Acquiring registration of a trade mark during appeal can affect the validity of an injunction against the unregistered trade mark.

( 1 ) FAO 97/1987 is directed against the order dated 9th April, 1987 of the additional District Judge, Delhi in Suit No. 146/1986, whereby the learned Judge while disposing of an application under Order 39 Rules 1 and 2, has allowed the same and injuncted the appellant herein from using the trade mark "splash," which was not registered at that time.

( 2 ) COUNSEL for the appellant submits that during the pendency of this appeal, the order of injunction dated 9th April, 1987, passed by the Additional district Judge was stayed by this Court vide order dated 23rd April, 1987 and thereafter, the appellant has acquired the registration of the trade mark "splash" and therefore, vide order dated 16th May, 1988 of this Court, the interim order dated 23rd April, 1987 was confirmed. Counsel further submits that since the appellant now holds a registered trademark "splash", no inunction would lie against the appellant and that the only remedy available to the respondent is to have the trade mark cancelled, if at all.

( 3 ) HEARD counsel for the appellant. Nobody appears for the respondent. The submission made by counsel for the appellant appears to be valid in view of section 28 (3) of the Trade Marks Act, which envisages the rights of the parties in a situation that has now arisen between them. In that view of the matter, I set aside the order under challenge dated 9th April, 1987. FAO 97/1987 is accordingly allowed and disposed of.