Defendant.26 The advertisement in the Trade Marks Journal in respect of this mark claimed by the Defendants is included in the Plaintiff’s compilation.27 Now this mark is not the mark complained of at all. It is a device of a sun or a stylised sun with the letter “Om” in it. The advertisement in the Trade Marks Journal is of 19th December 1989. It is issued by one Sanket Tobacco Products Pvt. Ltd. at Jalna, and it says that this mark is in respect of zarda, a chewing tobacco, not in respect of unmanufactured tobacco; and, more importantly, that the mark is proposed to be used . It is difficult, therefore, to see how this defence of prior registration can be said to have been validly invoked. The marks complained, viz., those at Exhibits D1 and D2 to the Plaint, have nothing whatever to do with the mark registered to Defendant. The product marks are different. The goods are different. The advertisement of the mark registered by the Defendant does not establish prior user either. The only possible connection is that the sun device appears in an inconspicuous and insignificant portion of the impugned labels. But the Plaintiff’s grievance is not about the sun device at all. What do the Defendants have to say of the rest of the labels and how it is that they come to be so strikingly similar to those of the Plaintiff? To this, there is absolutely no answer in the Affidavits in Reply. Assuming, therefore, that there was any use by the Defendants of their registered mark, one that was ultimately registered under No.521508, this can never constitute use of the impugned labels or marks. I do not see how it is possible for the Defendants to journey from this distinct registration of a different mark, using a device that forms part of it, to a claim of registration of the entirety of the
