An interim injunction in a trademark infringement case should not be granted as a matter of course and requires the plaintiff to establish a strong reputation in relation to the trademark.

( 1 ) WE have heard this appeal after issuing a show cause notice to the defendants. As the subject-matter of the suit pending on the Original Side of the High Court was the issue of a permanent injunction to restrain the defendants from using the impugned trade mark savera , we thought an expeditious disposal of the appeal was necessary.

( 2 ) WE have had advantage of the judgment of the learned Single Judge refusing an interim injunction and we have also been taken through the record of the case. The plaintiffs-appellants claimed that they had been manufacturing soap using the trade mark savera since 18th March, 1976, but this was disputed by the defendants. On the other hand, it was claimed that after an extensive inquiry and investigation in the market, they found that the impugned trade mark was used by two soap manufacturers under some territorial limits-one manufacturer was Ashoka Industries, who had a registered trade mark restricted to the district of Ujjain and there was a similar registration in favour of Raja Soap Factory in Mysore. It thus came about that the defendant bona fide adopted the trade mark savera and applied for the registration of the same on 9th October, 1980. It was also claimed that the defendants had been continuously and extensively using the trade mark and had widely advertised the same. It was claimed that the plaintiffs had watched till extensive publicity had been given and success achieved by the defendants before filing the suit and claiming the interim injunction.

( 3 ) THE learned Single Judge refused the interim injunction on the ground that the plaintiffs also had no registered trade mark. It was held that there was no prima facie case to grant the injunction.

( 4 ) THE plaintiffs have appealed. We have been taken through the record and also have been referred to some decisions of the Delhi High Court. The question we have to ascertain is whether this is a proper case in which an injunction should be granted.

( 5 ) LEARNED counsel for the appellants contended that once prior use is prima facie established, then the interim injunction has to be granted as a matter of course. It may hardly be doubted that in case the suit of the plaintiffs succeeds, a decree for injunction to restrain the defendants from using the trade-mark savera will be passed in favour of the plaintiffs. The question whether such a relief should be granted at the interim stage before the trial is quite a different matter. The essential features of the tort of passing-off are well established. If the trade-mark in question enjoys a reputation in the public eye so as to be established as that of the plaintiff, then every time the defendants used the trade-mark, they in essense pass-off the goods as being that of the plaintiffs. It may be established at the trial of the suit that the plaintiffs have established such a reputation in relation to savera soap that it is well established in the public eye, but he may well fail to establish such a reputation. In order to get an inierim injunction in a matter of this type, that reputation must be established in such a way as to leave little doubt that the plaintiff does enjoy such a connection with the trade mark that the public generally associate the same with him.

( 6 ) THE statement of law contained in winfield and Folowics on Tort, 11th Edition, at page 507 is as follows :

"the essence of passing off is that one trader represents and his goods (or his services) as those of another and he commits the tort even if he does so innocently, that is, with no intention to deceive. All that is necessary is that the get-up or description of the plaintiff s goods should have become distinctive of them and that there is a probability of confusion between them and those of the defendant. Actual confusion on the part of a member of the purchasing public need not be proved, but proof that it has occurred will obviously assist the plaintiff s case, especially if subst