( 1 ) THIS is an appeal from the judgment and order passed by a learned Single Judge on the appeal filed by the appellant under section 109 of the Trade And Merchandise Marks Act, 1958 from the order of the Deputy Registrar of Trade Marks, Calcutta.

( 2 ) THE relevant facts of the case are that the appellant is a company incorporated under the laws of Japan and carries on business in various electronic and electrical goods. The appellant claims to be the proprietor of the registered trade mark Toshiba having trade mark No. 273758 in respect of class 7 goods. Such registration is dated 26th July, 1971 and is in respect of current Generators, Induction Motors (Electric), Electric Washing Machines, compressors (Machinery), Electrical Tool Set consisting of Electric Drills (Machines), Spin Dryers and Can Openers.

( 3 ) THE respondent Tosiba Appliances Company Ltd. , an Indian company, claims to have been carrying on business in various electrical appliances and have been selling Auto Irons, Toasters, Immersion Rods, Extension Cords, Table lamps, Airy Fans under the trade mark Tosiba since 1975. It is claimed that for the years 1985, 1986, 1987, 1988 and 1989 a