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39. The respondent company has argued before this court that the descriptive nature of the mark has to be determined with respect to the appellant's goods. This approach according to the appellant is completely erroneous. While determining the nature of the mark - for the purpose of registration or for the purpose of passing-off/infringement, the first inquiry which the court ought to carry out is to determine whether the applicant's/plaintiff's mark is invented, arbitrary/suggestive, descriptive or generic. The nature of the mark is always determined with respect to the plaintiff's/applicant's goods. For example, if a person applies for a trademark called "Extra Strong", the Registrar of trade mark has to examine whether the mark is descriptive or laudatory for the goods for which it is applied, i.e., the applicant's goods. The inquiry does not depend on the person  opposing the use of the said mark. Thus, to hold that the nature of the mark has to be determined by the nature of the appellant's goods is stating the proposition in the reverse.

Objection in accordance with Section 45 of the Copyright Act and Rule 24(3) of the Trade Mark Rules, 1959.

50. The mark `Eenadu' meaning DAILY or TODAY, the appellant genuinely adopted the same to signify Daily use of Agarbathi, which is in fact used on a daily basis by persons  performing puja. Thus, the appellant does have a valid and acceptable explanation for the adoption. It is submitted that for the appellant's goods, it is an arbitrary mark.