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The purported explanation given by the respondents is, thus, wholly unbelievable and falsified by documents disclosed by them. It is well-settled that in the absence of any credible explanation with regard to adoption, courts would readily infer dishonest adoption and pass an order of injunction against such user.

It is further argued that the respondents have deliberately suppressed that the respondent No.1 and the UD Group of Companies of which it has been selling cement under the trademark "Best" for many years. The attention of the Court was drawn at Page 25 of the Affidavit-in-reply and the Web address appearing therein. It is argued that not only has such fact been suppressed, no explanation has also been offered for change of trademark and the purported adoption of the petitioner's said trademark, device and colour scheme. In view of the aforesaid, the respondent's plea of bona fide adoption is required to be rejected. It is submitted that the documents disclosed in the Affidavit-in-reply would show the user of the said trademark "Best" by the respondents and its Group Companies. It would be evident from the visiting card of the deponent of the respondent affidavit, namely, Mr. Swapan Deb, that he was fully aware of the aforesaid fact. The respondents are using the mark "Best" and "Rhino" simultaneously which would appear from the documents disclosed at Page 31 of the Affidavit-in-reply. The respondent was previously dealing with cement under the mark "Best", the respondent No.1 has dishonestly adopted the mark "Rhino". The user of the same trademark, logo device and labels which are deceptively similar has led to actual confusion. The petitioner has disclosed documents evidencing actual and possible confusion and deception including the following:-

Let me now examine the comparative merits in the argument put forth by the parties.

Section 2(m) of the Act gives an inclusive definition of 'mark'. 'Mark' includes amongst others 'word'. Section 2(h) defines "deceptively similar". It states that a mark shall be deemed to be deceptively similar to another mark if it so nearly resembles that the other mark as to be likely to deceive or cause confusion. Under Section 29 a registered trade mark is infringed, if -

(a) the mark is identical and is used in respect of similar goods or services; or

Section 2(1)(h) defines "deceptively similar" as - "A mark shall be deemed to be deceptively similar to another mark if it so nearly resembles that other mark as to be likely to deceive or cause confusion".

Where the alleged infringement consists of using, not the exact thing on the Register, but something similar to it, the Court must, in considering whether there has been an infringement or nor, proceed upon the old principle, which prevailed both at law and equity before the Act, that a man is not to pass off his goods as the goods of another.

In this regard it is pertinent to mention the observation of the Court in the case of Jolen Inc. v. Doctor & Company reported at 98 (2002) DLT 76 which says:-

" when a party after copying a trade mark comes out with an explanation as to its invention which is unbelievable or may be plausible, its attempt to synchronize combination of words is a mere after-thought and an act of searching excuses and explanation. It is natural for the parties who have copied trade mark to try and explain its conduct and to look out for means to explain derivation of words so adopted. If trade mark having element of prior continuance and use has been copied, no amount of explanation even if it is plausible is capable of defending infringement of copyright of such prior user. The Court further held that there is an uncanny degree of similarity between the plaintiff and defendant's trade mark, colour scheme, get up, lay out of the container and the carton etc. which could only mean that one of the parties has copied from the other and it has never been the case of the defendant that the plaintiff has copied from them. The defendants have quagmire themselves to invent explanation. The Court further held that the explanation of the defendant in choosing the impugned trade name is highly implausible, farfetched and wholly unconvincing, and the dishonesty in choosing the name and the ill design to trade and cash upon the reputation and goodwill of the plaintiff is pronounced ad prominent. The Court held that passing off involves elements of misrepresentation and deceit. The object of adopting the trade name or deceptively similar name of another person is to trade upon and derive the financial benefit from the reputation and goodwill of that person. As a consequence the business or the goodwill of the other person suffers damage in financial as well as in terms of reputation. That is why the remedy against passing off action is independent of the infringement action arising from the violation of the statutory right to a trade mark."