A registered trademark confers an exclusive right of user on the proprietor of the mark. This right cannot be defeated by prior user unless the prior user can establish that it has used the mark continuously from a date prior to the registration of the mark.

( 1 ) THIS is an appeal directed against the judgment of alearned Single Judge of this Court on the Original Side whereby an interiminjunction to restrain the defendants from using the trade mark or trade nameusha in relating to electric irons and other electrical appliances like roomheaters, stoves, angithis, ovens, hot plates, toasters and table lamps, which hadearlier been granted was virtually withdrawn. The final order passed wasthat the defendants were allowed to use the mark usha with the word golden appearing thereafter till the decision of the suit.

( 2 ) THE suit in question was based on two registered trade marks both usha which were registered in favour of the plaintiff-appellant in 1971 and1976 respectively. The trade mark no. 276920 was registered on 1 4/12/1971, and was based on the user since 1960, which was in respectof electric irons. The same mark usha bearing no. 311724 was registeredon 17/01/1976, in respect of room-heaters, stoves, angithis (furnace),oven, hot plates for cooking, heating refrigerators, bread toasters, tablelamps, etc. , being used since 1971. Thus, there were two trade marks, onefor electric irons based on the user since 1960, and one for other electrical goods registered since 1976, based on the under since 1971.

( 3 ) ACCORDING to the defendants whose name is M/s. Usha Industries (India), they had been using the trade marks from even an earlier date. Itwas also claimed that though the plaintiff had come to know of the allegedinfringement in May, 1982. the suit was filed in 1984, so there was a considerable delay in applying for the injunction.

( 4 ) THE order under appeal has the effect of permitting the defendantsto use the impugned mark during the pendency of the suit. In the case of aregistered trade mark, this creates a very difficult situation. The effect ofregistration is to give an exclusive right of user to the proprietor of theregistered trade mark. This is provided in section 28 of the Trade andmerchandise Marks Act, 1958. The only persons who can defeat thisexclusive user are persons covered by section 33 of the Act, which provides asfollows :"33. Saving for vested rights: Nothing in this Act shall entitlethe proprietor or a registered user of a registered trade markto interfere with or restrain in the use by any person of atrade mark identical with or nearly resembling it in relatingto goods in relation to which that person or a predecessor intitle of his has continuously used that trade mark from adate prior: (a) to the use of the first mentioned trade mark in relationto those goods by the proprietor or a predecessor intitle of his ; or (b) to the date of registration of the first mentioned trademark in respect of those goods in the name of theproprietor or a predecessor in title of his ; whichever isthe earlier, and the register shall not refuse (on suchuse being proved) is registrar the second mentionedtrade mark by reason only of the registration of thefirst mentioned trade mark. "in short, if there is user prior to the date of registration, then the user maycontinue. According to the defendants, now respondents, they have beenusing the marks from a prior date. There are two portions of the section,one of which refers to the date of user and the other refers to the date ofregistration. The section seems to give the earlier date as the operative date,i. e. , if the user is earlier than the registration it is that date. If we take theuser of the two trade marks as being 1960 and 1971 respectively, it meansthat the defendants must show that they have used the trade mark us HA prior to 1960 in relation to electric irons and prior to 1971 in respect of roombeaters, stoves, angithis, hot plates, etc.

( 5 ) ACCORDING to learned counsel for the respondents, the prior user isestablished from a mass of documents placed on record. We have examinedsome of these documents and must admit that it is difficult to determine whatthe nature of that user was, if any. We ar