In an action for passing off, the plaintiff must establish user of the mark prior to the impugned user by the defendants to succeed in getting an interim injunction. Registration of a trade mark is irrelevant in an action for passing off. Concurrent user need not be continuous and uninterrupted to satisfy the requirements of Section 12 (3) of the Trade and Merchandise Marks Act, 1958. It is sufficient if there is a consistent use of the mark in a commercial sense.

( 1 ) THE plaintiff has brought this suit under Sections 105 and 106 of the Trade and Merchandise Marks Act, 1958 as well as under Section 51 of the Indian Copyright Act, 1957 seeking the relief of permanent injunction and rendition of accounts. The case disclosed in the plaint is that the plaintiff is the proprietor of the trade mark hariyali LABEL in relation to rice which was adopted on 1. 4. 1993 and has been continuously in use thereafter. It is averred that in order to acquire statutory rights for the trade mark HARIYALI LABEL, an application in Clause 30 of the Trade and Merchandise Marks Act, 1958 was filed on 9. 8. 1996 and this application is still pending. It is further averred that the plaintiff is the proprietor in the artistic feature of HARIYALI LABEL and that she holds its copyright. An application for registration under Section 45 (1) of the Copyright Act was filed by her on 22. 2. 1999 and No Objection Certificate was granted by Registrar, Trade Marks on 7. 7. 1999. Since the plaint is dated 16. 7. 1999 it is obvious that this Certificate is springboard for the litigation. It is further averred that the trade mark HARIYALI LABEL has become distinctive to the plaintiff s goods, on account of its extensive and exclusive user. The plaintiff has further set out its sales figures commencing with the year 1992-93. It has thereafter been pleaded that considerable expenses have been incurred by the plaintiff towards its advertisement of the trade mark HARIYALI LABEL.

( 2 ) IT is the plaintiff s case that defendant No. 2 of which defendant No. 1 is a sister concern was the commission agent of the plaintiff who used to sell rice bearing this trade mark and that the -defendant was fully aware about the use and reputation of the plaintiff in respect of the trade mark HARIYALI LABEL. On this premise it was pleaded that the use of this trade mark by the defendants could not be anything but a deliberate imitation. Keeping all this in perspective, it is the plaintiff s allegation that the public, when dealing with the defendant in respect of this product would in fact be misled into thinking that they were dealing with the plaintiff. Since both parties are rice dealers confusion in the mind of the public is certain to be caused.

( 3 ) IT is further averred in the plaint that a criminal complaint under Sections 78 and 79 of the Trade and Merchandise Marks Act, 1958 as well as under Sections 63 and 64 of the Indian Copyright Act, 1957 was filed against unknown persons and that the plaintiff effected seizure at the defendants premises of large quantity of spurious rice duly labelled "hariyali LABEL".

( 4 ) IN the conspectus of these alleged facts an ex parte ad interim injunction had been granted on 3. 8. 1999 to the plaintiff in I. A. 7268/99. I. A. 7965/99 was thereafter filed underorder 39, Rule 4 of the Civil Procedure Code by the defendants. A reply to the plaintiff s I. A. 7268/ 99 together with Written Statement was also filed.

( 5 ) THE case pleaded by the defendants, inter alia, is that the plaintiff has not only sworn a false affidavit but has also filed false documents inasmuch as the word hariyali has been added in the invoices filed on pages 42 to 53 of the document file. It is further ponted out that these invoices relate to a period prior to 1. 4. 1993 and therefore contradicts the averment in the plaint that the plaintiff has been using "hariyali LABEL" since 1. 4. 1993. It is stated that defendant No. 2 is the proprietor of the trade mark HARIYALI LABEL in relation to rice and that this has been adopted by the defendant since 1. 1. 1994 and has been continuously in use from that date. Whilst it is pleaded by the plaintiff that defendant No. 2 is its commission agent, in contradiction thereto it is also pleaded that the plaintiff came to know only on 8. 7. 1999, when the Registrar of Trade Marks, Bombay, issued a show-cause notice to defendant No. 2 for cancellation of "no Objection Certificate