D. K. Kapur ( 1 ) THIS is an appeal directed against the judgment of alearned Single Judge of this Court on the Original Side whereby an interiminjunction to restrain the defendants from using the trade mark or trade nameusha in relating to electric irons and other electrical appliances like roomheaters, stoves, angithis, ovens, hot plates, toasters and table lamps, which hadearlier been granted was virtually withdrawn. The final order passed wasthat the defendants were allowed to use the mark usha with the word golden appearing thereafter till the decision of the suit. ( 2 ) THE suit in question was based on two registered trade marks both usha which were registered in favour of the plaintiff-appellant in 1971 and1976 respectively. The trade mark no. 276920 was registered on 1 4/12/1971, and was based on the user since 1960, which was in respectof electric irons. The same mark usha bearing no. 311724 was registeredon 17/01/1976, in respect of room-heaters, stoves, angithis (furnace),oven, hot plates for cooking, heating refrigerators, bread toasters, tablelamps, etc. , being used since 1971. Thus, there were two trade marks, onefor electric irons based on the user since 1960, and one for other electrical goods registered since 1976, based on the under since 1971. ( 3 ) ACCORDING to the defendants whose name is M/s. Usha Industries (India), they had been using the trade marks from even an earlier date. Itwas also claimed that though the plaintiff had come to know of the allegedinfringement in May, 1982. the suit was filed in 1984, so there was a considerable delay in applying for the injunction. ( 4 ) THE order under appeal has the effect of permitting the defendantsto use the impugned mark during the pendency of the suit. In the case of aregistered trade mark, this creates a very difficult situation. The effect ofregistration is to give an exclusive right of user to the proprietor of theregistered trade mark. This is provided in section 28 of the Trade andmerchandise Marks Act, 1958. The only persons who can defeat thisexclusive user are persons covered by section 33 of the Act, which provides asfollows :"33. The effect ofregistration is to give an exclusive right of user to the proprietor of theregistered trade mark. This is provided in section 28 of the Trade andmerchandise Marks Act, 1958. The only persons who can defeat thisexclusive user are persons covered by section 33 of the Act, which provides asfollows :"33. Saving for vested rights: Nothing in this Act shall entitlethe proprietor or a registered user of a registered trade markto interfere with or restrain in the use by any person of atrade mark identical with or nearly resembling it in relatingto goods in relation to which that person or a predecessor intitle of his has continuously used that trade mark from adate prior: (a) to the use of the first mentioned trade mark in relationto those goods by the proprietor or a predecessor intitle of his ; or (b) to the date of registration of the first mentioned trademark in respect of those goods in the name of theproprietor or a predecessor in title of his ; whichever isthe earlier, and the register shall not refuse (on suchuse being proved) is registrar the second mentionedtrade mark by reason only of the registration of thefirst mentioned trade mark. "in short, if there is user prior to the date of registration, then the user maycontinue. According to the defendants, now respondents, they have beenusing the marks from a prior date. There are two portions of the section,one of which refers to the date of user and the other refers to the date ofregistration. The section seems to give the earlier date as the operative date,i. e. , if the user is earlier than the registration it is that date. If we take theuser of the two trade marks as being 1960 and 1971 respectively, it meansthat the defendants must show that they have used the trade mark us HA prior to 1960 in relation to electric irons and prior to 1971 in respect of roombeaters, stoves, angithis, hot plates, etc. ( 5 ) ACCORDING to learned counsel for the respondents, the prior user isestablished from a mass of documents placed on record. We have examinedsome of these documents and must admit that it is difficult to determine whatthe nature of that user was, if any. We are satisfied that the defendants diduse the trade mark usha in certain radio goods like serials. We have examinedsome of these documents and must admit that it is difficult to determine whatthe nature of that user was, if any. We are satisfied that the defendants diduse the trade mark usha in certain radio goods like serials. Qua such goods,we find no reason why the defendants should not continue to use the trademark usha. The trade mark registered in favour of the plaintiff is not inrespect of radio goods or wireless goods. It is restricted to electric irons and to room heaters, stoves, angithis, hot plates, etc. ( 6 ) WE think, that as far electric irons are concerned, the injunctionhas to continue because the user of the plaintiff, prima facie, appears to besince 1961, but in respect of the other goods like room heaters, stoves,angithis, ovens, breads toasters, etc. , there is some user by the defendantswhich may be treated as concurrent user for some time. Mostly, these goodsappear to have been sold in small quantities in odd places in South India. The matter is to some extent made more complex by the fact that thedefendants are also named Usha Industries. We have not been able to findany advertisement or any reference in any journal relating to the trade markshowing that the defendants actually advertised that they were using thetrade mark usha prior to 1971. If there is any user between 1971 and 1976,it is on a very limited scale. ( 7 ) THERE is then the question of delay. Learned counsel for the respondents had urged that the delay is fatal to the grant of an injunction. We arenot so satisfied. A delay in the matter of seeking an injunction may be aground for refusing an injunction in certain circumstances. In the presentcase, we are dealing with a statutory right based on the provisions of thetrade and Merchandise Marks Act, 1958. . An exclusive right is granted bythe registration to the holder of a registered trade mark. We do not thinktsatutory rigths can be lost by delay. The effect of a registered mark is soclearly defined in the statute as to be not capable of being misunderstood. Even if there is some delay, the exclusive right cannot be lost. The registeredmark cannot be reduced to a nullity. The principles governing other types ofinjunctions are not to be readily applied to a case like the present. The effect of a registered mark is soclearly defined in the statute as to be not capable of being misunderstood. Even if there is some delay, the exclusive right cannot be lost. The registeredmark cannot be reduced to a nullity. The principles governing other types ofinjunctions are not to be readily applied to a case like the present. Ofcourse, if it was a case of a similar mark as opposed to the same mark, theconcurrent user coupled with delay might be a ground for refusing aninjunction. However, when the same mark is being used, in a sense, thepublic is deceived into purchasing the defendant s goods on the belief thatthey are the plaintiff s goods, so a registered trade mark is a casualty, it isthe duty of the Court to protect the registered mark. That is the wholeconcept of registration. So, we cannot refuse an injunction even if there issome delay especially when the mark is the same. To refuse the injunctionwould tantamount to permit a fraud being practised on unwary customers. This is a matter of principle on which the Court cannot refuse the injunction. ( 8 ) CONSIDERING all the aspects of the case we think we should issue aninjunction to restrain the defendants from using the trade mark usha inrespect of electric irons, but in the case of the other goods we have to pass adifferent order. The defendants will be free to use the trade mark usha inrelation to radio components and aerials without any restraint. In regard tothe other electrical goods such as room heaters, stoves, ovens, angithis, hotplates, bread toasters, table lamps, etc. , the defendants-respondents will bepermitted to use the word usha in conjunction with the word golden. in other words, they can use the name usha GOLDEN as they appear tohave done in some of the price lists shown to us. In this connection, asubsequent order passed by the learned Single Judge on a Contempt Petitionseems to be the proper order to pass. By that order, the learned Single Judgehas directed the defendants to use the name golden and usha equallyprominent, i. e. , they will be entitled to use name "golden provided the golden and usha appear equally prominent. The appeal is disposedof with this order. By that order, the learned Single Judgehas directed the defendants to use the name golden and usha equallyprominent, i. e. , they will be entitled to use name "golden provided the golden and usha appear equally prominent. The appeal is disposedof with this order. We want to make it clear that this judgment is based ona prima facie consideration of the material before us and will have no effecton the eventual determination of the facts on an examination of the evidenceproduced by the parties. ( 9 ) WE leave the parties to bear their own costs.