In the absence of a registered trademark, prior user determines the rights of the parties.

( 1 ) SHRI Sham Lal, plaintiff, has alleged that he is trading as M/s. Anil and Co. since 10th May, 1965 and doing business as manufacturer of artist and paint brushes. Defendant No. 1 is stated to be a Private Limited Company, which has its export division under the name and style of Interads Export Division (defendant No. 2 ).

( 2 ) THE plaintiff has further stated that the brushes, which he manufactures and markets, are affixed with the trade mark anil , depicting a key portion of his trade style; that from the date he had started manufacturing, he has sold brushes valuing about Rs. 6,41,374. 21 and that on account of the superiority of brushes and skill in sale promotion, the brushes affixed with the trade mark anil have achieved recognition and reputation with the trade and the general public. It is further added that the application of the plaintiff for the registration of the trade mark anil in respect of brushes is also pending with the Trade Marks Registry.

( 3 ) IT is further averred that on account of the continuous and extensive user during the last 12 years, the plaintiff s brushes affixed with the trade mark anil are exclusively associated and identified with the plaintiff s brushes. The plaintiff has thus earned reputation, goodwill and name with the trade and users of the brushes.

( 4 ) IT is further alleged that from 18th April, 1974 the defendants had been purchasing his brushes affixed with the trade mark anil and exporting the same to USSR. The purchase had been worth lakhs of rupees. But from 21st April, 1977 the defendants had stopped buying his brushes. It is further added that in the first week of May, 1977, the plaintiff had come to know that the defendants were themselves manufacturing and also purchasing artist brushes from other sources and were affixing the trade mark anil thereon without the permission and consent of the plaintiff. In this way the defendants have marked and sold the brushes with the trade mark anil worth several lakhs of rupees. The plaintiff has thus alleged that the defendants have committed infringement of his rights and have passed off a large quantity of brushes with the trade mark anil . He accordingly instituted a suit for the grant of perpetual injunction, passing off, rendition of accounts, etc.

( 5 ) ALONG with the plaint, the plaintiff also made an application (I. A. 2048 of 1977) under O. 39, Rr. 1 and 2 and S. 151 of the Code of Civil Procedure and prayed for the grant of temporary injunction restraining the defendants from manufacturing, marking and selling the brushes artist and paint with the mark anil .

( 6 ) THIS application has been resisted by the defendants. It is denied that the plaintiff had been using the impugned trade mark from 1965. It is, however, added that the trade mark anil belongs to the defendants, who have been openly using the same since 1973. The defendants had also been exporting the brushes with the same trade mark. It is also stated that on receipt of the orders for export, the paint brushes were got manufactured from more than ten manufacturers including the plaintiff and that trade mark anil was affixed on all those brushes. It is, therefore, stated that there has been no infringement of the alleged trade mark. In his rejoinder, the plaintiff has re-asserted the allegations made in the application.

( 7 ) BOTH the parlies have produced some documents and have also filed affidavits to support their respective assertions. On the request of the parties the persons, who had given their affidavits, were summoned for cross-examination. They were duly cross-examined. The learned counsel for the parties have also addressed their arguments for a considerable time.

( 8 ) IT may be stated in the very outset that the trade mark anil appearing on the brushes is not a registered mark. So it is the prior user, which would determine the rights claimed by the contesting parties.

( 9 ) THE learned counsel for the plaintiff has