( 1 ) BY an ex parte order passed on 21-09-1992, an injunction was issued restraining the defendants from using the aforesaid offending trade mark and device of a map of India with oval shape identical or desceptively similar to the device of the plaintiff.

( 2 ) MR. Sahni, who appears for defendants, states that he is also the registered owner of the trade mark No. 445968-B, and that his trade mark comprises of the word nirmal enclosed in an oval shape with the map of india. Mr. Sahni contends that the map of India has been disclaimed by the defendants. Just like, the plaintiff also has disclaimed the map of India which is part of his device.

( 3 ) THE device of the plaintiff comprises of an oval shape within which there is a map of India and the word jindal written upon it, and the word trade mark appears in the oval outlines.

( 4 ) THE defendant s mark also has oval outlines, has a map of India, and the word nirmal written across the map of India.

( 5 ) THE registration No. of the plaintiff s mark jindal is 384816, dated 31-12-1981.

( 6 ) SECTION 28 of the Trade and Merchandise Marks Act gives the exclusive right to use the registered trade mark. I do not see how 1 can, by an order of injunction, restrain the defendants from using his registered trade mark.

( 7 ) I have to note that in these proceedings, in addition to the instant suit, a rectification proceeding has been filed by the plaintiff which has been consolidated with this suit by my order dated 11-05-1994.

( 8 ) MR. Sahni has contended that no person can have an exclusive right to use the device of the map of India. He has also referred to 1991 Patent and Trade Mark Cases 233, a judgment of this Court, saying that the registered owner of a mark can continue to use his registered mark and cannot be restrained by an order of injunction. I am in respectful agreement with that.

( 9 ) MR. Aggarwal refers to and relied upon 1974 (1) ILR P and H 502 DB, in which General Motor Corporation of America had sued Delco Engineering Works of Ludhiana. The General Motor Corporation had contended that it is the owner of the mark delco which was marketing goods under that name in India, and have got its mark registered. They succeeded before the District Judge who granted the injunction sought for General Motor Corporation. In the appeal filed by Delco Engineering Works in the Punjab and Haryana High Court, the appellants before the High Court failed. I do not see how that case helps Mr. Aggarwal.

( 10 ) DURING the pendency of these proceedings, I do not think it will be right for me to pass an order contrary to the terms of Section 28 of the Trade and Merchandise Marks Act by holding that an owner of a registered trade mark can be restrained by an order of injunction from using his registered trade mark.

( 11 ) THE position, however, will be determined upon evidence being led, both in these proceedings and in the rectification proceedings, if the mark of the defendant is liable to be rectified.

( 12 ) IN these circumstances, the injunction order passed by this Court on 21-09-1992 is vacated.

( 13 ) I. A. stands disposed of. IA 4471/94

( 14 ) THIS is an application under Order 6, Rule 17, Civil Procedure Code Let reply be filed.

( 15 ) TO come up for hearing on 08-09-1994 at the end of "short Matters. "

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