Lalson Machines vs Sachar E&M Stores
1985 Latest Caselaw 516 Del

JUDGMENT

D.P. Wadhwa, J.

(1) Mr. Aggarwal had referred to a Division Bench decision of this court in Swaran Singh vs. Usha Industries (India) and another, F.A.C (OS) No. 156/1984, decided on 18.11.1985, wherein question of delay was considered. It was said that delay in the matter of seeking an injunction might be a ground for refusing an injunction in certain circumstances, but in the case where there is a statutory right based on the provisions of the Act and excusive right is granted thereby by registration to the holder of the registered trade mark, the statutory right cannot be lost by delay.

(2) Various contentions raised by the defendant would be tried during the course of the trial of the suit but prima facie it appears to me that the plaintiff has made out a case for grant of temporary injunction. There is a valid trade mark registered in the name of the plaintiff and its rights are, therefore, to be protected during the pendency of those proceedings. Moreover, as submitted by Mr. Aggarwal, it is a ease of triple identity where the mark used by the defendant is the same, the goods are same and also the trade area. On the facts of the present case also it does not appear to me. at this stage, to be very material as to whether the mark is registered in Part A or Part B. Balance of convenience is in favor of the plaintiff and unless right of the plaintiff is protected it is likely to suffer a great deal of loss. I may here quote with advantage the following observations from the aforesaid judgment of the Division Bench of this court :- "However, when the same mark is being used, in a sense, the public is deceived into purchasing the defendant's goods on the belief that they are the plaintiff's goods, so a registered trade mark is a casualty, it is the duty of the Court to protect the registered mark. That is the whole concept of registration. So, we cannot refuse an injunction even if there is some delay especially when the mark is the same. To refuse the injunction would tantamount to permit a fraud being practiced on unwary customers. This is a matter of principle on which the Court cannot refuse the injunction".

(3) Accordingly, the application is allowed, and the defendant is restrained, during the pendency of this suit, from manufacturing, selling or offering for sale air compressors under the trade mark MASTER.