchandise under his trade mark ‶ MOHAN'S ″, concededly since August, 2013;

(6) The defendant has drawn, adopted, and applied for his brand/mark ‶ MOHAN'S ″from his name i.e. MAN MOHAN SHARMA. The expression ‶ MOHAN'S ″is an integral and prominent part of the name of the defendant. Thus, prima facie, conception, adoption, and usage of the trade mark ‶ MOHAN'S ″by the defendant appears to be innocuous, honest and bona fide. So, even if, the registration of a trade mark of the plaintiff is assumed to be valid, no interference could be caused in the usage of the defendant of his own name;