( 1 ) THE plaintiff in this passing off action has sought, pending the judgment which will one day (God help us) be delivered, an injunction restraining the defendants from manufacturing/processing, selling or offering for sale phenyle under the trade mark- "doctor s Phenyle" label or any other trade mark identical with or deceptively similar to the plaintiffs trade mark "doctor BRAND"

( 2 ) THE facts need not detain us for long. On December 19, 1963 the plaintiff, a firm based in Uttar Pradesh, adopted the trade mark DOCTOR BRAND with device of Bust portrait of one of the partners in relation to phenyle and since then has been carrying on extensive business throughout the country. On the other hand the defendant is a Calcutta based firm and it too has been openly selling phenyle since 1983 under its mark "doctor s" with large sales in Eastern and Southern India and in the State of Uttar Pradesh. Both the contending parties have been advertising their goods and their sales have been progressing with the passage of each year. The plaintiff claims that when in the second week of June, 1990 it came to know that the defendant was selling its goods under the trade mark DOCTOR s phenyle it addressed a notice ojune 14 calling upon it to refrain from using the said mark in relation to phyenyle but the defendant refused to do so by its letter of July 24, 1990. The plaintiff also claims to have come to know in July, 1991 about an advertisement of the defendant s goods published on June 18, 1991 in the newspaper "gandeve". On September 15, 1991 was filed the present suit under Sections 105, 106 of the Trade and Merchandise Marks Act, 1958 alongwith an application for ad-interim injunction order.

( 3 ) I think that is all I need say about the history of the matter except this. We are now in March, 1992 and the defendant has been openly carrying on business since the year 1983, and at least from June, 1990 to the admitted knowledge of the plaintiff. What is of more significance is the fact that when served with the notice, the defendant made it clear, and that was in July, 1990, that it would rather not desist from marketing its phenyle under the mark "doctor s". And yet the suit was instituted on September, 30, 1991, that is, after a long delay of more than one year and two months. In Century Electronics Ltd. vs. C. V. S. Enterprises Ltd. 1983 FSR I, delay of four months was considered sufficient to deny interim relief. It is this which has given me lot of anxiety. It is said, as has been often said before, that vigilantibus non dormientibus suppetit lex: if you want the law to help you must keep awake, and more especially in respect of interlocutory relief, because it is a relief which you obtain not only upon less than direct proof of facts but also on (as it is said) the balance of convenience pending the trial.

( 4 ) NOW, having admittedly come to know of the activities of the defendant in June, 1990 and having also come to know in July, 1990 that the defendant would not change the mark but would continue to trade as in the past, what did the plaintiff do? It waited till the end of September, 1991 Why did it wait till then? Well, there has been some attempt to explain. It is said:

"the plaintiff endeavoured to find the said product of the defendant under the trade mark DOCTOR s phenyle lavel in different markets of the country but the plaintiff could not lay his hands on such impugned goods of the defendant bearing the impugned trade mark despite best efforts. The plaintiff also tried to ascertain the business activities of the defendant under the impugned trade mark after the service of legal notice dated 14. 6. 90 and it was found that the defendant stopped using the impugned trade mark i. e. DOCTOR s phenyle label in relation to his phenyle. "

( 5 ) TRUE, it is a preliminary stage calling for an interlocutory order, but it does not mean that I must keep my eyes closed, accept every word the plaintiff says as Gospel tr