judgment- (1) This is a petition by way of appeal filed by consolidated Foods Corporation incorporated under the laws of the State of Mary land in the United States of America and having its principal place of business at San Francisco, California, against the order and judgment of Mr. C.D.V. Raman, the Joint Registrar of Trade Marks, Bombay, dismissing its oppositions to the three applications being application No. 178155, application No. 178158 and application No. 178159 filed by the respondents Messrs. Brandon and Co. Private Limited for registration of the mark ""Monarch"" in respect of certain fruits and vegetables preparations. (2) On 23rd January 1957, the respondent company filed the three applications aforesaid for registration of the mark consisting of the word ""Monarch"" (per se) in classes 29, 30 and 32 respectively. Application No. 178155 was in respect of ""preserved, dried, and cooked fruits and vegetables; jellies and jams, preserves and pickles, "" all being goods included in Class 29: Application No. 178158 was in respect of ""sauces, spices, cury powders, papads (being cereal preparations) and condiments"" and Application No. 178159 was in respect of ""syrups (not included in other classes ) and other preparations for making beverages; and other non-alcoholic drinks:"" These applications were advertised as accepted for registration in the Trade Mark Journal No. 199 dated 16th September , 1957. (3) The petitioner corporation filed separate notices of opposition to each of these applications, being opposition Nos. 3959, 3958 and 3960 respectively. The grounds of opposition set out in those notices were the same and they were as follows: ""a) That by reason of the use of the word ""Monarch"" by the opponents (the petitioners) prior to 1951, the use of the said was likely to deceive or cause confusion, and, therefore, its registration would be contrary to the provisions of Section II (a) of the Trade and Merchandise Marks Act, 1958: b) That the adoption and use of proposed mark by the respondents was not bona fide. c) That the respondents were not the proprietors of the mark; d) That the respondents mark was disentitled to protection in a Court of Justice as its use was contrary to law; and e) That in the exercise of the discretion of the Registrar, the registration of the mark should be refused."" (4) The respondent company by its counter statement denied the allegations made by the petitioner corporation in its notices of opposition and submitted that it had honestly adopted the word ""Monarch"" as its trade mark and it had been carrying on business under the said trade mark on a large and extensive scale since 1951. The respondent company specifically denied in the counter statement that the petitioner corporation had ever sold any goods bearing the mark ""Monarch"" in India and submitted that question of confusion or deception therefore did not arise. (5) In support of the application filed by the respondent company, affidavits were filed by Mr. F.W. Audsley, a director of the respondent company and by some traders and customers. One affidavit by Shri Autar Krishna Sharma, the managing director of Messrs. Kipre(India) Private Ltd. was also filed. On the other hand, in support of the opposition filed by the petitioner corporation, affidavits of Mr. Jamie Phiroz Birdi, the representative in India of the petitioner corporation, Mr. Richard G.Grant, Vice-President and a Principal Officer of the petitioner corporation and Mr. Stacey H. Gifford, Vice-President and Secretary of the petitioner corporation were filed. Besides these affidavits, four affidavits of customers were also filed. A further affidavit was also filed by Mr. Jamie Phiroz Birdi. (6) As the parties concerned and the issues involved in all these application and oppositions were the same, all of them were consolidated and heard together by the Joint Registrar of Trade Marks. At the hearing, evidence was also given by Rustom Merwan Rustom on behalf of the petitioner, corporations and by Mr. F.W. Audsley on behalf of the respondent company. After considering the affidavits and the evidence as aforesaid and also several documents which were exhibited in the case, the Joint Registrar of Trade Marks dismissed the petitioner corporations oppositions are directed the respondent companys applications to proceed subject to certain limitations specified in his order dated 18th March, 1960. It is against this order that the petitioner corporation has filed the present petition by way of appeal to this Court. It is against this order that the petitioner corporation has filed the present petition by way of appeal to this Court. Before setting out contentions raised on behalf of the petitioner corporation at the hearing of this petition, it is necessary to relate briefly the circumstances which led to the present proceedings. (7) It appears that some time in 1852 the petitioner corporations predecessors-in-title adopted the word ""Monarch"" as their trade mark in respect of canned, bottled and packaged food products and marketed their products under that trade mark ever since that date continuously and extensively. It further appears that the trade mark ""Monarch"" has been registered in the name of the petitioner corporation and its associates in about 20 countries of the world including the United States of America, Great Britain and Canada in respect of, inter alia, canned, bottled and packaged food products. The petitioner corporation contended that the trade mark ""Monarch"" was thus exclusively associated by the trade and the public world over with the goods emanating from itself. Besides, it was the case of the petitioner corporation that its food products under that trade mark were being very widely and extensively advertised throughout the world through American Magazines such as ""Life, Saturday Evening Post"", ""Country Gentleman and others which were having a large circulation in this country. (8) According to the petitioner corporation, ..... food products bearing the trade mark ""Monarch"" were for the first time imported into this country in or about 1935. Thereafter they could not be imported during the second world war, but, again, sometime in 1947 imports were resumed until import restrictions were imposed in or about 1950. According to the petitioner corporation, such imports into this country as were permissible under the import regulations for the time being in force were continued and that between April 1955, and January, 1957 the imports of its products into this country under the trade mark ""Monarch"" were of the retail value of over Rs. 1,50,000/-. (9) On 23rd January, 1957, the respondents company made the aforesaid three applications for the registration of the mark consisting of the word ""Monarch"" (per se) in Classes 29, 30, and 32 respectively. 1,50,000/-. (9) On 23rd January, 1957, the respondents company made the aforesaid three applications for the registration of the mark consisting of the word ""Monarch"" (per se) in Classes 29, 30, and 32 respectively. In these applications, the respondent company had clearly stated that it had started using the trade mark ""Monarch"" in respect of its food products some time in the year 1951 and its claim for registration of the mark ""Monarch"" was sought to be sustained by the allegation that the mark had attained a distinctive character in reference to its products on account of large sales thereof between the years 1952 and date of those applications. As sated above, the Joint Registrar of Trade Marks dismissed the oppositions filed by the petitioner corporation to the application made by the respondent company and directed registration of the mark ""Monarch"" on each of those applications subject to certain limitations. (10) In support of this petition, Mr. Shavaksha, the learned counsel for the petitioner corporation, contended that the petitioner corporation itself was the proprietor of the mark ""Monarch"" even so far as this country was concerned, because the petitioner corporation was the first to import and sell its products with that mark in this country long prior to the respondent company using that mark in respect of its similar products and that, therefore, under Section 18 of the Trade and Merchandise Marks Act, 1958, the Registrar should have, in exercise of his discretion, refused to order registration of that mark in favour of, and in the name of, the respondent company. It is true that this contention was not raised before the Joint Registrar of Trade Marks. That the respondent company was not the proprietor of the mark ""Monarch"" was urged by the petitioner corporation before the Joint Registrar of trade Marks, not because the petitioner corporation had already been the proprietor of that mark in this country by reason of imports of its products long prior to 1951, but in view of the fact that the name of Messrs. Kipre and Co. Private Limited appeared on the labels affixed on the products marketed by the respondent company suggesting that Messrs. Kipre and Co. Private Limited. were the proprietors of the mark and not the respondent company. This contention was also raised by Mr. Kipre and Co. Private Limited appeared on the labels affixed on the products marketed by the respondent company suggesting that Messrs. Kipre and Co. Private Limited. were the proprietors of the mark and not the respondent company. This contention was also raised by Mr. Shavaksha before me and I will deal with it as well in course of my judgment, but so far as the first contention raised by Mr. Shavaksha is concerned, although it was not taken before the Joint Registrar of Trade Marks, that such a contention could be raised by the petitioner corporation for the first time in appeal before me under the provisions of the Trade and Merchandise Marks Act, 1958. Accordingly, I allowed Mr.Shavaksha to urge that contention before me. (11) In support of this contention, Mr. Shavaksha urged that on the affidavits filed on behalf of the petitioner corporation and the evidence led on its behalf, it was clear that the petitioner corporation had imported its products with the mark ""Monarch"" affixed to them into this country for the first time, in 1935 thereafter, between the years 1947 and 1950 and then from 1955 onwards upto the date of the applications filed by the respondent company and even thereafter. In this connection, he invited my attention to the affidavit of Mr. Richard Grant which states in paragraph 7 as follows : - ""The food products of the opponents (petitioner corporation) bearing the trade mark ""Monarach"" were imported into India for the first time in 1935"", to the affidavit of Rustom Merwan Rustom, which states in paragraph 3 as follows : - ""To my personal knowledge, the foodstuffs bearing the trade mark ""Monarch"" have been imported into India and marketed into India since at lest 1935. I have always associated the trade mark ""Monarch"" in respect of foodstuffs exclusively with the goods of opponents (petitioner corporation) or their predecessors manufacture and these goods have acquired a unique reputation in India for their superior quality"", and to the affidavit of Jehangir Boman Irani who had started off as an assistant with Shah and Co. in 1935 which in paragraph 2 thereof states as follows:- ""I have now been in the Provision Trade for over twenty years and I can say that I have known the ""Monarch"" brand of Food products of American Manufacture from the very beginning. in 1935 which in paragraph 2 thereof states as follows:- ""I have now been in the Provision Trade for over twenty years and I can say that I have known the ""Monarch"" brand of Food products of American Manufacture from the very beginning. This brand of American food products is of the highest quality and I buy them for my store without any hesitation"". For the purpose of showing that the petitioner corporations food products were imported into this country between the years 1947-50, Mr. Shavaksha once again invited my attention to the affidavit of Rustom who has been the manager of Messrs. Shah and Co., ever since 1912, which in paragraph 4 thereof states as follows :- ""Imports of goods of the opponents (petitioner corporation) were made before and after the second world war. Imports after the second world war were resumed some time in 1947 until about 1950 when restriction were reimposed. Although imports virtually stopped for some years after 1950, the goods of the opponents (petitioner corporation) bearing the trade mark ""Monarch"" which were already imported between 1947 and 1950 continued to be in the market till long thereafter. It was possibly for these goods to remain in the market so long, as the quality of these goods remain unaffected for a number of years."" Mr. Shavaksha also invited my attention to the evidence of this Rustom in course of which the witness produced an invoice book in which details of the original invoices were entered and showed entries under the date 1st July 1947 giving the particulars of the invoice relating to foodstuffs bearing the mark ""Monarch"". The witness also produced his bank pass book in which under date 28th July 1947 an amount of Rs. 4328/- being the rupee equivalent of 1895 dollars which was the value of the aforesaid goods as well as some other goods, was shown to have been paid, Mr. S.B. Shah, the learned counsel for the respondent company, however, pointed out that the food products shown in those entries were consigned, not by the petitioner corporation or any of its predecessors-in-title named in the affidavit of Mr.Stacey H. Gifford, but by the California Produce Company which did not seem to have had any relation either with the petitioner corporation or with any of its predecessor-in-title. Accordingly, he submitted that the evidence of the alleged import of food-stuffs bearing the mark ""Monarch"" in the year 1947 as deposed to by Rustom Merwan could not be of any assistance to the petitioner corporation for showing that any of its food products bearing the mark ""Monarch"" was imported into this country in the year 1947. It appears, however, that no question in this behalf was put to Rustom Merwan Rustom while he was giving evidence before the Joint Registrar of Trade Marks. For all one knows, if an explanation was asked for from that witness in this behalf he might probably have said that California Produce Company which consigned those food-stuffs of Messrs. Shah and Co. in 1947 have purchased those products from the petitioner corporation or from any of its predecessors-in-title at the instance of shah and Co., and consigned them to Shah and Co., along with some other goods. In the absence of any such question being put to the witness and in the absence of any evidence to show that any other company in America was using the mark ""Monarch"" on any such food products as were being manufactured and dealt in by the petitioner corporation and its predecessors-in-title, it may be reasonable to hold that the food products bearing the mark ""Monarch"" which were received by Shah and Co. in 1947 were the products having their origin either with the petitioner corporation or with any of its predecessors-in-title. (12) Mr. Shavaksha then referred to the affidavit of K.S. Cambatta, the Managing Director of Messrs. Shiavax C. Cambatta and Co. Private Ltd., which in paragraphs 3 and 4 thereof states as follows :- ""3. My firm were agents of the opponents(petitioner corporation) in respect of their foods products including those sold under the trade mark ""Monarch"" during the years 1947 to 1955. 4. During 1949 our said firm had imported food products bearing the trade mark ""Monarch"" of the opponents (petitioner corporation). Hereto annexed and marked Ex.A is a photo copy of an invoice dated 30-7-1949 and Ex. B the original bill of lading in respect of certain consignments of ""Monarch"" food-stuffs imported through my firm into India."" The invoice which was annexed to the affidavit shows that the goods mentioned therein bearing the mark ""Monarch"" were sold by Reid Murdoch of Chicago to Amersia Associates, Inc. of California as agents for Messrs. B the original bill of lading in respect of certain consignments of ""Monarch"" food-stuffs imported through my firm into India."" The invoice which was annexed to the affidavit shows that the goods mentioned therein bearing the mark ""Monarch"" were sold by Reid Murdoch of Chicago to Amersia Associates, Inc. of California as agents for Messrs. S.C.Cambatta and Co. The value of the goods shown in the invoice is 479 dollars 50 cents exclusive of costs of wood boxes and straping, ocean freight and other charges. The Bill of Lading is also annexed to the affidavit and it shows Messrs. Reid Murdoch as the shippers and ""order of Reid Murdoch"" as the consignee. It also shows that Arrival Notice was to be addressed to Amersia Assoc. C/o S.C.Cambatta and Co. Cambatta Bldg., 42, Queens Road, Fort Bombay India. In the column headed ""leading marks and numbers"" it is stated as follows : - ""Amersia Assoc. to be held in bond c/o S.C.Cambata and Co. Bombay, India, Made in the U.S.A."" Now, these were apparently the marks on the packages containing the goods and on the basis of this description of the marks and particulars, Mr. Shah. the learned counsel for the respondent company contended that the goods were to be held in bond, that accordingly, it could not be presumed that the gods were actually received by S.C. Cambatta and Co. and that there was no evidence to show that the goods covered by the invoice were at all put on the market for sale in this country. In as much as, however, it seems to me clear that the consignees were Messrs. Reid Mordoch and Amerasia Associates Inc. were only the agents for M/s. S.C. Cambatta and Co. the goods covered by the bill of lading were undoubtedly to be held in bona for and on account of the consignee until they were paid for and taken delivery of by Messrs. S.C. Cambatta and Co. Mr. Cambatta in paragraph 4 of his affidavit has clearly stated, that during the year 1949 his firm had imported food products bearing the trade mark ""Monarch"" of the petitioner corporation and it was in connection with that statement that he annexed to his affidavit a photo copy of the invoice and also the original bill of lading. Mr. Cambatta in paragraph 4 of his affidavit has clearly stated, that during the year 1949 his firm had imported food products bearing the trade mark ""Monarch"" of the petitioner corporation and it was in connection with that statement that he annexed to his affidavit a photo copy of the invoice and also the original bill of lading. This statement accordingly does show that the goods covered by the invoice and the bill of lading did not remain on the ship, but that they were in fact imported and taken delivery of by Messrs. S.C. Cambatta and Co. Further, it may be noted that among goods that were imported by Messrs. S.C. Cambatta and Co. under that invoice were 20 wood boxes each containing ""Monarch"" 24/1402 Catsup"" and the number of units in each of the boxes was 40. This product consists of a tamato preparation and it may be observed that as many as 800 bottles of this preparation were imported by Messrs. S.C. Cambatta and Co. on this one occasion along with other ""Monarch"" products. This large number of bottles cannot be said to have been imported by Messrs. S.C. Cambatta and Co. private Ltd. which is a private limited company only for the purpose of personal consumption by the directors and the members of the company. It is undoubtedly true that Mr. Cambatta has not in his affidavit said in terms that the goods imported by them under that invoice were actually put for sale in the market or that they had sold them to the members of the public. Nevertheless, looking to the fact that this company was dealing in food products at the relevant time and also doing business as caterers, it is reasonable to hold that the several types of food products imported by that company were intended for sale to the members of the public and were in fact sold to them in due course of business. (13) Mr. Shavaksha then invited my attention to Mr. Birdis affidavit for the purpose of showing a large amount of imports of the petitioner corporations products in this country during the short period between 11th April, 1955 and 1st January, 1957 amounting to ...13,283,09 as against the respondent companys sales of its products amounting to Rs. (13) Mr. Shavaksha then invited my attention to Mr. Birdis affidavit for the purpose of showing a large amount of imports of the petitioner corporations products in this country during the short period between 11th April, 1955 and 1st January, 1957 amounting to ...13,283,09 as against the respondent companys sales of its products amounting to Rs. 1,97,765/- between the period 30-6-52 and 31-12-56 and contended that on a proper analysis of the sales by the petitioner corporation and those by the respondent company and making allowance for the fact as admitted by Mr. Audsley that the sales by the respondent company also included the sales of products for and on behalf of Kipre and Co. Private Ltd., the petitioner corporations reputation in the Indian market in respect of the goods manufactured by it and marketed under the mark ""Monarch"" was far greater than that in respect of was on the basis of this affidavit that Mr. Shavaksha contended that apart from the petitioner corporation having been the first to introduce the mark ""Monarch"" into this country in respect of food products, the mark had acquired sufficient distinctiveness in respect to its food products so as to disentitle the respondent company to apply for registration of that mark in respect of the food products sold by it. (14) The first question which I have now to consider is as to whether the petitioner corporation can be said to be the proprietor of the mark ""Monarch"" in reference to its food products so far as this country is concerned in view of the few imports of its products which have been proved to have been made on the evidence in this case prior to 1951 when according to the respondent company the mark ""Monarch"" was for the first time adopted by it in reference to the food products sold by it. Mr. Shavaksha contended that in order to acquire the right to a mark as a trade mark it was not necessary that the mark should have been used for any particular length of time or to any particular extent. According to him, it was enough in order to acquire such a right that the mark was used by the petitioner corporation in this country on its products for the purpose of indicating that they were its products and of nobody else. On the other hand, both Mr. According to him, it was enough in order to acquire such a right that the mark was used by the petitioner corporation in this country on its products for the purpose of indicating that they were its products and of nobody else. On the other hand, both Mr. S.B. Shah, the learned counsel for the respondent company, and Mr. Sastri, the learned counsel for the Registrar of Trade Marks, urged that property in a trade mark could be acquired only by such user thereof as would create a reputation among the members of the public in respect of the products to which it has been affixed. In other words, they urged that a single or sporatic import of the petitioner corporations products into this country bearing the mark ""Monarch"" was not enough to enable the petitioner corporation to acquire any property in the mark ""Monarch"" so far as this country was concerned. It was also urged by these counsel, that in law there was nothing like property in a trade mark, that a trade mark was only a part and parcel of the goodwill of a particular business and that, therefore, there could only be property in the good-will which could only be acquired by large sales of ones products extending over a period of time. (15) Before dealing with these contentions, however, it may be convenient to notice some of the provisions of the Trade and Merchandise Marks Act, 1958 bearing on the questions that I have to decide. The expressions ""mark"" is defined in clause (j) of Section 2 of the Act as including a device, brand, heading, label, ticket, name, signature, word, letter or numeral or any combination thereof. The expression trade mark"" is defined in clause (v) of section 2 and it means: - (I) in relation to the other provisions of the Act, a mark used or proposed to be used in relation to goods for the purpose of indicating or so as to indicate a connection in the course of trade between the goods and some person having the right, either as proprietor or as registered user, to use the mark whether with or without any indication of the identity of that person, and includes a certification trade mark registered as such under the provisions of Chapter VIII. Then section 9 prescribes the kinds of trade marks which may be registered in Parts A and B of the register of trade marks which is provided for in section 6 of the Act. This section provides as follows:- ""(I) A trade mark shall not be registered in Part A of the register unless it contains or consists of at least one of the following essential particulars, namely : - (a) the name of a company, individual or firm represented in a special or particular manner; (b) the signature of the applicant for registration or some predecessor in his business; (c) one or more invented words; (d) one or more words having no direct reference to the character or quality of goods and not being, according to its ordinary signification, a geographical name or a surname or a personal name or any common abbreviation thereof or the name of a sect, caste or tribe in India; (e) an other distinctive mark. 2) A name, signature or word, other than such as fall within the descriptions in clauses (a), (b), (c) and (d) of sub-section (I) shall not be registrable in Part A of the register except upon evidence of its distinctiveness. 3) For the purposes of this Act, the expression ""distinctive"" in relation to the goods in respect of which a trade mark is proposed to be registered, means adapted to distinguish goods with which the proprietor of the trade mark is or may be connected in the course of trade from goods in the case of which no such connection subsists either ""generally, or, where the trade mark is proposed to be registered subject to limitations, in relation to use within the extent of the registration"". Sub-section (5) of this section provides as follows :- ""In determining whether a trade mark is distinctive or is capable of distinguishing as aforesaid the tribunal may have regard to the extent to which (a) a trade mark is inherently distinctive or is inherently capable of distinguishing as aforesaid; and (b) by reason of the use of the trade mark or of any other circumstances, the trade mark is in fact so adapted to distinguish or is in fact capable of distinguishing as aforesaid."" So far as the provisions of this section are concerned, it was conceded at the Bar that the word ""Monarch"" involved in this case fell under clause (d) of sub-section (I) and that it was ""distinctive"" per se. Accordingly, no evidence of its distinctiveness would be necessary as contemplated by sub-section (2) of that section for the purpose of its registration as a trade mark. The next important provision to note is the one contained in section II of the Act. That section sets out the marks in respect of which registration is prohibited. It says:- ""A mark - (a) the use of which would be likely to deceive or cause confusion; or (b) the use of which would be contrary to any law for the time being in force; or (c) which comprises or contains scandalous or obscene matter; or (d) which comprises or contains any matter likely to hurt the religious susceptibilities of any class or section of the citizens of India; or (e) which would otherwise be disentitled to protection in a court; shall not be registered as trade mark"". It may be mentioned here that one of the contentions raised by Mr. Shavaksha, as stated in the earlier part of this judgment, falls under clause(a) of this section. There is another contention which Mr. Shavaksha has raised under clause(e) of this section which I will set out and deal with hereafter. The next important provision of the Act to be noted in connection with this case is contained in section 18 of the Act which deals with registration of trade marks. There is another contention which Mr. Shavaksha has raised under clause(e) of this section which I will set out and deal with hereafter. The next important provision of the Act to be noted in connection with this case is contained in section 18 of the Act which deals with registration of trade marks. That section runs as follows: ""(I) Any person claiming to be the proprietor of a trade mark used or proposed to be used by him, who is desirous of registering it, shall apply in writing to the Registrar in the prescribed manner for the registration of his trade mark either in Part A or in Part B of the register."" It is not necessary for the purpose of this case to set out the other provisions of this section. Provisions of section 27 of the Act, however, which are equally important, must also, be noted. It says : ""(I) No person shall be entitled to institute any proceeding to prevent, or to recover damages for, the infringement of an unregistered trade mark. (2) Nothing in this Act shall be deemed to affect rights of action against any person for passing off goods as the goods of another person or the remedies in respect thereof."" (16) Again, before dealing with the contentions of the parties reference may be made to William Bailey(Birmingham ) Ltd. v. A.C. Gilbert Co. (1935) 52 RPC 136 which was cited by Mr. Shah for the purpose of showing that powers can be exercised by the Court in appeal under the Trade Marks Act. The passage from the judgment of Farewell .....on which Mr. Shah relied, is as follows (p. 148): ""There is no doubt that an appeal does lie to this Court from the decision of the Registrar. That is provided for by section 8 of the Trade Marks Act, 1919. It is also perfectly clear on the authorities that the decision of the Registrar or the Assistant Registrar is one which should not be disturbed at all lightly. That is provided for by section 8 of the Trade Marks Act, 1919. It is also perfectly clear on the authorities that the decision of the Registrar or the Assistant Registrar is one which should not be disturbed at all lightly. Prima facie his decision should stand and, in my view, though this Court might take a different view from that which was taken by the Registrar as to the similarity or dissimilarity of the two marks or the two words, or even if this Court were to take a different view as to the effect of the evidence as a whole from that taken by the Registrar, the Court would hesitate long before reversing the decision of the Registrar on any such grounds as those. In my judgment, before this Court interferes with the decision of the Registrar in a case of this kind it ought to be satisfied that the Registrar in arriving at his decision has acted upon some wrong principle, e.g., has not approached the problem in the right way, or has taken into consideration matters which he ought not to have taken into consideration or has omitted to take into consideration matters which were proper for consideration. Unless there are some such grounds as those for interfering with the decisions of the Registrar, in my judgment that decision ought not to be disturbed; but, having read carefully the decision of the Assistant Registrar in this case, I am satisfied that the case is one in which I ought to interfere."" I respectfully agree with these observations of the learned Judge and it will be my care and anxiety to see that I do not interfere with the decision of the Joint Registrar of Trade Marks in this case except upon any such grounds as are mentioned by the learned Judge in the passage quoted above. (17) Now, coming to the contention proper raised by the counsel on either side, it may be observed, to start with, that trade mark cases used to arise quite often in the United Kingdom even before the Act of 1875 was passed. Those cases generally related to infringement of trade marks and passing off. (17) Now, coming to the contention proper raised by the counsel on either side, it may be observed, to start with, that trade mark cases used to arise quite often in the United Kingdom even before the Act of 1875 was passed. Those cases generally related to infringement of trade marks and passing off. In the absence of any statutory law prior to 1875, the principles governing infringement cases were laid down by the Courts of Chancery and it was on the basis of those principles that the statutes relating to trade marks were enacted by the British Parliament. In Bow v. Hart, (1905) I K.B. 592, Lord Justice Romer, while dealing with the question as to whether any new right of property was conferred by statute on the owner of a trade mark, asked (at P.593) ""Where does the Patents Designs and Trade Marks Act, 1883, confer any new right of property on the owner of a trade mark"" ? and observed (at page 594) ""The Act is a statutory recognition of the law, which had been previously laid down by the Courts of Chancery, but it provides a better method of procedure."" (18) Twenty five years later, Clauson J. in Champagne Heidsieck Et. Cie. Monopole Societo Anonvme v. Buxton, (1930) 47 R.P.C. 28 in reference to an action for infringement of trade marks and passing off quoted the above observation of Lord justice Romer and declined to accept a novel construction sought to be put by the counsel for the plaintiff on the language used in section 39 of the Act of 1995 which had in effect figured on the Statute Book for fifty four years ever since the Act of 1875 to the effect that the right of a proprietor of a trade mark extended from a right of a proprietor of a trade mark extended from a right to prevent deception as to the origin of the goods into a right to control dealing with the goods. Section 4 of the Act of 1938 corresponds to section 39 to the extent of the right conferred upon the proprietor of a registered trade mark. It may be noted that section 21 of our Act of 1940 reproduced section 4 of the English Act of 1938 and section 28 of our Act of 1958 replaces section 21 of the Act of 1940 almost in the same terms. It may be noted that section 21 of our Act of 1940 reproduced section 4 of the English Act of 1938 and section 28 of our Act of 1958 replaces section 21 of the Act of 1940 almost in the same terms. The provisions contained in these sections are to the effect that the registration of a person in the Register as the proprietor of a trade mark in respect of any goods shall give to that person the exclusive use of the trade mark in relation to these goods subject, of course, to the provisions of certain other sections of the Act. It was in connection with the provision that in the case decided by Clauson J. it was contended that a wider construction should be put upon the language used in the section as set out by the learned Judge in his Judgment in that case, and it was pointed out by the learned Judge by quoting the observations of Lord Justice Romer that the Act did not confer any greater rights upon the proprietor of a registered trade mark than what had already been conferred upon the proprietor of a trade mark by the Courts of Chancery. (19) The question then, that arises is as to when a person could be said to be the proprietor of a trade mark so as to be entitled to the rights which were in the first instance conferred upon him by the courts of Chancery and then by the Statute. While considering this question, I do not think that, but for the contention urged by Mr. Shah and Mr. Shastri, it should be really necessary to consider the question as to whether there can or there cannot be a property in a trade mark. In Collins and Co. While considering this question, I do not think that, but for the contention urged by Mr. Shah and Mr. Shastri, it should be really necessary to consider the question as to whether there can or there cannot be a property in a trade mark. In Collins and Co. vs. Brown, (1857) 3 K. and J. 423 (426), V.C., Page-Wood observed: ""It is now settled law that there is no property whatever in a trade mark, but that a person may acquire a right of using a particular mark for articles which he has manufactured to the exclusion of everybody else."" In Hall v. Barrows, (1862) 32 LJ Ch 548, however, Sir John Romilly expressed his opinion on this point as follows: ""It is clear from a variety of decided cases, that a manufacturer, who has originally stamped his goods with a particular brand, has a property in his mark at law, and can sustain an action for damages for the use of it by another. It is also clear that Courts of Equity will restrain the use of it by another person."" The opinion thus expressed by Sir John Romilly was consistently accepted in later cases, the main reason for such acceptance being that Courts of Equity would grant an injunction only in cases of infringement of a right to property and that, therefore, it was necessary for such relief in case of an infringement of a trade-mark was regarded as a right of property in the trade mark. (20) Then dealing with the question as to how such a property in a trade mark could be acquired, Sir John Romily observed in the same case as follows : ""It has sometimes been supposed, that a manufacturer can only acquire such a property in a trade mark, as will enable him to maintain an injunction against the piracy of it by other, by means to a long-continued use of it, or at least, such a use of it as is sufficient to give it a reputation in the market where such goods are sold. But I entertain great doubt as to the correctness of this view of the case. The interference of a Court of Equity cannot, it appears to me, depend on the length of time the manufacturer has used the mark. But I entertain great doubt as to the correctness of this view of the case. The interference of a Court of Equity cannot, it appears to me, depend on the length of time the manufacturer has used the mark. If the brand or mark be an old one formerly used, but since discontinued, the former proprietor of the mark undoubtedly cannot retain such property in it, or prevent others from using it. But provided it has been originally adopted by a manufacturer, and has been continually, and still is used by him, to denote his own goods when brought into the market and offered for sale then, I apprehend, although the mark may not have been adopted a week, and may not have acquired any reputation in the market, his neighbours cannot use that mark; were it otherwise, and were the question to depend entirely on the time the mark had been used, or the reputation it had acquired, a very difficult, if not insoluble enquiry would have to be opened in every case, viz., whether the mark had acquired in the market a distinctive character denoting the goods of the person who first used it. The adoption of it by another is proof, that he considers it likely to become beneficial. If the manufacturer, who first used it, were not protected from the earliest moment, it is obvious that malicious and pertinacious rivals might prevent him from ever acquiring any distinctive mark or brand to denote his goods in the market, by adopting his mark, however varied, immediately after its adoption or change by the person who originally used it. This evil would not be avoided by ""putting his name in full, for, if the name of the manufacturer were a common one, it would be difficult for him to point out to the public what goods were or were not manufactured by him"". Citing the above quotation from the judgment of Sir John Romily, Levinge, J. of the High Court of Fort William in Bengal in an action for infringement of a trade mark in Ewing and Co. Citing the above quotation from the judgment of Sir John Romily, Levinge, J. of the High Court of Fort William in Bengal in an action for infringement of a trade mark in Ewing and Co. v. Grant, Smith and Co., (1864) 2 Hyde's Rep 185, observed (at page 189) as follows : ""I consider the law would recognize no property in the fanciful creation of a mark or ticket intended to be used as a trade mark, and not followed up a user; but that, after the use of an original mark on the manufacturer's goods in a market, no matter for how short a time, a property is acquired in the trade mark sufficient to disentitle any person to pirate it with impunity and this property would continue until it has been proved by evidence that the proprietor has abandoned it. Once having established by evidence a distinct and sole use of the mark, no one else has a right to put the same mark on his goods, and thus to represent them to have been manufactured by the person who originally used that petitioner mark."" In this view of the matter, the learned Judge on the facts of that case granted a perpetual injunction against the defendants to restrain the use of the plaintiff's trade mark. (21) In Mc.Andrew v. Bassett, (1864) 4 De G.J. and Sm. 380 (384) in answer to the argument that property in a trade mark must be regarded as the offspring of such an antecedent user as would be sufficient to have acquired for the article stamped with the trade mark general notoriety and reputation in the market, and that the property could not be held to exist until the fact of that general user, that notoriety, and that public reputation had been proved to exist, Westbury, L.C. observed as follows : ""I am not in this case determining when for the first time property may be said to be established in a trade mark. An element of the right of that property may be represented as being the fact of the article being in the market as a vendible article with that stamp or trade mark at that time the defendants imitate it. An element of the right of that property may be represented as being the fact of the article being in the market as a vendible article with that stamp or trade mark at that time the defendants imitate it. The essential ingredients for constituting an infringement of that right probably would be found to be no other than these; First, that the mark has been applied by the plaintiffs properly (that is to say) that they have not copied any other person's mark and that the mark does not involve any false representation; secondly, that the article so marked is actually a vendible article in the market; and thirdly, that the defendants knowing that to be so have imitated the mark for the purpose of passing in the market other articles of a similar description."" The opinion thus expressed by the Lord Chancellor in that case was approved and applied by the Court of Appeal in Maxwell v. Hogg, (1867) 2 Ch A 307. In that case, the Court apparently did not treat the user of the mark on one issue of the Magazine only as a bar to the counterclaim by the defendant for an injunction, but decided against him on other grounds. (22) The question as to what amount of user of a mark is necessary to invest the proprietor thereof with the right to use it to the exclusion of others was considered in Nicholson and Sons Ltd. v Bass, Ratcliff and Gretton Ltd., (1931) 48 RPC 227 by the Court of Appeal in England. In that case, an application for registration of a triangle mark used prior to 13th August, 1875 was made and the question for consideration of the Court related to the construction of the phrase ""a trade mark in use"" before 1875. On the assumption that Nicholson and Sons Ltd., had failed to establish that the triangle mark had become known and recognized by the public concerned as a whole as being their trade mark. Lord Justice Lawrence after reviewing several authorities observed (at page 251 ) as follows : ""Be that as it may, however, I am clearly of opinion that no evidence of recognition by the public is required in order to prove that a distinctive mark was in use as a trade mark before 1875. Lord Justice Lawrence after reviewing several authorities observed (at page 251 ) as follows : ""Be that as it may, however, I am clearly of opinion that no evidence of recognition by the public is required in order to prove that a distinctive mark was in use as a trade mark before 1875. What is required for that purpose is proof that the mark before that date was in fact used as a trade mark, that is, was used by the trader in his business upon or in connection with his goods, and it is not necessary to prove either the length of the user or the extent of the trade. In other words, the character and not the length or extend words., the character and no the length or extent of user is the only thing that has to be established. ever since Lord Cottenham in Millington v. Fox, (1838) 3 M and Cr. 338, decided that fraud was not an essential ingredient in order to obtain an injunction to restrain infringement of a trade mark, it was recognised by Courts of Equity that there was a right of property in a trade mark, and that such right did not depend on length of user or reputation in the market. Before the Act of 1875 it had been definitely established that the only essential quality for constituting property in a trade mark (unobjectionable in itself) was that it should have been used by the proprietor in his business upon or in connection with some vendible article."" These observations of Lord Justice Lawrence as well as similar observations of Lord Justice Romen in the case cited above were approved by the House of Lords in Bass, Ratcliff and Gretton, Ltd. v. Nicholson and Sons, Ltd.., (1932) 49 RPC 88, Lord Russell of Killowen in this connection observed (at Page 107) as follows : ""Nor is it in my opinion necessary in this connection to establish that the mark has been recognised by the public as a mark distinctive of the user's goods. The reasoning of Lord Justice Lawrence and Lord Justice Romer satisfies me upon this point."" Thus, it will be seen that in case of a distinstive mark within the meaning of the Act, right to be exclusive use thereof can be acquired immediately on that mark being used as a trade mark i.e., used by the trader in his business upon or in connection with his goods and it is not necessary to prove either the length of the user or the extent of the trade. It may be noted that the word ""Monarch"" in this case, as conceded by the counsel at the Bar, is a distinctive mark and, therefore, it follows that if it is shown that this mark was used by the petitioner corporation as a trade mark in this country upon or in connection with its food products even for once prior to the use of that mark by the respondent company in 1961, and if there is no evidence to show that this mark was abandoned by it, it would be entitled under Section 18 of the Act to apply for registration of that mark as its trade mark and also to oppose an application made by any other trade for the purpose of registering that mark in his name. (23) Mr. Shah, the learned counsel for the respondent company, however, urged that the view, taken by the Courts in England so far, that there could be a property in a trade mark had undergone a change, in the sense that there could not be any property in the mark, so that a person proposing to use it or using it can ever claim to be the proprietor thereof. According to him, a trade mark is a part and parcel of the goodwill of a trader which is generally built upon the reputation which the trade mark acquires by long user thereof in connection with or on the goods to which it is attached, and a trader can have a property in this goodwill, but not in any trade mark forming part thereof. In the alternative, it was contended by Mr. Shah that property in a trade-mark could be acquired only by such long user thereof as would associate it in the minds of the public with the goods of the person using it. In support of these contentions, Mr. In the alternative, it was contended by Mr. Shah that property in a trade-mark could be acquired only by such long user thereof as would associate it in the minds of the public with the goods of the person using it. In support of these contentions, Mr. Shah referred me to (1864) 4 De G.J. and Sm. 380 (384), to which I have already referred. The observations of Lord Chancellor Westbury in that case on which Mr. Shah relied and which I have quoted above, do not in my opinion, support either of the contentions raised by Mr. Shah, because, it has been clearly observed by the Lord Chancellor that he was not in that case driven to the necessity of determining when for the first time property might be said to be established in a trade mark. The Lord Chancellor described the essential ingredients for constituting an infringement of the right to the property in a trade mark and it was upon the basis of those ingredients present in that case that the appeal filed against the judgment of the learned Vice Chancellor was dismissed with costs. (24) Mr. Shah next relied upon certain observations of Lord Parker in A.G. Spalding and Bros, v. A.W. Gamage Ltd., (1915) 32 RPC 273. In that case, the plaintiffs who were manufacturers of footballs and other athletic goods sued the defendants for passing off certain of their old and discarded stock of footballs as and for their new and improved balls and it was held by the House of Lords that the plaintiffs had established a case of misrepresentation by the defendants and one calculated to produce damage and that they were entitled to an injunction and to an inquiry as to damages at their own risk. While dealing with the question as to the basis of a passing off action. Lord Parker observed (at page 284) as follows : ""My Lords, the basis of a passing-off action being a false representation by the defendant, it must be proved in each case as a fact that the false representation was made. It may, of course, have been made in express words, but cases of express misrepresentation of this sort are rare. Lord Parker observed (at page 284) as follows : ""My Lords, the basis of a passing-off action being a false representation by the defendant, it must be proved in each case as a fact that the false representation was made. It may, of course, have been made in express words, but cases of express misrepresentation of this sort are rare. The more common case is, where the representation is implied in the use or imitation of a mark, trade name, or get-up with which the goods of another are associated in the minds of the public, or of a particular class of the public. In such cases the point to be decided is whether, having regard to all the circumstances of the case, the use by the defendant in connection with the goods of the plaintiff, or the goods of the plaintiff of a particular class or quality, or, as it is sometimes put, whether the defendant's use of such mark, name, or get-up is calculated to deceive. It would, however, be impossible to enumerate or classify all the possible ways in which a man may make the false representation relied on."" Now, the observations on which Mr. Shah relied appear on the same page of the Report and they are as follows: ""There appears to be considerable diversity of opinion as to the nature of the right, the invasion of which is the subject of what are known as passing-off actions. The more general opinion appears to be that the right is a right of property. This view naturally demands an answer to the question-property in what? Some authorities say property in the mark, name or get-up improperly used by the defendant. Others say, property in the business or goodwill likely to be injured by the misrepresentation. Lord Herchell in Reddaway v. Banham, 1896 AC 199 expressly dissents from the former view; and if the right invaded is a right of property at all, there are, I think, strong reasons for preferring the latter view. In the first place, cases of misrepresentation by the use of a mark, name, or get-up do not exhaust all possible cases of misrepresentation. In the first place, cases of misrepresentation by the use of a mark, name, or get-up do not exhaust all possible cases of misrepresentation. If A says falsely, ""These goods I am selling are B's goods."" there is no mark, name or get-up infringed unless it be B's name, and if he falsely says, ""These are B's goods of a particular quality,"" where the goods are in fact B's goods, there is no name that is infringed at all. Further, it is extremely difficult to see how a man can be said to have property in descriptive words such as ""Camel Hair"" in the case of (1896) AC 199 where every trader is entitled to use the words, provided only he uses them in such a way as not to be calculated to deceive even in the case of what are sometimes referred to as Common Law Trade Marks the property, if any, of the so called owner is in its nature transitory, and only exists so long as the mark is distinctive of his goods in the eyes of public or a class of the public. Indeed, the necessity of proving this distinctiveness in each case as a step in the proof of the false representation relied on was one of the evils sought, to be remedied by the Trade Marks Act, 1875, which conferred a real right of property on the owner of a registered mark, I had to consider the matter in the case of Burberrys v. Cording and Co. Ltd., (1909) 26 RPC 693 and I came to the same conclusion."" It will be seen from these observations that they were directed only to the consideration of the question as to the nature of the right, the invasion of which was the subject of what were known as passing-off actions and it was in that connection that the diversity of opinion which prevailed on that question was referred to and discussed. It is perfectly true that a passing-off actions is not always based on a misrepresentation by the use of a mark, name or get-up. There are many other ways in which a trader may expose himself to the risk of a passing-off action by misrepresenting his own goods as the goods of somebody else. It is perfectly true that a passing-off actions is not always based on a misrepresentation by the use of a mark, name or get-up. There are many other ways in which a trader may expose himself to the risk of a passing-off action by misrepresenting his own goods as the goods of somebody else. For instance, as pointed out by Lord Parker, in the aforesaid observations, where A says falsely ""These goods I am selling are B's goods"", there is no mark, name or get-up infringed, yet it is a case of misrepresentation which would form the basis of a passing-off action. It was in this connection, it may be noted, that Lord Parker observed that it would not be proper to say that the invasion of the right to property would be confined to the right of property in a mark, name or get-up, but that it would be more appropriate to say that the invasion was of the right to property in the business or goodwill which was likely to be injured by the misrepresentation. Lord Parker,. however, by these observations does not seem to have expressed any view that there cannot be any property in a trade mark at all, so that an infringement of such trade mark could not form any basis of a passing-off action. As a matter of fact, in the 7th edition of Hanbury's Modern Equity the true position in this connection is stated at page 562 as follows : ""Equity regarded the right to the use of a certain name or designation as a right of property, and would grant an injunction for its protection quite irrespectively of the state of mind of the defendant. Common law hesitated as to the true ground of action for passing-off, and adopted the view that fraud was an essential ingredient of the tort. Eventually the equity view prevailed, and was, in the case of trade marks, endorsed by the legislature, which has, by a series of Acts,. culminating in the Trade Marks Act, 1938, established the principle of registration."" In support of the statement ""Eventually the equity view prevailed,"" the learned Author, cites the observation of Lord Cairns in Singer Machine Manufacturers v. Wilson, (1877) 3 AC 376 at p. 391 and those of Lord Parker in (1915) 84 LJ Ch 449 equivalent to (1915) 32 RPC 273, quoted above. Accordingly, in my opinion, the aforesaid observations of Lord Parker do not lend any support to the contention of Mr. Shah that the view held by the Courts in England, that there could be a property in a trade mark the infringement whereof gave rise to an action for injunction, had undergone a change, nor do they support his contention that right to the property in a trade mark could not be acquired independently of the goodwill of the business. (25) Mr. Shah then invited my attention to Bood and Son v. Thom and Cameron Ltd., (1907) 24 RPC 697. In that case, the plaintiffs had filed an action for infringement of their trade mark consisting of a device representing ""Cat and Barrel"" for their gin. The defendants contended that the device was common in the trade long before its registration by the plaintiffs in 1879 and that the mark should therefore be expunged from the Register. It was held by the First Division of the Court of Session that if a trade mark had been registered and had remained many years on the register, the onus was on the person alleging common user to prove that it should not have been put on the register, which onus was not discharged by proving that there had been occasional use of the mark by others prior to its registration, unless it was proved that there had been sufficient trade under the mark to associate the goods of others therewith; and that, regarding the evidence as a jury would, such trade had not been proved in that case. In the result, the infringement of the plaintiff's mark was held proved. (26) While explaining what was meant by ""common property"" in respect of the trade mark in question, Lord President observed (at page 716) as follows: ""The case of In re Lloyd and Sons' Trade Mark; Lloyd v. Bottomley, (1884) 27 Ch D 646 was a case where a mark was removed after five years at the instance of a person who was being attacked, and the ground for removal of the mark was that it ought never to have been on the Register because it was common property, and that no one could appropriate it. It may be as well to digress and explain what common property means. It may be as well to digress and explain what common property means. When this Registrar was first introduced, it was obvious that among people, who would apply to be registered, would be not only those who, for the first time, had invented what was apparently a new Trade Mark, and therefore proposed to get the priority of others by its registration, but also persons who sought to put on the Register what they had already been using. There were, of course, many instances where more than one person had been using the same Trade Mark, and accordingly that question very early came up. The Act evidently contemplated something of the sort, for in Section 71, dealing with the application for registration, it expresses itself thus: ""Where each of several persons claims to be registered as proprietor of the same Trade Mark the Comptroller may refuse to register any of them until their rights have been determined according to law, and the Comptroller may himself submit or require the claimants to submit their rights to the Court."" Now, the meaning of that Sections is, I think, clear in itself. Of course if one person wanted to register a Trade Mark who had been using it, and another, person came and said ""I want to register it as well, but I have not been using it"" that would be a clear case- it would show that there was a right in the one and not in the other. But in the case which I have mentioned, where more than one had in the past been using a Trade Mark, there were rules settled by decisions to this effect, that up to the number of three there would be registration of persons who had bona fide used the same mark, but if more than three applied and said they had used the mark, then the mark was really such common property in the trade that it was not registrable at all. The import of all this is, I think, that the true meaning of a Trade Mark is the association of the mark with one person's goods. If you show that large number of people have all been using the same mark, then it becomes a practical impossibility to say that the mark was associated with any one person's goods. The import of all this is, I think, that the true meaning of a Trade Mark is the association of the mark with one person's goods. If you show that large number of people have all been using the same mark, then it becomes a practical impossibility to say that the mark was associated with any one person's goods. And accordingly, I think the matter is well settled that the registration of a mark, an old mark, may be given to persons not exceeding the number of three but that if more than three are shown to have used it, it is common property and cannot be registered at all."" Having thus explained what was meant by the expression ""common property"" in a trade mark, the Lord President proceeded to consider the question as to what was meant by property in a mark in the state of facts antecedent to the registration of the mark in that case and observed (at page 720) as follows: ""Now what we find here is Board and Son coming forward and entering the ""Cat and Barrel"" but nobody also coming forward. The if it were a new mark there could have been no question. But it was not a new mark - it was an old one; and therefore you have to consider the question of whether the mark was common property and in doing so you must consider what you mean by property in a mark in the state of facts antecedent to the registration. Now, property in a mark does not mean a few isolated sales under that mark, but it means as I take it, that you had sold so much goods under it that the mark had come, in a certain market,. to be associated with your goods. And, it is just because I think the Lord Ordinary has, to my mind, not taken that sufficiently into view that I come on the whole matter to a conclusion different from him. I do not think the evidence led in this case is evidence such as to enable us to affirm as a proposition that the mark was common property and so ought not to have been registered. I do not think the evidence led in this case is evidence such as to enable us to affirm as a proposition that the mark was common property and so ought not to have been registered. And I must say this, that though mere lapse of time, as I before said, is not in itself a bar, yet it a mark is allowed to be on the Register all the time that this has been it is not too much to say that the onus is on the other person to say that it never ought to have been these."" It is upon these observations that Mr. Shah strongly relied for the purpose of showing that the property in a mark could not be acquired merely by a few isolated sales but that it could be acquired only if the goods to which it was attached were sold in such large quantity that in the eye of the public the mark came to be associated with those goods. It may be observed that Mr. Shah did not rely upon these observations for the purpose of supporting his contention that there could never be a property in a trade mark, but to support his other contention that property in a trade mark could only be acquired after long user thereof. I am afraid, the aforesaid observations of the Lord President do not lend any support to the contention so boldly stated by Mr. Shah. It was only in connection with the question as to when a trade mark could be said to be common property so as to enable a person alleging the trade mark to be common property to contend that the mark which was registered should never have been registered, that the Lord President very rightly, with respect, explained what property in such a mark would mean. This is evident from the last part of the aforesaid observations of the Lord President in which he said that if a mark was allowed to be on the Register all the time that the mark in that case had been, it was not too much to say that it never ought to have been there. This is evident from the last part of the aforesaid observations of the Lord President in which he said that if a mark was allowed to be on the Register all the time that the mark in that case had been, it was not too much to say that it never ought to have been there. This onus could only be discharged by the evidence of several traders who had sold the goods bearing the mark in question in considerable quantities so as to acquire reputation in the market that the goods bearing that mark were the goods of the traders using it. (27) At any rate, it must be remembered that in this case I am not dealing with a passing-off action or an action for infringement of a trade mark which is alleged to be common property. The case put up by the petitioner corporations that it was the first to use the mark ""Monarch"" in this country on its food products and that, in as much as the mark ""Monarch"" was admittedly a distinctive mark, it had acquired the right to get the mark registered in its name and also the right to oppose the application of any other trader in this country seeking to get that mark registered in his name in respect of the food products manufactured or sold by him. Apparently, in such a case there is no question of infringement of any right of property in a trade mark for which any relief is sought, nor is there any question of passing-off, so that it might be necessary to enter into questions of nicety as regards whether there could or could not be any property in a trade mark. As already stated by me while referring to the observations of Sir John Romily, it is not really necessary for me to decide in this case as to whether there could or could not be any property in a trade mark for the purpose of deciding this case. Even if it is found to be necessary to decide this question as to property in a trade mark, I have already pointed out that the Courts of Equity in England granted relief in cases of infringement of trade marks on the basis of infringements of the right of property in the trade mark. Even if it is found to be necessary to decide this question as to property in a trade mark, I have already pointed out that the Courts of Equity in England granted relief in cases of infringement of trade marks on the basis of infringements of the right of property in the trade mark. There was no other basis on which those Courts could give any relief to the plaintiffs in such cases and for the purpose of such relief the Courts of Equity did not require the plaintiff to prove that his mark by any length of user was associated in the minds of the public with his goods. All that was necessary for the plaintiff to prove was that he had used that mark in respect of his particular type of goods. That was enough in the eyes of the Courts of Equity to entitle him to a relief by way of an injunction in case of an infringement of his mark by some other trader. I have also pointed out that the statute which came to be enacted in England in 1875 and the subsequent statutes did nothing more than to embody the rights in relation to trade marks which were already laid down by the Courts of Equity. As a matter of fact, the statute enabled a person to have registered a mark not only which he had been using but also a mark which he proposed to use. The latter type of mark would evidently refer to a distinctive mark, a mark which does not directly describe the nature or quality of the goods to which it is attached. In cases of such marks, whereas the Courts of Equity did require some slight user before the proprietor thereof could institute an action for infringement thereof, the statute enabled the registration of such mark without any user at all, because such mark being distinctive per se it was not necessary for the person applying for its registration to show that mark had acquired a reputation in the market, so that it could be associated only with his goods and of nobody else. Even so far as this country is concerned, the Trade Marks Act of 1940 does not seem to have made any change in the legal rights of the owner of a trade mark as established by the Courts of Chancery in England. Even so far as this country is concerned, the Trade Marks Act of 1940 does not seem to have made any change in the legal rights of the owner of a trade mark as established by the Courts of Chancery in England. In In re Century Spinning and Manufacturing Co. Ltd., 49 Bom LR 52 : (AIR 1947 Bom 445), Chagla, J. (as he then was) observed in this connection (at page 59 of Bom LR : ( at p. 449 of AIR)) as follows : ""The question is whether in India the Trade Marks Act of 1940 has made any change in the legal rights of the owner of a trade mark. To my mind it is clear that even prior to the passing of this Act the owner of a trade mark could maintain an action for the infringement of a trade mark and that action could only be maintained on the assumption that he was the owner of the trade mark and he had a proprietary right in the trade mark. Sub-clause (I) of Section 20 of the Trade Marks Act itself assumes and implies that such a right existed in the owner of a trade mark because it says that the unregistered holder of a trade mark can maintain a suit for the infringement of a trade mark provided that the trade mark was in use before February 25, 1937, and an application for registration had been made and refused."" As regards the question whether there could be any"