Hitachi Ltd. Vs. Ajay Kr. Agarwal and ors. - Court Judgment

Excerpt:
civil procedure code 1908 - order 39 rule 1 & 2--infringement of trade mark 'hitachi'--respondent selling the goods under the trade mark 'hitachi'--both the trade marks phonetically similar and likely to cause confusion--the plaintiff entitled to interim injunction restraining the defendant from using the trade mark 'hitaishi' in hindi/devnagari scripts.trade & merchandise marks act, 1908 - section 12(3)--application thereunder--concurrent use of trade mark--mere pendency of an application for registration of trade mark on the basis of concurrent use cannot entitle a party to infringe registered trade mark of another. - - that apart the appellant has entered into collaboration agreements with the following indian companies, which are using the trade mark 'hitachi' company.....anil dev singh, j. (1) admit. (2) this is an appeal under section 109(2) of the trade & merchandise marks act,1958 (for short 'the act') against the order of the learned single judge dated may 24, 1994 whereby he declined to grant an ad interim injunction restraining the respondents from using the trade mark ' hitaishi ' in hindi script, though an ad interim injunction was granted to the plaintiff-appellant restraining the defendants- respondents from marketing and selling their goods under the trade name ' hitaishi' written in english script. the factual matrix of the case as set out in the plaint is as follows: (3) the appellant is a multi national corporation having its head office in tokyo.it carries on business through several consolidated subsidiaries and non- consolidated.....

Judgment:

Anil Dev Singh, J.

(1) ADMIT.

(2) This is an appeal under Section 109(2) of the Trade & Merchandise Marks Act,1958 (for short 'the Act') against the order of the learned Single Judge dated May 24, 1994 whereby he declined to grant an ad interim injunction restraining the respondents from using the trade mark ' Hitaishi ' in Hindi script, though an ad interim injunction was granted to the plaintiff-appellant restraining the defendants- respondents from marketing and selling their goods under the trade name ' HITAISHI' written in English script. The factual matrix of the case as set out in the plaint is as follows:

(3) The appellant is a multi national Corporation having its Head office in Tokyo.It carries on business through several consolidated subsidiaries and non- consolidated subsidiaries and Affiliaties in many parts of the world including service net work in 41 countries. The appellant is engaged in diverse activities including the manufacture and sale of wide and varied range of products under the trade name 'HITAICHI'. International sales of the appellant in the year 1992 exceeded Yen 40 million. In the 1992 Directory of Global Corporations, the appellant is recorded as the 12th largest industrial corporation of the world. In this regard in para 2 of the plaint it is averred as follows:

'..........THEplaintiff is one of the leading industrial corporate giants of the world and ranked 12th in the list of 'the world's largest Industrial Corporations' in the publication entitled 'THE 1992 Directory Of Global CORPORATION'. The Global 500: Largest Industrial Corporations:The Global Service 500; Largest Non-Industrial Corporations' of Fortune Magazine, which is popularly known as Fortune 500. For 1989, the plaintiff's ranking in the said publications was 9th and for 1990 it was also 9th'.

(4) The appellant's trade mark 'HITACHI' is an invented word and is a combination of two Chinese characters, 'Hi' and 'Tachi'. 'Hi' means the Sun and 'tachi' means to rise or to stand and thereforee means Rising Sun. This mark was adopted by the appellant in the year 1910 and is registered in its favor in respect of its products in 165 countries of the world.

(5) Appellants trade mark 'HITACHI' is also registered in India in respect of electrical and electronic apparatus and instruments and parts thereof including public address apparatus and instruments', sound amplifiers Loud Speakers, mircophones, condensers etc. in class 9. The registration of the appellant with respect to these goods is from May 14,1976 under Registration No.14808. The appellant claims that the trade mark 'HITACHI' has become distinctive of its goods and is being exclusively associated with it by the consumers all over the world. The appellant has two subsidiaries companies in India, namely, Dass Hitachi Pvt. Limited and Transformers and Electricals Kerala Limited. Dass Hitachi Private Limited was incorporated in the year 1960 and is engaged in the business of manufacturing and selling of watt hour energy meters,refrigeration controls etc. Transformers and Electricals Kerala Limited was incorporated in the year 1963 and is engaged in the business of selling of Transformers and Refrigerators etc. That apart the appellant has entered into collaboration agreements with the following Indian companies, which are using the trade mark 'HITACHI' :

COMPANY PRODUCTS TRADE Mark Best & Elevator Beacon-Hitachi Crompton Circuit Breaker CGL-Hitachi Contractor Crompton Hitachi Deltron Battery Deltron-Hitachi Tata Engineering Excavtor Tata-Hitachi & Locomotive Co. (Telco).

(6) Besides Western Electricals Ltd.have been acting as an agent of the appellant and has been marketing 'HITACHI' Electronic Products. They were also authorised to service Hitachi electrical goods sold in India. The appellant has obtained registration in respect of wide range of goods in classes 1, 2, 3, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 21, 22, 23, 24, 26, 27, 28.

(7) 29,30,31,33, and 34 and has also applied for registration of the mark in classes 4,15,16,17,18,19 and 31 of the Fourth Schedule to the Trade and Merchandise Marks Rules,1958. The appellant has alluded to the wide publicity given to its products under the trade name 'HITACHI' in this country. It is also averred that in India the appellant in the course of its business has made extensive use of the trade mark 'HITACHI'. The upshot of the various details given in the plaint has been summed up by stating that the trade mark 'HITACHI' has been associated with the appellant by the traders and the consumers.

(8) The case of the appellant against the respondent is that sometime in November 1993 the appellant discovered that the respondents were using trade mark 'HITAISHI' for the latter's sound amplifiers and were also using 'HITAISHI' in their corporate name as Hitaishi Electronics Pvt.Ltd. The appellant also noticed from the Trade Mark Journal dated October 16, 1993 that the respondents had applied for registration of trade mark 'HITAISHI' in Hindi in respect of sound amplifiers etc in class 9 of the Fourth Schedule to the Trade & Merchandised Marks Rules,1959. The appellant filed its notice of opposition to the registration of trade mark 'HITAISHI' before the concerned authority. These proceedings are pending. The appellant also served a legal notice dated December 11, 1993 to the respondent requiring the respondent to give up the use of the mark 'HITAISHI'. However, the respondent failed to reply to the notice. The appellant then brought a suit for permanent injunction, infringement of trade mark, passing off and rendition of accounts. The appellant also filed an application for restraining the respondent from using the trade mark 'HITAISHI' in respect of the latter's sound amplifiers etc.

(9) On the other hand the respondent pleaded in its written statement that respondent No.6 was incoroprated on May 1, 1984 and is engaged in the manufacture and sale of loud speakers under the trade mark 'HITAISHI' in Hindi/devnagri script. The respondents maintain that the two words 'HITAISHI' in Hindi script and 'HITACHI' are not similar to each other and there is no question of any member of the public being misled by the use of trade mark 'HITAISHI' in respect of their goods. The respondents also relied upon the meaning of the word 'HITAISHI' viz. well wisher to urge that the two words 'HITAISHI' and 'HITACHI' are different. Trade Mark 'HITAISHI' of the respondents is well known in India and there is no chance of it being confused with the trade mark of the appellant.

(10) On May 24, 1992 learned Single Judge refused to grant an ad interim injunction restraining the respondents from using the trade mark 'HITAISHI' in Hindi script. Aggrieved by the order of the learned Single Judge, the appellant has filed the instant appeal under section 109(2) of the Act.

(11) We have heard the learned counsel on both sides and have also gone through the record.

(12) Learned counsel for the appellant submitted that the trade mark 'HITAISHI', adopted by the respondents, is phonetically similar to the registered trade mark 'HITACHI' of the appellant and the use of the former is likely to cause deception and confusion in the minds of the traders and the general public in as much as the goods of the respondent will be taken as the goods of the appellant. The use of the trade mark 'HITAISHI' by the respondent will also cause injury to the goodwill of the appellant as the goods of the respondent cannot match the quality of the goods of the appellant.

(13) Learned counsel for the respondent on the other hand submitted that the word 'HITAISHI' in Devnagari script is not similar to the word 'HITACHI' which is a chinese term and means the Rising sun. He submitted that not only the words representing the two trade marks have different meanings but there is also no similarity between the two as trade mark 'HITAISHI' is being used by the respondents in Hindi, while trade mark of the appellant is a chinese word written in English. He further submitted that the trade mark of the respondents is being associated with their goods. He further urged that the application of the respondents for registration of the trade mark 'HITAISHI' has been advertised in the trade mark journal and the proceedings for its registration are pending.As a further corollary to this submission, the learned counsel canvassed that the suit of the appellant should be stayed. Concluding his arguments, learned counsel urged that the learned single Judge was right in not granting ad interim injunction restraining the use of the trade mark 'HITAISHI' in Devnagari script.

(14) The question whether there is a similarity between the two trade marks has to be approached from the point of view of an average man with imperfect memory. Even though the two trade marks, one written in English and other written in Hindi, may not be visually similar because of the difference in scripts but undoubtedly there is a marked phonetic similarity. That similarity is not far to seek. The word 'HITACHI' and 'HITAISHI' are pronounced almost the same way and an average or ordinary purchaser will not be able to know the difference between the two when he goes to the market to buy the said product.This is likely to cause deception and confusion in his mind. It makes little difference that 'HITACHI' a word from a foreign languages may seem to be meaningless to most of the people while the meaning of the word 'HITAISHI' may be known to only a few in this vast and diverse country of many languages. Even though the meaning of the two words may be different and they are written in different scripts, there is no doubt that both the words have a striking phonetic similarity. What has to be seen is the phonetic impact of the words to a common and ordinary man, for whom both the words bear a close resemblance to the ears. It would be difficult for him to distinguish between the finer nuances of the sounds produced by the two words while articulating them. To the purchasers and traders these words would sound alike and they would also pronounce them in the same way. Applying the test of the ear we are of the view that there is real danger of deception and confusion being caused by the two marks in view of the similarity and affinity of sound between the words 'HITACHI' And 'HITAISHI'. To put it in the words of P.O. Lawrence, J. in Aktieselskabet Friea Chocolade FABRIK'S Application For A Trade Mark. (1924) 41 R.P.C.653 the confusion is likely to the ear. In that case an application of a Norwegian company for registration of trade mark 'Freia' for goods including chocolates was refused by the Comptroller General of Trade Marks on the ground that trade mark bore such a resemblance to the registered trade mark 'Fry' of J.S. Fry & Sons of Bristol in respect of the latter's chocolates as the same was likely to cause deception. On appeal, the High Court upheld the view of the Comptroller General despite the fact that two words 'Fry' and 'Freia' had different meanings. 'Freia' was the name of a Scandinavian Goddess and it is pronounced as 'Free-ee-aa' in Norway. Though the two words were not visually similar they were held to be similar phonetically as the word 'Freia' when used in England would be pronounced as if it was spelt 'F-r-y-e-r'. Again in such cases the test is whether the phonetic similarity is such that if an order be placed verbally either personally or on telephone, there would be confusion between the two words so that the purchaser may receive the product of one when he had actually asked for the product of the other (See: In the matter of an application by Magdalena Securities Ltd. for Registration of Trade Mark 1931 48 Rpc 477.Applying the test to the present case the phonetic similarity between the two trade marks is of such an order that there would be confusion leading the purchasers/consumers to receive the product of the respondents when they may have asked for the product of the appellant.

(15) In J.C.ENo.1td. Vs . Vishnu Chemical Co. : AIR1941Bom3 the plaintiff was the prior user of the trade mark 'Fruit Salt' relating to saline manufactured by it. The complaint of the plaintiff in a passing off action against the defendant was that it had been selling saline under the name 'Falaxar' which was Marathi equivalent of the plaintiff's mark 'Fruit Salt'. It was held by the Bombay High Court that if traders attempt to deceive by misspelling or distorting any word in any shape or form it being obvious what word they are in fact intending to indicate, they must be deemed to be in fact attempting to deceive. This test was required to be applied not only to the use of words in the same language, but to the use of words in any other language as well. In this regard it was observed as follows:

'...IF traders attempt to deceive by mis-spelling or distorting any word in any shape or form, it being obvious what word they are in fact intending to indicate, they appear to me to fall within the principle to which Lord Halsbury was drawing attention, and they are in fact attempting to deceive. This is, in my judgment, the real test which has got to be applied not only to the use of words in the same language, but to the use of words in any other language which may be a colourable imitation of words in the language from which the evidence may establish that they were in fact taken. If the court comes to the conclusion that the use of the words in a foreign language was an intention to deceive and in fact was likely to deceive, then in my opinion the court ought to restrain the use of such words'.

(16) In K.R.Chinna Krishna Chettiar Vs . Sri Ambal & Co. : [1970]1SCR290 it was held by the Supreme Court that the ocular comparison between the two competing trade marks is not always a decisive test. The resemblance between the two marks must be considered with regard to the ear as well as to the eye. In that case 'Ambal and 'Andal' were the essential and distinctive features of the two competing marks in respect of Snuff. It was held by the Supreme Court that the proposed trade mark for which the word 'Andal' was the distinguishing feature cannot be permitted to be registered as the same was deceptively similar in sound to the word 'Ambal' which formed part of the registered trade mark of the respondent in that case. In this regard the Supreme Court observed as follows:

'8.NOWthe words 'Sri Ambal' form part of trade mark No.126808 and are the whole of trade mark No.146291. There can be no doubt that the word 'Ambal' is an essential feature of the trade marks. The common 'Sri' is the subsidiary part. Of the two words 'ambal' is the more distinctive and fixes itself in the recollection of an average buyer with imperfect recollection. 9.The vital question in issue is whether, if the appellant's mark is used in a normal and fair manner in connection with the snuff and if similarly fair and normal user is assumed of the existing registered marks will there be such a likelihood of deception that the mark ought not to be allowed to be registered? (See in the matter of Broadhead's Application for registration of a trade mark, 1950 67 Rpc 209). It is for the court to decide the question on a comparison of the competing marks as a whole and their distinctive and essential features. We have no doubt in our mind that if the proposed mark is used in a normal and fair manner the mark would come to be known by its distinguishing feature 'Andal'. There is a striking similarity and affinity of sound between the words 'Andal' and 'Ambal'. Giving due weight to the judgment of the Registrar and bearing in mind the conclusions of the learned Single Judge and the Divisional Bench, we are satisfied that there is real danger of confusion between the two marks.'

(17) In V.S.Subbiah Nadar,Administrator of Estate of T.P.Sokkalal Ram Sait v. E.P.Kumaraval Nadar (deceased) and others Air 1946 Pc 109 the Privy council was dealing with the question of infringement of a trade mark. In that case the plaintiff and the defendant, who were manufacturers of beedies belonged to South India. The registered trade mark of the plaintiff in that case consisted of the device of his portrait in a Marathi dress and head dress surrounded by rays of light and other distinctive features. Similarly the trade mark of the defendant consisted of the device of his portrait in a dress similar to the one worn by the plaintiff in the portrait surrounded by features of his trade mark. The trade mark of the defendant was not registered. It was held that the effect on the minds of the general public dealing in beedies would be to confuse the beedies sold under the mark and labels of the defendants with those sold under the plaintiff's trade mark. It was further held that the trade mark of the defendant was calculated to lead to confusion and deception and the similarities were so close as to make it impossible to suppose that such marks were devised independently of each other. Accordingly the Privy council held the plaintiff-appellant was entitled to an injunction to restrain infringement of his trade mark. In this regard the Privy council observed as follows:

'15.THEIRLordships have no hesitation in holding that the general effect on the mind of anybody dealing in beedies would be to confuse the beedies sold under the marks and labels of the defendants with those sold under the plaintiff's trade mark, and both courts in Ceylon appear to have been of that view. In their Lordships' opinion the marks are plainly calculated to lead to confusion and deception and the similarities are so close as to make it impossible to suppose that such marks were devised independently of each other. in the absence of any evidence of a common origin, the conclusion must be that one party copied the mark of the other'.

(18) The courts can not allow a trader to the use a trade mark which bears a close or deceptive similarity, affinity and proximity in sound and/or looks with the trade marks belonging to others, whether by prior use or prior registration, in order to maintain, purity and morality in trade and to protect the unwary customer from being misled in buying a product which he did not intend to buy. Infringer or plagiarist of a trade mark cannot be allowed to thrive on somebodyelse's reputation and goodwill. This view was also echoed by one of us in Tata Iron and Steel Co. & others Vs . M/s.Mahavir Steels & others : 47(1992)DLT412 where the offending mark 'FISCO' was held to be deceptively similar to 'TISCO'. While holding so it was held as follows:

'15..........There is a growing tendency to copy the trade marks to cash upon some on else's business reputation. The piraetors of trade marks are like parasites clinging to others for their growth. Imitators of trade marks have the sole object of diverting the business of others. This tendency must be curbed in the interest of the trade and the consumers. '

(19) Learned counsel for the appellant, however, relied upon the decision of the Supreme Court in J.R.Kapoor v. Micronix India 1994(2) Alr 274 where the electronic goods manufactured by the appellant under the trade mark 'MICROTEL' with logo 'M' were allowed to be traded in that name even when electronic goods of respondent were being manufactured under the trade name 'MICRONIX' with logo 'IM'. On facts this decision has no application to the present case. The appellant in that case was one of the partners of the firm M/s.Micronix India Along with the respondent-plaintiff. The firm was manufacturing and selling electrical and electronic products,apparatus and instruments since September 21, 1977 under the registered trade mark 'MICRONIX' and logo 'IM' . On dissolution of the partnership the said trade mark was allotted to the respondent-plaintiff.The appellant defendant thereafter started the manufacture of various electrical and electronic apparatus under the trade name 'MICROTEL' and logo 'M'. The respondent-plaintiff filed a suit for permanent injunction against the use of the trade mark 'MICROTEL' And Logo 'M' under which the product of the defendant-appellant was being sold. The single Judge of the High Court granted the injunction and on appeal the Division Bench dismissed the appeal summarily filed against the same. However,the appellant-defendant successfully challenged the order of the High Court on the ground that the product which the appellant was manufacturing was based on microchip technology and those who were familiar with the use of electronic goods knew fully well and were not likely to be misguided or confused merely by the prefix 'micro' in the trade name. It was held by the Supreme Court that the word 'Micro' is a common or general name descriptive of the products which are sold or of the technology by which the products are manufactured, and the users of such products were thereforee, not likely to be misguided or confused. Besides no one can have the monopoly of word which is descriptive of the technology which is used for the production of the goods. The only question thereforee in that case was whether the words 'tel' and 'Mix' in the trade names of the parties were deceptive for the buyers and they were likely to be misguided and confused in purchasing the product of one for the other. The Supreme Court came to the conclusion that phonetically the words were totally dissimilar and were not going to create any confusion in the minds of the users. On facts it is clear that there is no similarity between that case and the case in hand.

(20) The argument of the learned counsel for the respondent is that since the application of the respondent for registration of his trade mark on the basis of concurrent user is pending with the Deputy Registrar Trade Marks, who will consider the question whether the trade mark of the respondent is liable to be registered or not under Section 12(3) of the Act, it should be allowed to use the same and further proceedings in the suit should be stayed.

(21) It is well settled that under Section 28 of the Act the registration of a trade mark confers on the proprietor thereof exclusive right to use the same in relation to the goods in respect of which he has secured registration. Stated differently, the others are excluded from the use of the trade mark. This right is over and above the right of the proprietor of the trade mark under Section 12(1) of the Act to object to another person seeking registration of a trade mark which is similar or deceptively similar to his mark which is already registered in respect of the goods of the same description. A similar question was considered by a Division Bench of this court in Metro Playing Card Co. Vs . Wazir Chand Kapoor : AIR1972Delhi248 , in which it was held as follows:

'7.No doubt registration may be granted for concurrent user as provided by the law but till registration is granted there can be no doubt that the respondent's trade mark is infringed by the appellant and the statutory right which the respondent has under Section 28 of the Act is violated.In as much as registration of the trade mark is prima facie evidence of its validity and the appellant has not challenged the validity of the registration of the respondent's trade mark it is not open to the appellant at this stage, to plead Section 12(3) of the Act.'

(22) Thus the respondent cannot legitimately claim that since he has filed an application for registration of trade mark 'HITAISHI' he should be allowed to use the same till that application is decided and the proceedings in the suit be stayed. If the contention of the appellant is accepted Section 28 of the Act will become redundant and otiose. Learned counsel for the respondent however, relied upon the decision of D.Adinarayana Setty v. Brooke Bond Tea of India Ltd. Air 1960 Mys 142 in which it was observed that the court should stay further proceedings in a suit for infringement of the trade mark at the instance of a defendant who claims honest and concurrent user of the trade mark which may stand registered in favor of a plaintiff, so that the former is able to make an application for registration of trade mark on the strength of honest and concurrent user. It may be pointed out that we are bound by the decision of this court in Metro Playing Card Co. (Supra) and in any event we express our inability to accept the view of their Lordships of Mysore High Court in D.Adinaryana Setty (Supra) as we are of the opinion that the mere filing of an application for registration of a trade does not justify a party to infringe the registered trade mark of another on the ground of concurrent user of the same or similar mark as otherwise Section 28 of the Act would be rendered nugatory.

(23) Learned counsel for the respondent cited a decision of a learned single Judge of this court in Smt Kela Devi v. Parle Exports in is No.2510/91 in Suit No. 1263 of 1971, decided on July 24,1992, where the competing marks were 'CITRA' and 'CITRO' International, it was held, taking into consideration various factors, that the beverage launched by the defendant under the trade mark 'CITRA' about two weeks after launching of the product of the plaintiff under the trade name Citro International was not likely to cause confusion for the following reasons:

1.THEbeverage 'Citra' was launched at Chandigarh and Kanpur and subsequently in other parts of India,whereas the product of the plaintiff was confined to a very small territory in the city of Jodhpur, Rajasthan. 2. A visual comparison of two bottles in which the products were being sold showed that the plaintiff's product was sold under the name Citro International with a logo printed on the bottle as well as on the crown cap whereas the defendant's product was sold under the trade name 'CITRA Super Cooler' printed on both sides of the bottle; 3.Citro International was bottled in a white bottle whereas the Citra was bottled in a green bottle; 4.Logo of the plaintiff's product was entirely different from that of the logo of the defendant's product; 5.Citra was cloudy whereas Citro was clear and colourless beverage.

(24) Besides the turnover of the defendant in respect of sale of Citra was much more than the turnover of the plaintiff for sale of Citro International. It was in view of these peculiar features of the case that it was held that the two marks were not likely to cause deception & confusion. This decision is also of no avail to the respondent.

(25) Learned counsel for the respondent relied upon another decision of this court in The Fairdeal Corporation (Pvt) Ltd v. Vijay Pharmaceuticals 1985 Ptc 80. This was a case where the plaintiff was the registered proprietor of trade mark 'Electral' in respect of pediatric medicinal preparation, while for the same goods the defendant had adopted trade mark 'Vijay Electrolyte'. Interim injunction was refused to the plaintiff for restraining the defendant from using the trade mark Vijay Electrolyte on the ground of delay on the part of the plaintiff in bringing the action against the defendant. It was found that the plaintiff had learnt about the use of the trade mark Vijay Electrolyte by the defendant in 1981 but it had brought an action for infringement only in the year 1984. Besides it was noticed that the medicine will be bought only on the basis of the prescription from a doctor. Neither the doctor nor the chemist would be decieved. In this regard it was held as follows:

'6.Ido not think Mr.Anoop Singh is quite right. For one thing he himself did not press that the defendant should not use the mark Vijay ELECTROYTE. His only attack was on the user by the defendant of the sacher similar to that of the plaintiff. Rather I would say that Mr.Krishan Kumar is right when he says that such type of medicine as marketed by both the parties, is not something that any person can go to a chemist and buy it. Either the person will get a prescription from the doctor or he will go to the chemist to buy medicine for the ailment. I do not think either the doctor or the chemist would be deceived. I may also notice that while the price of the product of defendant, as printed on the sachet, is Rs.6.00 that of the plaintiff is little less. It is nobody's case that defendant is marketing a sub standard product. He has filed on record a copy of the license issued to it by the Food and Drugs Controller, Madhya Pradesh, for the manufacture of product in question. This certificate is dated 24th November,1979. 8.In this view of the matter, I am of the opinion that the temporary injunction granted by me should be vacated. It is not that once a court finds that the plaintiff has a prima facie case, the temporary injunction should be granted. The plaintiff, in this case, was aware of the use of the alleged offending mark by the defendant as far back in February 1981. It kept quite all these years. Once it has come to the court, it cannot get temporary injunction just as a matter of course to the detriment of the defendant. By its conduct the plaintiff led the defendant to believe that defendant could market its product in the sachet, which now plaintiff claims, offends its registered mark. Balance of convenience appears to be in favor of the defendant as it is continuously selling its product in sachet like Annexure X since 1980. Then, there is the question of the conduct of the plaintiff in making averments in the plaint as well as in the application which was obviously false'.

9.INthe present case, prima facie there is nothing to show that the apellant was aware of the fact that the respondent was carrying on the business under the trade name 'HITAISHI' from the year 1984. The case of the appellant is that it came to know about the activities of the respondent in selling the goods under the trade name 'HITAISHI' only in the year 1993 and immediately thereafter a notice was served on the respondent through counsel to desist and cease from selling the goods under the trade name 'HITAISHI'. On failure to receive a reply the appellant, it is asserted, filed the instant suit. The plea of concurrent user is of no avail if the plaintiff was not aware of the infringement. Learned counsel for the respondent cited yet another decision of the single Judge of this court in Shri Gopal Engg. & Chemical Works v. M/s.POMX Laboratory Air 1992 Del 302 whereby the application for interim injunction restraining the infringement of trade mark was refused on the ground of unexplained delay of 14 months in filing the suit for infringement of the trade mark. In that matter there was a strong prima facie case to show that the defendant had been openly and concurrently using the offensive trade mark since long while the action for infringement was brought only in the year 1992 even though the plaintiff acquired the knowledge of the use of the impugned trade mark in June,1990. Thus the plaintiff did not take any action against the defendants for 14 months and also furnished no Explanationn for the same. It was in these circumstances that the interim injunction was refused. It was in view of the peculiar facts of that case that the injunction was refused on the ground of delay in bringing action for infringement of trade mark.

(26) In view of the aforesaid discussion, the appeal succeeds and the order of the learned single Judge refusing to grant ad interim injunction restraining the respondent from using the trade mark 'HITAISHI' in Hindi/Devnagari script is set aside. Accordingly we also restrain the respondents from using the mark 'HITAISHI' in Hindi/Devnagari Script. There will be no order as to costs.