Ashim Kumar Banerjee, J.

Backdrop:

The respondent filed a suit alleging passing off action as against the appellant for using the mark “SUNSHINE” for the product that both parties would deal with. Soon after filing of the suit, the respondent moved an application for interim protection. The learned single Judge passed the following Order:

“This is a passing off action. It is moved ex parte, according to the existing practice.

The mark involved is “Sun Shine”. The plaintiffs use this mark in sewing machines. They are using this mark, according to Mr. Bose, learned Counsel, from 1994. They have applied for registration. The application is pending.

The defendant is trying to sell identical products with the same mark. He claims user from 2007.

Prima facie the plaintiffs have been able to establish prior user.

Let notice of this application be served upon the defendant. I make this application returnable on17th April, 2014.

Order in terms of prayer (b) of the Notice of Motion till 30th April, 2014 or until further orders whichever is earlier”.

The prayer (b) of the notice of motion was as follows:

“An order injunction restraining the respondent, his men, servants, agents, empl