The judgment establishes the importance of prior use in an action for passing off and the granting of temporary injunctions to prevent irreparable loss.

( 1 ) THIS is an application under O. 39, Rr. 1 and 2 read with S. 151 of the Civil P. C. for restraining the defendants from manufacturing, selling or otherwise dealing in the mirrors under the trade mark tony and/or any other identical or deceptively similar trade mark and also dealing in mirrors with shelf of the artistic and destinctive design and arrangement as that of the plaintiffs in a suit for perpetual injunction restrainng, passing off and rendition of accounts.

( 2 ) BRIEFLY the facts are that Manoj Plastic India, Plaintiff is a partnership concern registered under the Indian Partnership Act. The plaintiff firm has been carrying on business of manufacturing and marketing mirrors for household use since 1976. They introduced into the market mirrors with shelf with artistic and distinctive design. The shape configuration and the features of the said mirror is as follows :

"the mirror is in a rectangular shape and is fixed in a plastic frame. It has on the plastic frame two holes on the upper edge which are meant to hang the same or fix it anywhere on any wall. On the lower edge of the plastic frame, a flexible plastic shelf appears. This shelf itself is very artistic and distinctive. The shelf has on its base two flowers in the round shape and the same may be used for putting soaps, pastes and brushes etc. "

( 3 ) THE plaintiffs introduced the said mirror into the market under the trade mark TONY on 8th August. 1981 and since then it has been continuously and extensively used by them. The mirror has been manufactured by M/s. Tony Plastics (India), a firm associated with the plaintiff firm, only for the Plaintiffs who are marketing the said products in their name. The plaintiffs have given wide publicity to the trade mark TONY. The sales of the mirrors under the said trade mark TONY for one year are alleged to be Rs. 1,50,000. 00. The plaintiffs allege that on account of the superior quality of the glass of mirror and due to the artistic, distintive, eye catching design, get-up, arrangement and flexibility, multipurpose capacity and due to the continuous and extensive use of the trade mark TONY since 8th August, 1981 the plaintiffs trade mark and the mirror with shelf have acquired unique reputation and goodwill in public and trade, and the goods under the trade mark TONY are exclusively associated with the plaintiffs by the purchasing public.

( 4 ) THE plaintiffs allege that recently the defendants started manufacturing and marketing the mirror with shelf under the identical trade mark TONY, that the use and the adoption of the trade mark TONY by the defendants is dishonest and deliberate, with full knowledge of the use and existence of the said trade mark TONY of the plaintiffs, that the adoption and use of the trade mark by the defendants is a violation of the proprietary rights of the plaintiffs, that defendants have adopted identical size, get-up, lay out, arrangement, design, shape and configuration of the mirror which amount to violation of the plaintiff rights. Both the mirrors are fixed in a plastic frame having holes on the upper edge for fixing on the wall and a shelf on the lower edge having on base two flowers in round shape cuts. On these grounds the plaintiffs allege that the defendants are guilty of passing off their inferior and sub-standard mirrors as and for the quality products of the plaintiffs.

( 5 ) THE defendants have pleaded that they adopted the trade mark TONY and have been using the same since 3rd April, 1981 in respect of looking mirrors, that the plaintiffs suit is not maintainable as they are not registered proprietors of the trade mark TONY, that there is no provision in the Designs Act for any action for passing off the design, that the defendants are first adopter and user of the trade mark TONY in respect of the mirrors and as such it is protected under S. 33 of the Trade and Merchandise Marks Act, 1958. It is denied that M/s. Tony Plastics (India) is in existence or is