F. S. Gill ( 1 ) THE plaintiff firm has filed this suit for the grant of permanent injunction restraining the defendants, his servants, agents and representatives from manufacturing, selling, offering for sale and printing or otherwise directly or indirectly dealing in geometrical boxes under the distinctive trade mark "julie" or such other similar mark which may be identical or deceptively similar to plaintiff s trade mark "julie" amounting to passing off. A prayer for damages, rendition of accounts and destruction of containers, labels, dies, blocks and all such media used by the defendants in relation to the manufacture and sale of geometrical boxes has also been made. ( 2 ) THE plaintiff firm has alleged that it is carrying on business for the last several years in stationary, drawing and maathemetical instruments, geometrical boxes, colour boxes and foot rules. It is alleged that from the year 1972, this firm has been selling geometrical boxes under the distinctivetin containers entitled "julie" and that the get-up, colour scheme, arrangement of words, letters and printing under the trade mark "julie" are quite novel and originated by the plaintiff-firm only. ( 3 ) IT is further added that the colour scheme, get-up and lay out and design of the plaintiff s geometrical boxes are unique and represented in a special and particular manner and these boxes acquired wide reputation under the trade mark "julie" since 1972. ( 4 ) IT is also alleged that the plaintiff firm has already made an application for registration of the trade mark "julie" before the Registrar of Trade Marks, New Delhi and the same is pending for registration. It is contended that the plaintiff has acquired a right to the exclusive use to the trade mark by virtue of its long and continuous user. ( 5 ) IT is further added that M/s. Kumar Industries (defendent No. 1) manufacture and also trades in geometrical boxes while M/s. Prominent Packaging Industries (defendent No. 2) are the printers of the impugned products. It is alleged that the defendents have adopted identical and/or deceptively similar colour scheme, get-up, lay-out and also the same trade mark "julle" to those of the plaintiff and have marketed geometrical boxes which violate the plaintiff s rights. It is alleged that both the colour scheme as well as the trade mark "julie" of the plaintiff s geometrical boxes have been, pirated by the defendants. It is alleged that both the colour scheme as well as the trade mark "julie" of the plaintiff s geometrical boxes have been, pirated by the defendants. It is thus contended that the defendants have deliberately infringed and is infringing the plaintiff s legal rights in order to earn more profits by selling their inferior and sub-standard goods to those of the plaintiff and to earn profit in illegal manner and that the confusion and deceptive admilarity of both the marks and design. The result is that the defendants are putting the plaintiff into loss both in business as well as in reputation in the trade. It is submitted that in the circumstances the necessity for an immediate order restraining the defendants from infringing the plaintiff-copyright and passing off the defendants goods as for those of the plaintiff or enumerated with the plaintiff has arisen. The plaintiff has thus prayed for the grant of permanent injunction, damages, rendition of accounts etc. ( 6 ) ALONGWITH the plaint the plaintiff also made an application (I. A. 1427 of 1972) under order 39 Rules 1 and 2 read with section 151 of the Civil Procedure Code for the grant of interim injunction. The facts in this application are the same as has been stated in the plaint. ( 7 ) THE defendant have opposed this application for the grant of interim injunction in their joint reply (I. A. No. 2019/78 ). They have stated that the plaintiff has not acquired any legal right to the tin containers as alleged. It is stated that the word "julie" has been derived from Hindi Feature Film produced by M/s. Vijaya Productions (P) Limited, and the get-up, colour scheme, arrangement of the words, letters and photos of the character "julie" have been derived from the still photograph of the sequence from the said feature film. It is further stated that the representation of the character "julie" as shown on the defendants tin containers appears on the paper jacket produced and widely distributed by M/s. Polydor of India Limited under the series No. 2253-006 as adopted from the sequence of the film production. It is thus contended that the plaintiff has deliberately refrained from disclosing the material particulars which were well within its knowledge. It is thus contended that the plaintiff has deliberately refrained from disclosing the material particulars which were well within its knowledge. It is submitted that by doing so, the plaintiff has made a false and misleading claim as to the proprietary right to the representation pertaining to the tin containers. It is thus submitted that the plaintiff has knowingly made a false and misleading statement in relation to the material particulars and, therefore, the interim injunction granted be vacated and application be dismissed. ( 8 ) IN the rejoinder, the plaintiff denied the allegations of the defendants and has reiterated the assertions already made in the plaint. ( 9 ) THE geometrical boxes manufactured by both the parties have the same colour scheme and contained the name "julie". The learned counsel for the defendants has pointed out that the picture "julie" was released in 1975 and according to the plaintiff itself, it had placed an order for the supply of tin containers on 20th December, 1975. The same is evident from the photostat copy of a duplicate bill produced by the plaintiff. The learned counsel for the defendant has thus submitted that the plaintiff has falsely stated in the plaint and also in the application under Order 39 Rules 1 and2 that the geometrical boxes in question having the distinctive tin containers entitled "julie" were manufactured and sold from the year 197 2. So much so, it is stated by the plaintiff that this firm alone had originated the get-up, colour scheme, arrangement of words, letters and photos of the distinctive tins. It is also stated that this trade mark "julie" has acquire vide reputation from the year 1972. ( 10 ) THIS all seems obviously incorrect because the picture was released in 1975 and the order for the manufacture of the containers was placed by the plaintiff on 20th December, 1975. The record cover of "julie" film has been produced by the defendants. The photograph has been clearly taken from the film. Even the name "julie" as it appears on the record cover has been copied out by both the parties. There is absolutely no originality on the part of the plaintiff. Clearly the plaintiff has made an incorrect statement by saying that it has been using such geometrical boxes from 1972. There users could only be some time after December, 1975. Even the name "julie" as it appears on the record cover has been copied out by both the parties. There is absolutely no originality on the part of the plaintiff. Clearly the plaintiff has made an incorrect statement by saying that it has been using such geometrical boxes from 1972. There users could only be some time after December, 1975. In my view this false representation on the part of the plaintiff is sufficient to disentitle it from the discretion being used in its favour. In taking such a view I am fully supported by a Division Bench decision of this court resorted as Prinal Chemical Works and others v. Sukhdayal and others1. The relevant portion at page 562 reads as under : "it is well established that he who comes into equity must come with clean hands. This applies strongly to parties seeking relief against the infringement of trade mark or in passing off action and against unfair competition. One seeking relief against the fraud of others must be free from fraud. An exclusive privilege for deceiving the public is assuredly one act that a Court of Equity can be required to section (3 ). Accordingly it is essential that the plaintiff should not be in his trade mark or in his advertisement and business himself guilty of any false or misleading misrepresentation ; that if the plaintiff makes any material false statement in connection with the property, which he seeks to protect he losses his right to the assistance of a Court of Equity ; Thus, where by a sample or label claimed as a trade mark is so constructed or worded as to make or contain a distinct assertion which is false, no property can be claimed on it, or in other words the right to the exclusive use of it cannot be maintained". ( 11 ) THE learned counsel for the plaintiff has put strained efforts to show that the plaintiff firm is the originator of the trade mark and is, therefore, its proprietor. He has also tried to show that the name and device is of the plaintiff. The learned counsel has also cited Mohamed Minhajuddin v. Ahmed Khan, Wearwell Cycle Co. v. Wear well Industries, S. M. Syed Haji Abdul Rahimen and Co. v. C. H. Kizar Mohamed and Co. He has also tried to show that the name and device is of the plaintiff. The learned counsel has also cited Mohamed Minhajuddin v. Ahmed Khan, Wearwell Cycle Co. v. Wear well Industries, S. M. Syed Haji Abdul Rahimen and Co. v. C. H. Kizar Mohamed and Co. , Hamdard Dawa- khana v. Hans Raj, Ideal Werke v, Willesden A District Light Supply Co. Cohen v. Fidler and Co. , Munday v. Carey9, Parle Products (P) Ltd. v. J. P. Co. , Mysore, and East End Hosiery Mills v. Agarwal Textiles Mills, to support his point about prior user. So far as the principle of law about acquiring a right by prior user is concerned, there is no dispute. Even if the trade mark is not registered the prior user confers a right on the proprietor. But while applying the principles to the facts of the given case, it has to be seen whether a prima facie case is made out or not for the alleged passing off. Clearly the distinctive tin container entitled "juile" is not novel, nor it has been originated by the plaintiff firm as alleged. It has in fact been copied out from a still photograph of the feature film "julie". The plaintiff did not honestly state how it had been made by the plaintiff to the Court. Who had copied out earlier is not very relevant. It is total concealment from the court of all relevant facts, which shows that the Plaintiff has not come with clean hands. On the other hand the defendants have disclosed the common source which the plaintiff had deliberately withheld. Even in the rejoinder this fact was held back. Whether any permission for user is needed from the proprietor of the film is a matter which need not be gone into at the moment. Its relevancy, if any, shall be seen at the trial. ( 12 ) AFTER considering the circumstances of the case, I do not think the plaintiff has made out a case for the grant of interim injunction. The application (I. A. No. 1427 of 1978) is accordingly dismissed. As a result of the same the temporary injunction granted on 6-4-78 stands vacated. I. A. No. 2019 of 1978 is, therefore, also decided in these terms. The application (I. A. No. 1427 of 1978) is accordingly dismissed. As a result of the same the temporary injunction granted on 6-4-78 stands vacated. I. A. No. 2019 of 1978 is, therefore, also decided in these terms. ( 13 ) BEFORE closing, it may be added that the observations made in this order shall be without prejudice to the rights of the parties.