In an action for passing off, the plaintiff must establish a prima facie case of deception and the balance of convenience must be in favor of the plaintiff.

A. L. Vaidya, J.—The plaintiffs-petitioner is a public limited Company, having its registered office at Ghaziabad, Uttar Pradesh, and a factory at Rajpura (Punjab). The petitioners are manufacturing and selling Vanaspati oil with the trade mark "GAGAN" with a flower like device white printed on dark blue background since the year 1974 in tins, HDP containers and pouches The defendants-respondent, according to the petitioners, have started, as per the plaintiff, with mala fid? and illegal designs using the mark deceptively similar to the trade mark of the plaintiffs petitioner and the defendants-respondent are using a flower like device and the word "ANGAN", being used by the defendant is deceptively similar to the trade name "GAGAN" of the plaintiffs. The plaintiffs-petitioner have filed suit No. 151 of 1993 wherein the following reliefs have been prayed for : "(i) A decree and an order of permanent injunction restraining the defendants, their servants, agents, representatives and dealers from manufacturing, selling, offering for sale, directly or indirectly dealing in Vanaspati Oil in blue pouches with the name "ANGAN" and a flower like device as are colorable imitation of the plaintiffs Vanaspati Oil pouches bearing trade mark "GAGAN" with flower like device on blue pouches giving the impression that the defendants vanaspati oil pouches with impugned trade mark with flower like device is either coming from the plaintiffs source of manufacture or in any manner sold or offered for sale having the impugned trade mark with the plaintiffs and its business. (ii) That an order for the destruction of pouches of vanaspati oil bearing impugned mark Annexure P-6 and for destruction of its pouches and other material concerning the impugned trade mark. (iii) That an order for rendition of accounts/accounts of profit of the defendants with regard to manufacture and sale of vanaspati oil purchased with the impugned trade mark be passed and a decree be passed in favour of the plaintiffs and against the defendants for an amount of rupees two lacs alongwith interest at 18 per cent per annum. (iv) That such other orders as this Court may deem just, fit and proper in the facts and circumstances of the case. (v) Costs of the proceedings be also awarded in favour of the plaintiffs against the defendants."

2. In the aforesaid suit the plaintiffs have preferred the present application under Order 39, Rules 1 and 2 read with section 151 of the Code of Civil Procedure. It has been pleaded in the application that the plaintiffs trade mark was registered with the Registrar of Trade Mark under the provisions of Trade and Merchandise Mark Act, 1956, under No. 301001 dated 26th November, 1974 in respect of Vanaspati oil and the same has been renewed from time to time and the registration was still valid It was also pleaded that the plaintiffs trade mark was also registered with the Registrar of copy right under the provisions of Copy Right Act, under Registration No. 125/7/75 dated 10th February, 1975 and the registration of the same was still valid. According to the plaintiffs-petitioner, their trade mark by virtue of its long established usage, since the year 1974, has acquired a valuable good-will and reputation in the trade so much so that the use of any identical deceptively similar trade mark was liable to cause confusion and deception and to give an impression that the Vanaspati oil thus sold was either those of the plaintiffs manufacture or was, in any way, connected with the plaintiffs or their business amounting to passing of. The petitioners alleged that the monthly sale of their products was about 2000 tonnes of vanaspati in pouches.

3. It has also been pleaded that the defendant-respondents, with a mala fide and illegal designs have wrongly started using the mark deceptively similar to the trade mark of the plaintiffs. The defendant-respondents were using a flower like device and the word "ANGAN", being used by the defendants is decept