In cases of registration of marks under Section 11(a) of the Trade and Merchandise Marks Act, 1958, the question of purity of the Register in public interest is a prime consideration, unless the injury caused to a party is so substantial as to outweigh public interest.

REGE, J. :- This appeal involves a question of rectification of the Trade Mark Register by deleting mark 'Amar' registered in the name of the Appellants under No.212206B in Part 'B' of the Register in class 24 of the rules made under the Trade and Merchandise Marks Act, 1958.

2. The appellants had by their appli­cation dated 8th Nov. 1962 applied for registration of the mark consisting of word "Amar" in respect of textile piece goods. On 25-3-1964 the said mark 'Amar' was registered in the name of the appellants under No.212206B in part 'B' of the Register of Trade Mark in class 24. The Respondents thereafter on 21-5-1965 applied for the registration of the very same mark in their name. However, on being pointed out about the registration, of the said mark in the name of the appellants, the respondents made an application dated 2nd Sept. 1965 under S.56(2) of the said Act for recti­fication of the register by deleting the said mark 'Amar' as registered in the name of the appellants on the ground that the same was entered on the reg­ister without any sufficient cause. According to them, the registration of the said mark in the name of the appellants was in contravention of S.11(a) of the said Act as firstly they were the pro­prietors of the said mark before the mark was registered in the name of the appellants and secondly the said mark of the appellants being identical to that of their mark was likely to deceive or cause confusion.

3. The appellants opposed the said application for rectification, inter alia, denying that the respondents were pro­prietors of the said mark when the mark was registered in their name and that the mark was contrary to the provisions of S.11(a) of the said Act. They also pleaded acquiescence on the part of the respondents in use of the said mark by them. They also contended that their case fell under S.12(3) of the said Act on the basis of honest concurrent user.

4. The Joint Registrar of the Trade Marks held that on the material on re­cord the Register was liable to be recti­fied as the respondents were the pro­prietors of the mark at the time when the same was registered in the name of the Appellants and that the Appellants' mark being identical to that of the re­spondents was in contravention of Section 11(a). He also negatived the appel­lants' plea as to acquiescence on the part of the respondents so also their plea of honest concurrent user. Accordingly he passed an order rectifying the register by removing from the register the said mark in the name of the appellants.

5. In appeal to this court under Section 109(2) of the said Act, the very same contentions were raised before the learned Judge and all of them were negatived. It may be pointed that in connection with the contention as to acquiescence the court also considered tha question of purity of register in public interest in connection with marks fall­ing under S.11(a) of the said Act viz., marks likely to deceive or cause confusion and relevance of the question of acquiescence thereunder. He followed the decision of this court in Ciba Ltd. v. M. Ramlingam, (59 Bom LR 548) : (AIR 1958 Bom 56) holding that in respect of marks falling under S.11(a) as in this case, maintaining purity of register in public interest was of primary import­ance and the question of delay or ac­quiescence was to be considered from the point of view of any substantial injury caused to the party so as to outweigh the consideration of public interest and that the hardship of the party cannot be taken into account when the party was not an innocent party. He therefore held that in this case the question of public interest was of importance and no such hardship or injury was shown to the ap­pellant so as to outweigh the public interest. The learned Judge also nega­tived on merits the appellants' plea as to acquiescence and honest concurrent user falling under S.12(3) of the said Act.

6. Against said order of the learned Judge, the appellants have filed this ap­pe