A proprietor of a trademark is entitled to an injunction to prevent passing off of goods by a competitor.

( 1 ) THE plaintiff has filed this suit seeking injunction against the defendant to prevent passing off and rendition of accounts. Along with the plaint, the plaintiff has also filed an application under Order 39 Rules 1 and 2 Civil Procedure Code. for interim injunction.

( 2 ) THE plaintiff is a company incorporated under the laws of England and has its principal office at 30, Duke Street, St. Jame s London, Swix6dl, United Kingdom. The plaintiff is a highly reputed company engaged in the business, inter alia of manufacturing and marketing a wide variety of goods including ready-made garments and other textile articles under the trademark dunhill. The trade mark dunhill has been used on a very extensive scale for very many years. The products of plaintiff are known all over the world and the trademark dunhill belonging to plaintiff company has acquired global reputation. Plaintiff s various products are available for sale at the duty free shops and stores of the Indian Armed Services. The plaintiff is the exclusive owner of the following registrations of the trade mark dunhill in India as detailed in para No. 16 of the plaint: -.

( 3 ) ACCORDING to the plaintiff, defendants are engaged in the business of manufacturing and marketing textile articles. Sometime, in 1990, plaintiff received a communication from the Trade Marks Registry, Mumbai that defendant No. 2 had filed an opposition to the plaintiff s application under No. 395483 B in Class 24 for registration of the trade mark DUNHILL claiming proprietorship and user thereof since 31. 5. 1986. However, the said opposition proceedings were dismissed vide order dated 10. 2. 1995 passed by the Assistant Registrar of Trade Marks on the ground that defendant had failed to establish prior user of the trade mark DUNHILL. Thereafter, in 1992, defendant No. 2 filed yet another opposition to the registration of the plaintiff s application No. 390002 B in Class 25 for the trade mark DUNHILL. On 28. 3. 1994, plaintiff filed an opposition before the Registrar Trade Marks, Mumbai to defendant No. 2 s application No. 450058 dated 24. 2. 1986 for registration of trade mark DUNHILL, which was published in the Trade Mark Journal dated 1. 12. 1993. Subsequent to the filing of the opposition proceedings, plaintiff learnt that defendants had discontinued the use of the mark DUNHILL. However, sometime prior to the institution of the present suit, it came to plaintiff s notice that defendants have again started manufacturing and marketing their textile articles under the trade mark DUNHILL and they are passing off their products as those of plaintiff. The plaintiff, therefore, sought and prayed, inter alia, for permanent injunction to prevent passing off and rendition of accounts.

( 4 ) THE defendants resisted the suit contending that plaintiff has not used the trade mark DUNHILL in India and so plaintiff has no right in respect of the said trade mark in this country. The plaintiff s textile products are not available in India and plaintiffs alleged reputation and goodwill of the trade mark DUNHILL stood extinguished due to the restriction on import of foreign goods in India. The defendants have been using the mark DUNHILL since 31. 5. 1986, and thus there is an inordinate delay of 11 years in bringing action which is fatal to the present suit. According to defendants, the user of the mark Dunhill by them does not amount to passing off.

( 5 ) IT was made clear by the learned counset for plaintiff that the grievance in the present suit relates only to action in passing off. The first question to be determined is whether plaintiff has made out a prima fade case for grant of ad interim injunction. It has to be borne in mind that prima facie case is not to be confused with prima facie title, which has to be established on evidence at the trial. To establish a prima facie case, the party seeking ad interim injunction should show that there is a credible dispute with respect