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6. The defendant had, on 10th June, 2006, applied for registration of a label mark (Exhibit-F to the plaint) in respect of the same products viz. incense sticks, agarbattis and perfumery included in class 3. In the application, the defendant claimed user since 1st January, 1985.

7. On 25th September, 2006, plaintiff No.1 made an application before the Registrar of Trademarks to bring itself on record as a subsequent proprietor in respect of the marks "MADHUR GULAB"

NMW3940.09

29. Dr. Tulzapurkar then relied upon various averments in the affidavit in reply which refer to "MANGALDEEP" as the umbrella brand and the use of the trademark "MANGALDEEP" in conjunction with other words such as "MANGALDEEP Madhur", "MANGALDEEP Mogra", "MANGALDEEP Jasmine" and "MANGALDEEP Madhur 100" as sub-brands. Dr. Tulzapurkar relied upon these references in the affidavit in reply. In paragraph 7, it is stated that the defendant's label trademark application "MANGALDEEP Madhur" was advertised in the TM Journal. In paragraph 10-h, it is stated that the defendant launched it's brand of agarbattis "primarily under its umbrella brand "MANGALDEEP" and this umbrella brand was further associated with a wide range of descriptive sub-brands like ....... Madhur etc." In paragraph 10-q, the defendant has furnished the total sales figures for the "brand MANGALDEEP Madhur". Paragraph 10 states that the defendant's agarbattis under the "brand MANGALDEEP Madhur" are patronized by a wide cross-section of population and the brand "MANGALDEEP" and all the descriptive sub-brands enjoy considerable goodwill and reputation.

34. This, in fact, is how the defendant's Chartered Accountants also perceived the matter. The defendant's Chartered Accountants have certified the "sales for MANGALDEEP MADHUR agarbatti" and not "MANGALDEEP" agarbatti with a sweet aroma. I appreciate that the Chartered Accountant did nothing more than use the terminology referred to him by the defendant viz. "sales for MANGALDEEP MADHUR agarbatti". The defendant furnished the details of the "sales for MANGALDEEP MADHUR agarbatti". The Chartered Accountants certified these details to be correct on the basis of their examination of the statements furnished "with the books of accounts, NMW3940.09 segment reports and other relevant records". The Chartered Accountant's certificate, therefore, confirms that the defendant's books of account and other records have dealt with the defendant's sales in respect of its products sold under the mark "MANGALDEEP MADHUR 100" separately. The certificate does not indicate that this bifurcation was only on the basis of the aroma. There is nothing on record to indicate that the defendant maintains separately, accounts on the basis of every conceivable variant of a product.

Exhibit-9 is a label mark. Against a white background is the word "MADHUR" written all over in capital letters. On this background is a rectangle with a red background against which in NMW3940.09 white lettering are the following words "Garden Fresh", "Madhur"

and "Agarbathi". To the left of the rectangular box is the sketch of a rose and to the right is a device of four lit agarbattis on a agarbatti stand. There is absolutely no doubt that the word "MADHUR" is used as a trademark and not as a descriptive mark. The descriptive words are Garden Fresh and Agarbatti. Thus, even assuming that the word "MADHUR" can be used as a descriptive word in the very case referred to by the defendant, it has been used as a trademark.