Mahinder Narain, J.

( 1 ) BY this order I intend to deal with two interim applications bearing 1. A. No. 88 of 1990 and I. A. No. 2266 of 1990. which have been filed in Suit No. 18 of 1990.

( 2 ) I. A. No. 88 of 1990 is an application under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure, whereby the plaintiffs seek to obtain an order of injunction restraining the defendants, their servants, agents, stockists, dealers and all other persons from using the trade mark AEVIS in respect of shoes or any other trade mark which is confusing or deceptively similar to the registered trade mark A. VIS of the plaintiffs. bearing registration No. 352018 (in class 25 ). The plaintiffs state that they have got the said mark AVIS registered in respect of readymade garments, wearing apparels including jeans, jackets, shirts blouses, socks, hosiery, brassers and footwear, and that the mark is registered on 1-8-1979.

( 3 ) THE other application bearing I. A. No. 2266 of 1990, which I am going to deal with, is an application under Order XXXIX Rule 4 of the Code of Civil Procedure for vacating the order of injunction granted by this Court (A. B. Saharya, J.) on 10-1-1990. whereby this Court had restrained the defendants, their servants, agents, stockists) dealers and all other persons on their behalf from using the trade mark AEVIS in respect of shoes or any other trade mark which is deceptively similar to the registered trade mark AVIS of the plaintiffs till the next. date.

( 4 ) THE case of the plaintiffs is that they are the registered owners of the word AVIS, having coined the same and got the word AVIS registered, as aforesaid, and being the registered owners of the word AVIS, they are entitled by virtue of the rights conferred by section 28 read with section 31 of the Trade and Merchandise Marks Act to injunction order, restraining the defendants from using the said mark or any other deceptively similar mark on goods, namely, footwear. The effect of registration of the mark has been succinctly stated by the Supreme Court in case American Home Products Corporation v. Mac Laboratories Pvt. Ltd and another, reported as AIR 1986 137 at page 155 (1) as follows - When a person gets his trade mark registered, he ac- guides valuable rights by reason of such registration. Registration of his trade mark gives him the exclusive right to the use of the trade mark in connection with the goods in respect of which it is registered and if there is any invasion of this right by any other person using a mark which is the same or deceptively similar to his trade mark, he can protect his trade mark by an action for infringement in which he can obtain injunction, damages or an account of profits made by the other person".

( 5 ) THE plaintiffs, therefore, say that they are entitled to have the injunction confirmed.

( 6 ) THE defendants, on the other hand, in their aforesaid application under Order XXXIX Rule 4 state that for the reason they have moved an application for rectification of the mark, the plaintiffs are not entitled to an injunction, which has been sought. It is asserted by the defendants that the plaintiffs have not, for a period of five years, or more, used the mark AVIS with respect to footwear, by virtue of the provisions of section 46 (l)fb) of the Trade and Merchandise Marks Act entitled to have the registered trade mark rectified and the mark AVIS with respect to footwears removed from the register.

( 7 ) IT is contended that no document has been filed indicating that the mark AVIS has been used by the plaintiffs In con section with footwear during the last 5 years or more.

( 8 ) THE further case of the defendants that in view of the fact that the rectification proceedings have been filed, it would not be appropriate to grant the injunction which has sought by the plaintiffs against the defendants, as prima facie the register is liable to be rectified. For this proposition, the defendants have referred to two judgments of this Court,

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