The central legal point established in the judgment is the importance of the exclusive right of the registered proprietor of a trade mark, the defense of common law rights, and the balance of convenience in determining the grant of an ad-interim injunction.

ORDER :

1. Appeal admitted. Notice made returnable forthwith. Respondents waive service through counsel.

2. By consent, appeal called out and heard.

3. This appeal, is directed against an ad-interim order granted by the learned Single Judge retraining the appellant from using the trade mark "MICRODINE" of which the Respondent is the registered proprietor from the year 1982 when it was registered.

4. Learned counsel for the Appellant (original Defendant) raises the following contentions :-

(a) That the trade mark "MICRODINE" in respect of specified pharmaceutical products has been used from the year 1992, as evidenced by the invoices placed on record. On the other hand, the Respondent has not been able to show that there has been any use or attempt to use the trade mark "MICRODINE" by the Respondent at any time prior to the year 1998.

(b) There is honest concurrent user of the trade mark by the Appellant and, as such, the Appellant is entitled to get registered u/s 12(3) of the Trade and Merchandise Marks Act, 1958. This gives a right to the Appellant to oppose any relief being asked for in the suit by reason of conjoint reading of Section 17(3) and Section 30(1)(d) of the Act.

(c) The Appellant coined the mark "MICRODINE" by combining a part of the name of its associate company "MICRO LABS" with a part of the name of chemical product "Iodine" and this was done honestly ; that the Appellant has invested considerable amount of money is sales promotion expenses as evidenced by the documents placed on record. The Respondent, though the registered proprietor of the mark "MICRODINE" is shown to have spent a negligible amount of about Rs. 10,000/- in sales promotion activity, that too as late as in the year 1998. Hence, the balance of convenience is in favour of not granting any ad-interim injunction.

(d) Though two Respondent got its mark registered in the year 1982, the Respondent has never used the mark upto the year 1998. That the Appellant has been using the mark, freely and openly, and to the knowledge of all in the trade, is apparent from the record of CIMS right from the year 1994-95. Having allowed grass to grow under its feet, the Appellant should not now be permitted to interfere with the use of the mark by the Respondents as delay and laches amounting to acquiescence are anathema to injunction which is an equitable relief.

5. Section 28 gives the registered proprietor of a trade mark the exclusive right to user of that trade mark. User of an identical mark as a registered Trade Mark by a person other than its proprietor is an infringement of the Trade Mark u/s 29 of the Trade and Merchandise Marks Act, 1958 (hereinafter referred to as "the Act"). There is no doubt that the marks are identical. Section 17 of the Act prohibits registration of identical or deceptively similar trade marks. The exception made in Sub-section (3) is that where there is honest concurrent use or other special circumstances warranting it, the Registrar may permit registration by more than one proprietor of trade marks which are identical in respect of the same goods or description of goods subject to such conditions or restrictions as he may think fit to impose. Section 30 of the Act deals with acts which are declared not to constitute an infringement. Clause (d) of Sub-section (1) of Section 30 provides that where two or more trade marks registered under the Act are identical, the use of the registered trade mark by one or the other cannot give rise to an action for infringement.

6. The other exceptions which could provide a defence to an action for infringement of the copy right are Section 33 and Section 34. Section 34 was not pleaded ; so, we need not be detained by it. Since much was argued by the Counsel for the Appellant on the common law rights, we need look at Section 33 of the Act. Section 33 of the Act reads as under :-

33. Saving for vested rights. -- Nothing in this Act shall entitle the proprietor or a registered user of a registered trade mark