A registered trademark confers an exclusive right of user on the proprietor of the mark, and any unauthorized use of the mark by a third party constitutes infringement.

( 1 ) THIS is an appeal directed against the judgment of a learned Single Judge of this Court on the Original Side whereby an interim injunction to restrain the defendants from using the trade mark or trade name USHA in relation to electric irons and other electrical appliances like room heaters, stoves, angithis, ovens, hot plates, toasters and table lamps, which had earlier been granted was virtually withdrawn. The final order passed was that 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 and 1976 respectively. The trade mark No. 276920 was registered on 14th December, 1971, and was based on the user since 1960, which was in respect of electric irons. The same mark usha bearing no. 311724 was registered on 17th January, 1976, in respect of room-heaters, stoves, angithis (furnace), oven, hot plates for cooking, heating refrigerators, bread toasters, table lamps, etc. , being used since 1971. Thus, there were two trade marks, one for electric irons based on the user since 1960, and one for other electrical goods registered since 1976, based on the user 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. It was also claimed that though the plaintiff had come to know of the alleged infringement 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 defendants to use the impugned mark during the pendency of the suit. In the case of a registered trade mark, this creates a very difficult situation. The effect of registration is to give an exclusive right of user to the proprietor of the registered trade mark. This is provided in S. 28 of the Trade and Merchandise Marks Act, 1958. The only persons who can defeat this exclusive user are persons covered by S. 33 of the Act, which provides as follows :-

"33. Saving for vested rights :-Nothing in this Act shall entitle the proprietor or a registered user of a registered trade mark to interfere with or restrain in the use by any person of a trade mark identical with or nearly resembling it in relation to goods in relation to which that person or a predecessor in title of his has continuously used that trade mark from a date prior- (a) to the use of the first mentioned trade mark in relation to those goods by the proprietor or a predecessor in title of his; or (b) to the date of registration of the first mentioned trade mark in respect of those goods in the name of the proprietor or a predecessor in title of his; whichever is the earlier, and the Registrar shall not refuse (on such use being proved) to register the second-mentioned trade mark by reason only of the registration of the first mentioned trade mark. "in short, if there is user prior to the date of registration, then the user may continue. According to the defendants, now respondents, they have been using 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 of registration. 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 the user of the two trade marks as being 1960 and 1971 respectively, it means that the defendants must show that they have used the trade mark usha prior to 1960 in relation to electric irons and prior to 1971 in respect of room heaters, stoves, angithis, hot plates, etc.

( 5 ) ACCORDING to learned counsel for the respondents, the prior user is established from a mass of documents placed on record. We have examined some of these documents and must admit that it is difficult to