JUDGMENT

S.B. Sinha, J. —

1. Leave granted.

2. Interpretation of the provisions of Section 46(1)(b) of the Trade and Merchandise Marks Act, 1958 (hereinafter called and referred to for the sake of brevity as ‘the said Act’) is involved herein.

3. The factual matrix of the matter, which is not much in dispute is as under :

First Respondent is the registered proprietor of a trade mark ‘Field Marshal’ for Diesel Engines since 1964 bearing No.228867. One M/s. Jain Industries got the trade mark ‘Field Marshal’ registered under clause (7), inter alia, for Flour Mills, Centrifugal Pumps, couplings for machines, pulleys included in class 7 and valves (parts of machines). The said registration was renewed for the periods 13.5.1972 and 12.5.1979; 13.5.1979 and 12.7.1986 and 13.7.1986 and 12.7.1993.

Appellant is said to have commenced its business of manufacturing and selling centrifugal pumps also under the mark ‘Field Marshall’.

Allegedly, on the premise that the first respondent is the proprietor of the said mark by reason of long user and, thus, acquired a reputation in that behalf, a legal notice was issued upon it questioning its right to use the said mark in respect of centrifugal pum