The registered owner of a trademark has the exclusive right to use the said trademark, but an earlier user can prevent the registered proprietor from using the trademark.

( 1 ) THIS is an application under Order 39, Rules 1 and 2 for grant of ad interim injunction restraining the defendants from using the mark. "crown" in respect; of the tooth picks which are being manufactured and sold by the defendants.

( 2 ) THE case of the plaintiff is that it is a registered proprietor of the trade mark CROWN in respect of tooth picks This registration was granted in 1986 with effect from 10th September, 1980 It is further alleged that the plaintiff has been using the trade mark Crown since January, 1980 According to the plaintiff, the defendants have started using the trade mark Crown in respect of tooth picks on or after December, 1980,t The plaintiff, therefore, prays that as it is the proprietor of the trade mark Crown, the defendants should be restrained from using the said mark.

( 3 ) ON behalf of the defendants, it has been contended that the defendants have adopted the mark Crown in respect of tooth picks when in 1977 they had applied to the Government of West Bengal for grant of provisional registration for manufacturing round wooden tooth picks. The machinery for the said 229 tooth picks was imported in the year 1980 and according to the defendants trial production of rounded tooth picks commenced sometimes in September, 1980. It is further alleged by the defendants that they are selling rounded tooth picks all over India and the plaintiff has started manufacturing rounded tooth picks only in the year 1987. The further allegation of the defendants is that the defendants have also applied for the grant of registration of the trade mark Crown in respect of rounded tooth picks. This application was made in January, 1982. According to the defendants, they have also taken steps for the rectification of the register by praying for concellation of the trade mark registered in the name of the plaintiff

( 4 ) UNDER the provisions of Section 28 of the Trade Marks Act, the registered owner of a trade mark, when the registration is validly granted has the exclusive right to use the said trade mark. One of the exceptions to this rule is contained in Section 33 which, inter alia, provides that if another person is using the same or identical trade mark earlier in point of time to the user or the registration of the trade mark by the registered proprietor then, because. of the earlier user, the registered proprietor cannot prevent such a user. In the present case it is disputed by the defendants that the plaintiff s user of the mark Crown was earlier in point of time than that of the defendants. The plaintiff has, however, placed on record copies of the bills in an effort to show that it has been selling tooth picks under the mark Crown even from January, 1980. However, one thing is admitted and that is that the plaintiff has manufactured and sold rounded tooth picks only from ther 1987. The defendants, on the other hand, have manufactured and sold rounded tooth picks since at least December, 1980.

( 5 ) THE application of the plaintiff for the grant of the registration of the trade mark Crown was advertised in 1985. Since before that time, it is clear, that the defendants had been using the mark Crown in respect of rounded tooth picks. It is true that the defendants did not file any objections to the grant of the registration of the mark in favour of the plaintiff, but that does not prevent the defendants from taking appropriate proceedings for the rectification of the register. In any case, what is important to note is that the defendants have, prior to the advertisement of the application of the plaintiff for registration, themselves applied in January, 1982 for registration of the said trade mark for manufacture of rounded tooth picks. It is contended by the learned counsel for the defendants that the Registrar can, by invoking the provisions of Section 12 (3) of the Trade Marks Act, grant registration of more than one proprietor of a trade mark which is identical in case of honest concurrent use