1. The plaintiff has filed a suit for perpetual injunction infringement of trade mark, passing off and rendition of account Along with the suit an application was filed (IA No. 2/93) under Order 39, Rules 1 and 2 read with Section 151, CPc, for restraining the defendants from manufacturing, selling offering for sale, dealing in plastic goods under the trade marks 'PEACOCK' along its device, further prayer was sought by the plaintiff to restrain the defendants from using the marks PEACOCK in respect of their corporate name or nay other trade marks or the word which is deceptively similar to the plaintiff's trade mark 'MAYUR'. The case of the plaintiff is that plaint it has been carrying on the business of manufacturing and selling wide range of plastic goods since the year 1968 and it is registered proprietor of the following trade marks:--
(a) Trade mark MAYUR registered under No. 36981 in class 21 in respect of buckets, wash basins and water jugs, small household containers, brushes, hair combs, mugs, picnic boxes and trays (not of precious metal or coated therein) lunch boxes, table plates, pots and dust bins all being the goods made of plastic and included in class 21 claiming user since July, 1977.
(b) Trade mark MAYUR registered under No. 403633 in class 21 of 31-3-1983 in respect of flasks.
2. According to the plaintiff, it has sold goods worth crores of rupees and the present sale for the year is Rs. 60 lakhs. Plaintiff, according to the averments made in the plaint, has been spending a huge amount on its advertisement by various modern media i.e. wall paintings, magazines, video advertisement, hoardings etc. According to the plaintiff, on account of superiority of the plaintiff's goods, said goods have become popular with the trade and public and are demanded and asked tor as MAYUR as well as MAYURI, MAUR and PEACOCK' being translation of trade mark MAYUR.
3. According to the plaintiff, it has been using the said trade mark in a special script since its adoption of word MAYUR. The case of the plaintiff is that intending purchaser or the aforesaid goods, which include illiterate house-hold wives, women, villages and servants who recognise the plaintiff's goods by the trade mark MAYUR or its equivalent words in English and Punjabi by calling it MAYURI, MAUR and PEACOCK. Apart from these submissions, learned counsel for the plaintiff, Mr. Aggarwal, has also argued that by virtue of the registration which is still subsisting in the Register of Trade Marks, the aforesaid trade mark has become old trade mark and conclusively valid under the provisions of Section 32 of the Trade and Merchandise Marks Act, 1958. The learned counsel for the plaintiff has submitted that under Section 28 of the Trade and Mcchandise Marks Act, the plaintiff has got the statutory and exclusive rights conferred by the said registrations to use the said trade mark. The averment of the plaintiff is that in the third weeks of Nov. 1992 when it came to the notice of the plaintiff that the defendants had incorporated the defendant-company under the name of M/s. Peacock Industries Ltd. and were manufacturing and selling the said plastic goods under the trade mark PEACOCK, the plaintiff filed the present suit.
Mr. Aggarwal further submitted that plaintiff's goods and that of the defendants are sold on the same counter and under the same roof and both goods arc of plastic made and defendants arc also using the trade mark PEACOCK in respect of plastic goods which arc cognate goods and defendants are passing off their goods as that of the plaintiff. The sole intention of the plaintiff (defendant) is to deceive and/or to mislead the trade and the members of the public and further cause them to believe that the said goods bearing the trade mark PEACOCK are of the plaintiff's manufacture.
4. Another argument of the learned counsel for the plaintiff is that even though the defendants are not registered proprietor of the trade mark PEACOCK in relation to plastic goods which are being manufactured by the plaintiff, they are advertising said plastic goods in a mala fide manner to deceive the intending purchasers with the letter "R" and thereby committing an offence under Section 81 of the Trade and Merchandise Marks Act, 1958 as well as under S. 63 of the Companies Act, 1956. Mr. Aggarwal submits that use of letter "R" denotes registration of trade mark.
5. Learned counsel for the plaintiff has argued that use of word PEACOCK being equivalent in English to the word MAYUR in respect of plastic goods by the defendants is an infringement of plaintiff's registered trade mark Nos. 369817 and 403633. According to him the intending buyers would purchase or likely to purchase the said goods under the trade mark PEACOCK under the erroneous belief that the same are being manufactured by the plaintiff. He has also argued that the commonness of the idea suggested by the mark in question is an important factor to be considered by this Court. He submitted that by the use of word PEACOCK, ihe purchasers or intending purchasers who had been purchasing the goods under trade mark MAYUR from 1961, it has appealed to the ear and to the eye, and the name of the PEACOCK by the defendants on the same goods is likely to cause deception or confusion. In his support, he has cited . He has also cited the case of M/s. Surya Roshni Limited v. M/s. Electronic Sound Components Company decision of this Court in IA No. 11791/91 in suit No. 3564/91. The main dispute to that case related to the use of word 'BHASKAR' by the defendant on its goods when the plaintiff has been using since 1984 the trade mark of SURYA in English, Hindi and other languages relating two manufacturing and sale of fluorescent tubes, lamps, bulbs chokes and fittings thereof. The learned single Judge while considering the catena of authorities cited by both the parties held as under:
"I have given my thoughtful consideration to the submissions made by the learned counsel for the parties and have perused ihe records. Admit'tedly the user of the trade mark "SURYA" by the plaintiff lis prior in point of time than the user, of "BHASKAR" with the device of SUN by the defend ants with regard to electronic chokes. Now the question to be examined is that if a person is the prior user of a trade mark in a particular language, can another person use the trade mark using another word equivalent in translation of the word of the first person? In the present case, the plaintiffs claim the user of trade mark SURYA since 1984. In any case from the copies of the invoices filed by the plaintiff it is clear that they have been using their trade mark SURYA in respect of sale of chokes since 1986. The trade mark of the defendant in respect of electronic chokes is BHASKAR with the device of SUN. Since one of the meanings of the word BHASKAR is SUN and this coupled with device of SUN, it becomes clear that the trade mark of the defendant was likely to cause deception and confusion in the minds of the average man of ordinary intelligence qua the trade mark of the plaintiff.
In the case of N.S. Thread Company Ltd. (supra) it was held by the Supreme Court that "appellants camouflaging on Eagle into a vulture by calling it such is likely to cause confusion." Similarly in the case of Balaji Chettier (supra) it was held by a learned single Judge of the Madras High Court that the trade mark SUR1AN was similar to the trade mark SUN, the former being equivalent of the latter. In the case of Bala Krishnayya (supra), it was held that the word PRABHAT (meaning SUN in Hindi) was similar to SUN. In the present case the trade mark of the defendant is not only the word BHASKAR which means SUN but there is also device of SUN along with the word BHASKAR. I am, therefore, of the view of that the defendants trade mark BHASKAR with device of a SUN is deceptively similar to the mark SURYA of the plaintiffs."
6. In his support, Mr. Aggarwal has also cited the case N.S. Thread Co. Ltd. v. James Chadwick& Bros. in which the Supreme Court held (Paras 21, 22, and 23):--
"Under Section 8 an application made to register a trade mark which is likely to deceive or to cause confusion has to be refused notwithstanding the fact that, the mark might have no identity of close resemblance with any other trade mark.
The real question to decide in such cases is to see as to how a purchaser who must be looked upon as an average man of ordinary intelligence, would react to a particular trade mark, what association he would form by looking at the trade mark and in what respect he would connect the trade mark with the goods which he would be purchasing." If the trade mark conveys the idea of an Eagle and if an unwary purchaser is likely to accept the goods of the Appellants as answering the requisition for Eagle goods, then undoubtedly the Appellants" trade mark is one which would be likely to deceive or cause confusion. It is clear to us that the bird in the Appellants trade mark is likely to be mistaken by an average man of ordinary intelligence as an Eagle and if he asked for Eagle goods and he got goods bearing this trade mark of the Appellants it is not likely that he would reject them by saying that this cannot be an Eagle."
7. Learned counsel for the plaintiff has also cited the case of Kedar Nath v. Monga Perfumery & Flour Mills, Delhi, , it has been held that (at p 15 of AIR):--
"The certificate of registration of the trade mark is prima facie evidence of the validity thereof under Section 31 of the Act. The registration of the trade mark, if valid gives to the registered proprietor of the trade mark under Section 28 of the Act the exclusive right to its use in relation to the goods in respect of which it is registered and further to obtain relief in respect of its infringement in Ihe manner provided by the Act. Under Section 29(1) of the Act.
"29(1) A registered trade mark is infringed by a person who not being the registered proprietor of the trade mark of a registered user thereof using by way of permitted use uses in the course of trade a mark which is identical with or deceptively similar to the trade mark in relation to any goods in respect of which the trade mark is registered and in such manner as to render the use of the mark likely to be taken as being used as a trade mark."
8. It is also argued before me by the learned counsel for the plaintiff that the registration so granted in favor of the plaintiff can be challenged in rectification and as the registration was in the year 1982, after 7 years it is conclusive as per Section 31 of the Trade and Merchandise Marks Act. He has argued that as the defendants have not denied in the reply to the notice dated 9-12-1992 that the goods are different i.e. household con-(ainers, mugs, buckets and the goods are identical and of same description, he is entitled to get an interlocutory injunction in his favor.
9. On the other hand learned counsel for the defendants, Mr. G.L. Sanghi, has argued that M/s. Dawood and Dawood Pvt. Ltd. i.e. defendant No. 2, commenced the manufacturing of plastic goods under the trade PEACOCK in 1987 and not in 1992. Defendant No. 1 was incorporated and commenced the business of moulded furniture and bins under the trade mark of PEACOCK and as such the word PEACOCK forms a part of the corporate name and is used as trade mark by the defendants for their various goods since the year 1987. The main thrust of the arguments of learned counsel for the defendants is that the defendant-company has substantial exports and the exports in current year will come to US Dollars 2 millions and as compared to the turnover of Rs. 22 crores for the defendants, the plaintiff's sale turnover for the year 1992 was only a meagre Rs. 35 lakhs. He has also submitted that the PEACOCK is commonly used trade name by the companies and there is material on record to show that it has been used for a large number of goods. He. has argued that there is delay of six years in the institution of the suit and the delay coupled with prejudice results in a case of acquiescence. Learned counsel for the defendants has further argued that competing mark MAYUR as against PEACOCK is not deceptively similar. According to him. deceptively similarity is defined under S. 21 of the Trade and Merchandise Marks Act and the Court has to determine whether the use of word PEACOCK is likely to deceive or cause confusion. According to learned counsel for the defendants, there is possibility of no confusion in two marks having regard to the nature of the marks, the word PEACOCK being a national bird and being commonly used in trade for various goods and the intention of the defendants have been to start his own image and an industrial empire of their own. He has further argued that the quality of the defendants goods is better and even otherwise the goods do not have common trading channels but are positioned and used on different sale outlets. On this ground as stated above, the learned counsel for the defendants has argued that there is no cause for confusion. He has also argued that the plaintiff mark has not acquired any great field for it to be considered as known mark. Learned counsel for the defendants has further argued that the word MAYUR cannot logically be compared with PEACOCK and can easily be distinguished due to the fact that the former is a Sanskrit word and Sanskrit being a language understood by a few persons it is highly improbable that the purchaser of MAYUR brand products would be deceived by the word PEACOCK and even otherwise, in alternative, plaintiff's trade mark MAYUR is entirely dissimilar to the defendants' trade mark PEACOCK. The learned counsel for the defendants has also submitted that the plaintiff's right to use the trade mark MAYUR does not encompass the right to use the trade mark PEACOCK, which is a translation of MAYUR. The right conferred by registration only extend to a transliteration of the registered mark and not beyond it. He further argued that defendants trade mark PEACOCK bears no visual, phonetic or structural similarity whatsoever with the plaintiff's trade mark MAYUR. According to him. the manner of representation of the defendants trade mark is entirely unique and clearly distinguishable from the plaintiff's mark and there is no likelihood of confusion or deception taking place on account of the defendants use of their trade mark.
10. Next contention of the learned counsel for the defendants was that plaintiff has not been using the trade mark for buckets and mugs. The defendants have sought to assail the grant of injunction on the ground of non-user of certain items like buckets and mugs by the plaintilf. The registration of the plaintiff is dated 17-2-1980. Another interesting argument, which was urged before me by the learned counsel for defendants was that the plaintiff has filed forged documents as there are two sales tax numbers on all the cash memos but on last cash memo, which was last document at page 41 of the List of Documents only one sale tax number was given.
11. The learned counsel for the defendants has vehemently argued that sales of defendants are much larger than that of plaintiff and even otherwise defendants are bigger financially. Learned counsel for the defendants has further argued that the goods, which were registered by the plaintiff were not manufactured by the plaintiff and as such on account of non-user of the trade mark, the plaintiff cannot maintain his prayer for the interlocutory injunction.
12. Learned counsel for the defendants has cited P. M. Diesels Pvt. Ltd. v. Thukral Mechanical Works (1988) 1 Arbi LR 150 : ( in support of his arguments that, if two proprietors of the same trade mark can use it together then no party can get a restrain order in its favor. I am afraid that this authority is of no help to counsel for the defendants. Learned counsel for the defendants has also cited R.J. Reynolds Tobacco Co. v. LT.C Ltd. for the proposition that by virtue of S. 111 and sub-section (5) of S. 111 of the Trade and Mercantile Act non-user by the plaintiff either before or after registration would disentitle the plaintiff for an interim relief. I am afraid that the facts in that matter was altogether different as correctly stated by the learned single Judge that there has to be a genuine and bona fide intention to use the mark and it must exist at the date of application of the registration. In the instant case before me, trade mark is registered since 1980 and the mark has been used by the plaintiff in relation to the goods manufactured by it which bears the registration certificate, therefore, prima facie, I am of the view that the plaintiff is using the trade mark and authority cited for non-use of trade mark would not be applicable to the facts and circumstances, of this case.
13. Mr. Sanghi has further argued that the defendants have been advertising about their trade names since 1987 whereas the case of the plaintiff is that the defendants had been advertising recently. In his support he has cited the famous case of American Cynamid Co. v. Ethicon Ltd.. (1975) AC 396, it has been held:--
"As to that, the governing principle is that the court should first consider whether, if the plaintiff were to succeed at the trial in establishing his right to a permanent injunction, he would be adequately compensated by an award of damages for the loss he would have sustained as a result of the defendant's continuing to do what was sought to be enjoined between the time of the application and the lime of the trial. If damages in the measure recoverable at common law would be adequate remedy and the defend ant would be in a financial position to pay them, no interlocutory injunction should normally be granted, however strong the plaintiff's claim appeared to be at that stage. If, on (he other hand, damages would not provide an adequate remedy for the plaintiff in the event of his succeeding at the trial, the court should then consider whether, on the contrary hypothesis that the defendant were to succeed at the trial in establishing his right to do that which was sought to be enjoined, he would be adequately compensated under the plaintiff's undertaking as to damages for the loss he would have sustained by being prevented from doing so between the time of the application and the time of the trial. If damages in the measure recoverable under such an undertaking would be an adequate remedy and the plaintiff would be in a financial position to pay them, there would be no reason upon this ground to refuse an interlocutory injunction."
14. The most important point in the present controversy between the parties is whether the use of word Peacock by the defendants would constitute an infringement of the trade mark MAYUR of which plaintiff as the registered proprietor. MAYUR is a Sanaskrit name of a bird in India it is called by different name as 'MOR' or MAYURI, the English equivalent or name of MOR in English langauge is PEACOCK, Plaintiff has been using trade mark MAYUR since its registration in 1980. Trade mark MAYUR has been used by the plaintiff in relation to manufacturing and sale of plastic goods, such as buckets, jugs, mugs and trays etc. Even otherwise after going through the documents placed on record by both the parties, I am of the view that the use of the trade mark MAYUR is prior in point of time than the user of PEACOCK by the defendants with regard to aforesaid plastic goods. The question which falls for consideration and examination is that if a person is the prior user of a trade mark in Hindi, can another person use the trade mark using another word in English but conveying the same idea as conceived by the word used in Hindi. The answer is in affirmative. More so from the cash memos, invoices, advertisements filed by the plaintiff, it is clear that in relation to plastic goods for which registration was granted under trade mark MAYUR. plaintiff is a prior user. Since defendants are using PEACOCK in relation to the said plastic goods and are manufacturing and selling the same, it is clear that trade mark PEACOCK of the defendants is likely to cause deception and confusion in the minds of average man of oridinary intelligence qua the trade mark of the plaintiff.
15. In A. S. Thread Co. Ltd. (supra) Supreme Court held that appellants camouflaging on Eagle into a vulture by calling it such is likely to cause confusion. I am also supported in my view by a decision of this Court in the matter of M/s. Surya Roshni Ltd. v. M/s. Electronic Sound Components Co, (supra). In the matter of Hindustan Lever Limited v. Pioneer Soap Factor, etc., 1983 PTC 211 in which the Court had the occasion to decide infringement on the basis of the trade mark of the plaintiff, which was SUN and defendants started manufacturing and marketing the soap under the trade mark SURAJ. Court held that :--
"In the present case he urged except for the translation of the word "SUN" in Hindi, there is no similarity. The label of the plaintiff is yellow and blue whereas the defendant's label is red in colour with white background. The sun rays shown on the defendant's label are not portrayed on the plaintiffs* label. He contended that at any rate there was no evidence that a washing soap within the mark "SUN" has been marketed by the plaintiff. He further contended that there was no evidence that the soap being marketed by the defendant has been passed of as that of the plaintiff.
At this stage I am not called upon to decide the entire case on marks. It is the plaintiff's case that the defendant's soap in being or is likely to be passed off as that of the plaintiff. Whether in fact there has been any deception caused by the defendant's product is to be decided after the parties have led evidence. While deciding this application under Order 39, Rules 1 & 2 of the Code of Civil Procedure all that I have to say is whether prima facie the commodity concerned is likely to deceive the customers of the goods in question. Admittedly, the product is the same, i.e. washing soap. Suraj is the Hindi translation of the English Word "SUN". For the time being therefore I have to assess whether there is scope for confusion in the minds of the public with regard to the two marks. Applying the ratio of the cases referred to earlier prima facie the plaintiff has been able to make out a case in its favor. For the decision of the application I am satisfied that mark "Suraj" being equivalent in English to the trade mark "SUN" is to be considered deceptively similar."
16. In the case of J. C. Eno Limited v. Vishno Chemical Company, AIR 1941 Bombay 3 it has been held that:--
"In my opinion however the principle there laid down is equally applicable in a country where there is in fact no register of trade marks, and where traders have to rely on long user, of certain marks and on having acquired by long user the exclusive right to the use of certain particular marks. In my judgment, if traders in India have acquired in any language the exclusive right to the use of certain particular marks not merely as descriptive of but as distinctive of their goods, they have the right to restrain another trader from copying those words for use in connection with a similar class of goods in any other language in India, and the reason for my opinion is that there are in India, as is well known, a very large number of languages, and that a very large number of persons in India know several languages. Many persons who know Marathi know English, many persons who know Urdu know English, many person who know Gujarati know English, and so on. Accordingly, a person knowing a number of. languages would very likely be deceived if a trader translated into one of the languages which that person know the trade-mark acquired by long user by a trader in another language with which that person was familiar, and affixed that trade-mark so translated to a similar class of goods."
17. Therefore on the basis of above discussion, I am of the view that the defendants' trade mark PEACOCK in relation to the goods which are manufactured and sold by the plaintiff's trade mark MAYUR is deceptively similar.
18. In American Cynamid v. Ethicon Ltd., (1975) AC 396, the house of Lords laid down the principles governing the grant of injunction. The relative strength of each party's case as revealed by the affidavit evidence has to be seen. If the defendant's business is a recent venture, as in this case, it would be proper to grant an injunction to prevent the violation of the plaintiff's rights if the defendant can be compensated in damages. It is the defendants own case here that their first sale was made in November 1992 while the plaintiff started their business in 1-968. The balance, on the whole, in my opinion, tilts in favor of the plaintiff, Mainly for the reasons that the defendants are newcomer as compared to an established proprietor. On balance of convenience I am inclined to grant injunction.
19. There is then the question of delay. Learned counsel for the defendants has argued that the delay is fatal to the grant of an injunction. A delay in the matter of seeking an injunction may be a ground for refusing an injunction in certain circumstances. In the present case, I am dealing with statutory right based on the provisions of Trade and Merchandise Marks Act, 1958. The exclusive right is granted by the registration to the holder of a registered trade mark. I do not think that statutory rights can be lost by delay. The effect of the registered mark is clearly defined in the statute as to be incapable of being misunderstood. As a matter of fact the Supreme Court has held that actual deception may not be good and it will be sufficient for grant of injunction as soon as it is proved that the defendants are improperly using the plaintiff's marks. In the case of Rustom and Hornby Ltd. v. Zamindara Engineering Co.. , the Supreme Court held (at pp. 1650-51 of AIR) :--
"But in an infringement action the issue is as follows:
"Is the defendant using a mark which is the same as or which is a colourable imitation of the plaintiff's registered trade mark?"
It very often happens that although the defendant is not using the trade mark of the plaintiff, the get-up of the defendant's goods may be so much like the plaintiff's that a clear case of passing off would be proved. It is, on the contrary conceivable that although the defendant may be using the plaintiff's mark the get-up of the defendant's goods may be so different from the get-up of the plaintiffs goods and the prices also may be so different that there would be no probability of deception of the public. Nevertheless, in an action on the trade mark, that is to say, in an infringement action, an injunction would issue as soon as it is proved that the defendant is improperly using the plaintiffs mark.
The action for infringement is a statutory right. It is dependent upon the validity of the registration and subject to other restrictions laid down in Ss. 30, 34 and 35 of the Act. On the other hand the gist of a passing off action is that A is not entitled to represent his goods as the goods of B but it is not necessary for B to prove that A did this knowingly or with any intent to deceive. It is enough that the get-up of B's goods has become distinctive of them and that there is a probability of confusion between them and the goods of A. No case of actual deception nor any actual damage need be proved."
20. There is another angle to the whole controversy. The main thrust of the argument of learned counsel for the defendants was that the defendants are too big a business house to pass off the goods manufactured by them under the trade mark of the plaintiff. Time and again the turnover of sales of the defendants was highlighted as compared to the lower sales of the plaintiff. I do not see that in a case of infringement when the plaintiff is the holder of a trade mark in relation to certain goods and the similar goods are manufactured by the defendants, sales are of much consideration. A statutory right of a small trader in view of the registration of the trade mark cannot be denied. I am also supported in my view with the decision in the matter of an application to register a trade mark by Lyle and Kinahan Ltd. reported in the reports of Patent, Design and Trade Mark Cases, Vo. 24, No. 12 1907 RPC 249, it has been held :--
"(sic) Cannot see why we should refuse a small trader the privilege of putting his lable, which he has an unchallenged right to use in his trade, upon the Register, and thereby give him the convenient remedies for the defense of the label which arise from its being registered."
21. The Supreme Court in the case of London Rubber Co. Ltd. v. Durex Products Incorporated, had the occasion to deal with the matter regarding volume of use and approved in affirmative the findings of the High Court of Calcutta as below (at p. 1889 of AIR): --
After pointing out that it is not possible to lay down a hard and fast rule on the volume of use necessary under sub-section (2) of Section 10 he gave a pertinent illustration of a small trader who sold goods under a particular trade mark for a long time though this use or silks were small in comparison with big international traders dealing in similar goods bearing a similar trade mark and then observed:
"Even so, if there is honest concurrent use should think the small trader is entitled to protection of his trade mark. Trade mark is a kind of property and is entited to protection under the law, irrespective of its value in money so long as it has some business or commercial value. Not merely the interest of the public but also the interest of the owner are the subject and concern of trade mark legislation."
With respect, we agree with the learned Judge that in ascertaining the volume of the use it is relevant to consider the capacity of the applicant to market his goods and whether the use was commercial or of other kind.
22. Most of the arguments raised by the learned counsel for the defendants on balance of convenience may hold good in cases where an action is brought merely on the ground of passing off but principle of balance of convenience will not be applicable in cases where admittedly one party is the registered proprietor of a 'registered trade mark as in the present case. Even if there is some delay the exclusive right cannot be lost. The registered mark cannot be reduced to irrelevance.
23. A Division Bench of this Court in the case of Shri Swaran Singh Trading v. M/s. Usha Industries Emporium (India) New Delhi, dealt with the question of delay as under (at pp 344-45 of AIR):--
"There is then the question of delay. Learned counsel for the respondents had urged that the delay is fatal to the grant of an injunction. We are not so satisfied. A delay in the matter of seeking an injunction may be a ground for refusing an injunction in certain circumstances. In the present case, we are dealing with a statutory right based on the provisions of the Trade and Merchandise Marks Act, 1958. An exclusive right is granted by the registration 10 the holder of a registered trade mark. We do not think that statutory rights can be lost by delay. The effect of a registered mark is so clearly defined in the Statute as to be not capable of being misunderstood. Even if there is some delay, the exclusive right cannot be lost. The registered mark cannot be reduced to a nullity. The principles governing other types of injunctions arc not to be readily applied to a case like the present. Of course, if it was a case of a similar mark as opposed to the same mark, the concurrent user coupled with delay might be a ground for refusing an injunction. However, when the same mark is being used, in a sense, the public is deceived into purchasing the defendant's goods on the belief that they arc the plaintiff's goods, so a registered trade mark is a casualty, it is the duty of the Court to protect the registered mark. That is the whole concept of registration. So, we cannot refuse an injunction even if there is some delay as especially when the mark is the same. To refuse the injunction would tantamount to permit a fraud being practiced on unwary customers. This is a matter of principle on which the Court cannot refuse the injunction."
24. I am also supported in my view by the decision of Bombay High Court in Hindustan Embroidery Mills Pvt. Ltd. v. K. Ravindra & Co. . In Hindustan Embroidery Mills Pvt. Ltd. case
(supra), it was held that:--
"It is not the practice to consider the validity of the registration of a trade mark on Motion for interlocutory injunction taken out by the persons who has got the mark registered in his name. While a mark remains on the register (even wrongly), it is not desirable that others should imitate it.
If any essential feature of a plaintiff's registered trade mark as reproduced or appears in a mark used by the defendant, in respect of which the plaintiff's application for its registration is pending, the defendant could be restrained from using the same."
25. In the case of Power Control Appliances v. Sumeet Machinery Pvt. Ltd. reported in (1994) 1 Arbi LR 308 : (1994 AIR SCW 2760), the Supreme Court held that (at p. 2777 of AIR SCW).
"It is a settled principle of law relating to trade mark that there can be only one mark, one source and one proprietor. It cannot have two origins. Where, therefore, the first defendant-respondent has proclaimed himself as a rival of the plaintiffs and as joint owner it is impermissible in law. Even then, the joint proprietor must use the trade mark jointly for the benefit of all. It cannot be used in rivalry and in competition with each other."
26. In the case of M/s. Avis International Ltd. v. M/s. Avi Footwear Industries reported in AIR 1991 Delhi 22, it was held as under (at p. 24 of AIR) :--
"In my view, the statutory monopoly which has been conferred upon the plaintiffs in connection with use of the mark AVIS for footwear has to have primary precedence over any other consideration in relation to grant or non grant of an injunction, especially when the matter is at an interlocutory stage, and is yet to be tried, and it cannot be foreseen as to whether the defendants who seek rectification of the plaintiffs mark, on account of non-user would be able to prove their case. The statutory registration establishes prima facie case in favor of the plaintiffs."
27. In my view of the matter, I feel that taking into consideration documents filed by the plaintiff including invoices, cash memos advertisements from 1982 onward regularly the manufacturing and selling of plaintiff's goods which are registered under the trade mark MAYUR, prima facie, makes out a case in favor of grant of injunction. P. Narayan on trade mark in the third edition at page 486 has stated :--
"a plea of non-user of the registered trade mark cannot be a defense as user of the mark is not a condition precedent to filing a suit for infringement.
There is no such requirement in an action for infringement of a registered trade mark. Even if the registered proprietor has never used the mark, he can restrain the defendant from using the mark."
28. In National Bell Co. v. Metal Goods Mfg. Co. (P) Ltd., AIR 1971 SC 898, it has been held that (at p. 903 of AIR) :--
"Under S. 31. registration is prima facie evidence of its validity. The object of the Section is obviously to facilitate proof of title by a plaintiff suing for infringement of his trade mark. He has only to produce the certificate of registration of his trade mark and that would be prima facie evidence of his title. Such registration is prima facie evidence also in rectification applications under S. 56 which means that the onus of proof is on the person making such application. Being prima facie evidence, the evidence, afforded by the registration may be rebutted, but in view of S. 32 that can be done if seven years have not elapsed, since the original registration. Even where such rebuttal is possible, i.e., where seven years have not elapsed, and it is shown that the mark in question was not registrable under S. 9 as no evidence of distinctiveness was submitted to the Registrar, the registration would no! be invalid if it is proved that the trade mark had been so used by the registered proprietor or his predecessor-in-interest as to have become distinctive at the date of registration."
29. In view of the discussions above, I am of the considered view that the certificate of registration of trade mark is prima facie evidence of the validity thereof under S. 31 of the Act and it gives the registered proprietor of the trade mark under S. 28 of the Act the exclusive right to its use in relation to the goods in respect of which it is registered and further to obtain relief in respect of its infringement in the manner provided by the Act. I, therefore, accept the application (1A No. 2/93) and gnarl a temporary injunction to the plaintiff restraining the defendants, its servants, agents and representatives from manufacturing, selling or offering for sale or otherwise dealing in the plastic goods manufactured by the plaintiff in relation to goods for which trade mark MAYUR has been registered, under the name PEACOCK with or without any prefix or suffix till the disposal of the suit. In the last. I mention that whatever said above will not in any case be an opinion on the merit of the case.
30. Application is allowed in terms of the above order.
31. The defendants during the course of hearing filed the application No. 4513/94 under Order 11, Rule 1 read with Section 151 of C.P.C. praying for permission to make interrogatories to the plaintiff on the basis of presumption that the plaintiff does not deal in buckets, mugs, trays and dustbins and sought further directions to plaintiff to respond to interrogatories. Plaintiff filed its reply to the said application taking the plea that the present application was an abuse of the process of law and had been filed with the sole motive to delay the present proceedings and to avoid the injunction as the same was filed during the course of the arguments on the interlocutory application and was moved after a period of one and a half year from the date of Filing of the written statement. In the said reply the plaintiff has reiterated the stand taken in the plaint that it is wrong to suggest that plaintiff has not been using the trade mark Mayur in respect of goods in question. It has been categorically stated by the plaintiff that in fact, the plaintiff is a registered proprietor of registered trademark No. 369817 in Class 21 in respect of buckets, wash basins, water jugs, small household containers, brushes, haircombs, mugs, picnic boxes and trays (not, of previous metal or coated there with) plastic lunch boxes, Table plates, pots and dustbins all being the goods made of plastic and included in Class 21 and the plaintiff has been using the said trade mark MAYUR in respect of various households plastic goods and in fact the plaintiff has been manufacturing and selling buckets along with other goods and the said bills of such sales, which were filed on record, were genuine.
32. Another application No. 4514/94 under Order 11, Rules 12 and 14 read with Section 151, C.P.C. was also filed with the prayer (hat certain documents should be produced for defendants' inspection-documents supporting or relating to the products namely buckets, mugs, trays and dustbins, total invoices of the plaintiff relating to sale of the four products viz. buckets, mugs, trays and dustbins. Reply to the said application was also filed by the plaintiff stating therein that the application was an abuse of the process of law, misconceived and all these objections, which have been taken in the application, have been taken by the defendants in their written statement. It has also been stated that non-use of registered trade mark cannot be considered in the proceedings of interlocutory injunction application.
33. I have given my carefulf consideration to the submissions made by the learned counsel for the parties in this regard, I consider that it is highly belated on the part of the defendants to move these applications at this stage when the arguments were on the verge of completion in the main application for interim injunction. These applications have been moved by the defendants in order to delay the proceedings.
34. I dismiss both these applications with Rs. 5,000/- as costs.
IA No. 4779/94
35. In view of the aforesaid order of dismissing the applications Nos. 4513-14/94, this application does not survive and the same is dismissed with no order as to costs.
36. Order accordingly.