TATA OIL MILLS COMPANY LIMITED v. WIPRO LIMITED — 1985 DIGILAW 481 (DEL)

M. K. CHAWLA ( 1 ) BY this order I propose to dispose of the plaintiff s application I. A. 4131/85, under 0. 39 Rr. 1 and 2 Civil Procedure Code. praying for the issuance of an ad interim injunction restraining the defendants, their servants and agents from manufacturing, selling, offering for sale, advertising directly or indirectly dealing in toilets soaps, detergents or any other soaps under the trade mark BUBBLES or any other mark that may be identical and/or deceptively similar with the plaintiffs trade mark DUBBLE, amounting to infringement of the plaintiffs registered trade mark No. 323240 or from doing any other thing as is likely to lead to confusion and deception amounting to passing off of the defendants goods and business as those of the plaintiff. This application was filed along with the main suit seeking the relief of permanent injunction restraining infringement of trade mark, passing off, rendition of accounts of profits, etc. , against the defendants. ( 2 ) AS per the plaintiff s case, Tata Oil Mills Company Ltd. is carrying on an old and established business for decades past, in the manufacture and sale of, inter alia, washing soaps, detergents, toilet soaps and toilet preparations including hair oik shampoos and eau de cologne. In the year 1977 the plaintiff adopted a distinctive trade mark DUBBLE inter alia in respect of soaps and detergents of its manufacture and sale. This trade mark is in continuous, regular and extensive use by the plaintiff since March 1981. The trade mark DUBBLE is also registered under the provisions of the Trade and Merchandise Marks Act which registration stands renewed till 1991 and is conclusively valid being more than 7 years old. By virtue of the prior adoption, the plaintiff has an exclusive right to the use of the said trade mark. The plaintiffs goods under this trade mark have acquired a unique reputation, so much so that the purchasing public and the trade have come about to identify and recognise the said goods by the trade mark DUBBLE. The plaintiffs sales of DUBBLE detergent cakes have been over Rs. 2,931 lakhs for the period 1980-81 to 1983-84. The plaintiff has further spent a sum of Rs. 208 lakhs on advertisement, sales promotional and consumer schemes relating to DUBBLE detergent cakes for the same period. The plaintiffs sales of DUBBLE detergent cakes have been over Rs. 2,931 lakhs for the period 1980-81 to 1983-84. The plaintiff has further spent a sum of Rs. 208 lakhs on advertisement, sales promotional and consumer schemes relating to DUBBLE detergent cakes for the same period. ( 3 ) DEFENDANT No. 1, M/s. Wipro Limited, is engaged in the manufacture and sale of toilet soaps among other products. Defendant" No. 2, M/s. Gainda Mal Hem Raj, Connaught Place, New Delhi, is the distributor of defendant No. 1 s goods in Delhi. It has recently come to the knowledge of the plaintiff that defendant No. 1 had adopted the trade mark of BUBBLE for its toilets soaps. This trade mark BUBBLE is phonetically as well as. visually similar with the plaintiffs trade mark BBLE. The similarity between the two marks is so great that it is bound to cause confusion and deception amongst the purchasing public and the trade and will lead to passing off defendant No. 1 s goods and business as those of the plaintiff. The defendant No. 1 by use of the trade mark BUBBLES in relation to soap is infringing registered trade mark No. 323240 of the plaintiff. The defendant No. 1 is further likely to represent its soap, as the soap of the plaintiff and the use of the trade mark BUBBLES is circulated to deceive and cause confusion resulting in passing off of the defendants goods and business, as the goods and the business of the plaintiff. While adopting the trade mark BUBBLE defendants have tried to come closest to the plaintiffs trade mark DUBBLE. Even the letter b is visually similar in its appearance to the letter d . The defendants have adopted the mark BUBBLES for toilet soap in spite of knowing the reputation of the plaintiffs trade mark DUBBLE in respect of cognate goods. The defendants have adopted the trade mark BUBBLES solely with the intention of earning easy illegal profits by infringing the registered trade mark of the plaintiff and passing off their goods and business as those of the plaintiff. The plaintiff is suffering immense loss in its business as well as its reputation by the illegal trade activities of the defendants. The defendants have adopted the trade mark BUBBLES solely with the intention of earning easy illegal profits by infringing the registered trade mark of the plaintiff and passing off their goods and business as those of the plaintiff. The plaintiff is suffering immense loss in its business as well as its reputation by the illegal trade activities of the defendants. ( 4 ) THE plaintiff came to know of the defendant No. 1 s use of the mark BUBBLES in April 1985 and a letter was addressed to them on 18th April 1985 requesting them to discontinue the use of the mark BUBBLES. Defendant No. 1, however, has refused to comply with the request and left with no other option. The plaintiffs have filed the present suit and the application. ( 5 ) AT the preliminary hearing of the application, ad interim injunction asked for was granted. Immediately on the service of the summons of the suit, notice of the application and the injunction order, the defendants filed the written statement as well as reply to the plaintiffs application. The defendants have raised two preliminary objections to the maintainability of the suit; the first being that the suit of the plaintiff is barred by time, inasmuch as, the defendants and their predecessors in title are using the trade mark BUBBLE since Jan. , 1977; that the plaintiff is not entitled to the discretionary relief of injunction as they have come to the Court at a belated stage; that the plaintiffs suit is also barred under S. 33 Trade and Merchandise Marks Act. ( 6 ) ON merits, the ddefendants took up the stand that their predecessor-in-title were using trade mark BUBBLES prior to the plaintiffs user which is in April 1980. The defendants have adopted a distinctive and attractive wrapper for the trade mark BUBBLES which is distinctive in design, get up and colour scheme, etc. , showing three children playing with bubbles. The soap is specially meant for children. The BUBBLES is a well known English word. The defendants trade mark BUBBLES is easily understood and conveys a definite meaning. If it is taken that the word dubble is an invented word and a distortion of the word DOUBLE then the two words being common in use and each conveying definite meaning and idea, there is no possibility of any buyer being deceived. The defendants trade mark BUBBLES is easily understood and conveys a definite meaning. If it is taken that the word dubble is an invented word and a distortion of the word DOUBLE then the two words being common in use and each conveying definite meaning and idea, there is no possibility of any buyer being deceived. Both the words would be appreciated phonetically and would be correctly retained in the memory. The two words are different visually as well as phonetically. The prefix of the two words are different, one begins with d and the other with b . The plaintiff cannot claim any monopoly for the suffix of their word. Whereas the word DUBBLE conveys the meaning "two fold" or "two times", the word BUBBLE conveys an idea of globule of air and gas in thin film of liquid. Both words have definite and known meanings. Similarly, the two wrappers are entirely different The plaintiffs wrapper is of rainbow colours, whereas the defendant s wrapper is in blue, yellow and pink colours. The plaintiff s trade mark DUBBLE detergent cake is a false trade description which is untrue and false. It has become invalid on account of blameworthy conductof the plaintiffs and is liable to be removed from the register of Trade Mark. ( 7 ) THE trade mark BUBBLES in respect of soaps, detergents and cleaning preparations is pending registration under No. 377681 as on 29-6-1981, in the name of the defendant No. 1 as a subsequent proprietor, claiming user since Jan. 1977. The defendants have sold goods over Rs. 10 lacs from Jan. 1977. The trade mark BUBBLE, which is the subject matter of this case is being used by the defendants since Oct. 1984 and till the end of July 1985 they have sold soaps for children under the trade mark BUBBLES worth Rs. 1. 20 crores and have spent over Rs. 70 lacs on its advertisement, during this period. ( 8 ) THE defendants also took up the stand that the word DUBBLE is being used by many traders, to convey double action and double strength. Furthermore, the plaintiffs soap is a detergent cake used for washing the clothes and is of cheaper quality and goods of lesser price than that of the defendants sophisticated soap for bathing children. ( 8 ) THE defendants also took up the stand that the word DUBBLE is being used by many traders, to convey double action and double strength. Furthermore, the plaintiffs soap is a detergent cake used for washing the clothes and is of cheaper quality and goods of lesser price than that of the defendants sophisticated soap for bathing children. Its price is 50% more than the plaintiffs , and because of special get up and colour scheme the question of any mistake does not arise, inasmuch as the defendants full name Wipro Limited is given on the carton in which the BUBBLES soap is packed. The plaintiff does not have any reputation is respect of soap for infants and children. The two soaps are used for different purposes a and there can be no deception at all. The defendants soap is a toilet soap and the plaintiffs is a washing soap. The defendants also denied that the plaintiffs sales have gone down or that they have suffered a loss in the sale of their detergent soap. The defendants are not passing off their goods as those of the plaintiff as alleged. The suit as well as the application being false to the knowledge of the plaintiff merits dismissal. ( 9 ) IN the rejoinder, the plaintiff filed the affidavit of Sh. Kishan Patti Grover, one of the Zonal Managers of the plaintiff company. In this rejoinder the plaintiff controverted the pleas raised by the defendants in their written statement as well as in reply to the plaintiffs application and reiterated the facts stated in the plaint. ( 10 ) I have heard the arguments of the learned counsel for the parties and with their help gone through the record carefully. ( 11 ) THE registration of a trade mark per se, if valid, whether in part or part B of the Register, confers on the proprietor of the mark the right to the exclusive use of the mark in relation to the goods in respect of which it is registered, that is to say, the right to exclude others from the use of the trade mark, to restrain infringement of his mark and to obtain relief in respect of any infringement. This is in addition to his right under S. 12 (1), to object to another person registering a trade mark which is the same or deceptively similar to the mark already registered by him, in respect of the same goods or discription of goods. The rights conferred by the registration under S. 28 of the Trade and Merchandise Marks Act are subject to the conditions and limitations contained in Ss. 28 (2), 28 (3), 30 (l) (b) and (c), 30 (2), 33 and 34. S. 29 of the Act defines infringement of registered trade mark and S. 30 specifies what acts do not constitute infringement. ( 12 ) THE question whether or not there is an infringement of a registered trade mark within the meaning of S. 29 of the Act, thus involves itself into two parts, namely, (I) Whether or not the defendants act comes within the scope of S. 29 of the Act and (II) Whether the defendants act comes within the exception mentioed in S. 30. Three types of cases may arise where the defendants use of his mark is alleged to constitute an infringement of the plaintiffs registered trade mark under S. 29 of the Act: (I) Whether the defendants trade mark is identical with the plaintiffs trade mark; (II) Whether the defendants trade mark contains or consists of the whole or any essential or leading -feature of the plaintiffs mark combined with other matter and (III) Where the defendants mark is deceptively similar to and is a colourable imitation of the plaintiffs mark notwithstanding that none of the integers appearing in the defendants mark is identical with any of them in the plaintiffs mark. ( 13 ) S. 29 (2) provides that if the defendant establishes to the satisfaction of the Court that the use of his mark is not likely to deceive or cause confusion, an injunction or other relief shall not be granted to the plaintiff. The only persons who can. defeat this exclusive user, are the persons covered by S. 33 of the Act. In short, if there is a user prior to the date of registration, then the user may continue. For the purpose of defence under this Section, there must be substantial continuous use by the defendant before the date of registration or the date of commencement of use by the registered proprietor, whichever is earlier. In short, if there is a user prior to the date of registration, then the user may continue. For the purpose of defence under this Section, there must be substantial continuous use by the defendant before the date of registration or the date of commencement of use by the registered proprietor, whichever is earlier. With this background, let us examine the rival contentions of the parties. ( 14 ) IT is not disputed that the plaintiffs are the registered proprietors of the trade mark dubble (word per se) in respect of washing soap, toilet soap, soap powder, detergent, hair oil and cosmetics since 22-2-77. . This registration is valid till 1991. The defendant started the use of the trade mark bubbles sometime in the month of Oct. 1984. However, their contention isthat their predecessor in interest M/s. Utility Home Products were using the trade mark bubbles since 1977 regularly, continuously and extensively, in respect of soap, detergent, liquid toilet soap etc. It is also alleged that the application of M/s. Utility Home Products under number 377681 dated 21st June, 1981 is pending registration and their mark has been accepted for advertisement by the Trade Mark Registry. By an agreement dated 6th Sept. 1985, this mark was assigned to defendant No. 1. The Trade Mark Registry has accepted the assignment and have entered the name of defendant No. 1 as subsequent proprietor of the trade mark bubbles . It is also contended that the trade mark registry has accepted their amendment application to the user of the mark bubbles from Jan. 1977 and if this amendment is ultimately allowed then in that case defendant No. 1 s case will fall within the protection of S. 33 of the Act, as being the prior user of the mark than that of the plaintiff. According to the learned counsel defendant No. 1 was entitled to improve upon his title to the goods and in this behalf placed reliance on a judgment reported as Kishan Industries v. M/s. Punjab Food Corpn. . AIR 1983 Delhi 387. During the course of the judgment on this aspect it was observed as under : "a registered trade mark can be assigned with or without the goodwill of the business concerned while unregistered trade mark cannot be assigned except along with the goodwill of the business concerned. . AIR 1983 Delhi 387. During the course of the judgment on this aspect it was observed as under : "a registered trade mark can be assigned with or without the goodwill of the business concerned while unregistered trade mark cannot be assigned except along with the goodwill of the business concerned. S. 37 of the Act provides for the assignment of the registered trade mark while Section 38 provides for assignment of unregistered trade mark". ( 15 ) THERE is no quarrel with the proposition of law laid down in the above said judgment. Certainly the defendants are within their right to improve upon their title by getting the trade mark assigned in their favour from their predecessor in interest. But one cannot lose sight of the fact, as to under what circumstances and with what intention this object has been achieved by the defendants. Few of the following facts will illustrate the mala fide attempt on the part of the defendants to defeat the claim of the plaintiffs : 1. The plaintiff filed the present suit claiming injunction against the defendants on 30th July 1985. On 31st July, 1985 ad interim injunction prayed for was granted. After the service of the summons of the suit as well as restraint order, the defendants made earnest efforts to improve upon his title for the purpose of creating a defence in the present suit. Defendant No. 1 entered into an agreement with M/s. Utility Home Products, Pune on 6th Sept. 1985, under which, they became the assignee of the trade mark dubbles . 2. As per their own saying, the predecessor in interest of defendant No. 1 came into existence only on 2ndaug. 1977, which in any case is subsequent to the date of registration of plaintiffs trade mark doubble . 3. The total sale of bubbles liquid toilet soap manufactured by M/s. Utility Home Products. Pune in they ear 1977 was Rs. 78. 50. 4. Before the filing on the present suit, the plaintiff vide their letter dated 18th April. 1985 objected to the manufacture and sale of soap under the trade mark bubbles by the defendants on account of its phonetic and visual similarity, to the plaintiff trade mark dubble . In reply to the said notice, besides taking other pleas, they did not claim the prior user by virtue of the assignment/agreement with their predecessor in interest. 5. 1985 objected to the manufacture and sale of soap under the trade mark bubbles by the defendants on account of its phonetic and visual similarity, to the plaintiff trade mark dubble . In reply to the said notice, besides taking other pleas, they did not claim the prior user by virtue of the assignment/agreement with their predecessor in interest. 5. Furthermore, sales of bubbles liquid toilet soap by M/s. Utility Home Products is confined to firms/companies all located in Pune. The liquid toilet soap is being sold by them in either 5 litre or 18 litre plastic containers unlike the packing which defendant No. 1 proposes to use. 6. In order to improve upon the title, it was incumbent upon defendant No. 1 to have purchased the entire goodwill andbusiness along with the assets and liabilities of Utility Home Products. This has not been done. The Utility Home Products is still continuing with the manufacture and sale of bubbles liquid toilet soap, as is clear from the sale voucher dated 20-9-1985 placed on record by the plaintiff. 7. In the original application dated 29-6-81 for registration of the trade mark M/s. Utility Home Products stated the user as of Aug. 1977. The amendment application has been filed by the predecessor in interest of defendant No. 1 even after the execution of the agreement or assignment. This application ought to have been filed by defendant No. 1 only. It appears that either defendant No. 1 has not purchased the business and the goodwill of the predecessors and if purchased, then the parties are not keen to abide by the terms and conditions of the contract. ( 16 ) ALL these circumstances taken together prima facie leave no doubt in my mind that the transaction of assignment between defendant No. 1 and M/s. Utility Home Products, is not a genuine one. Defendant No. 1 appears to have made a crude attempt to defeat the claim of the plaintiff. Even otherwise, the mere pendency of the trade mark application confers no legal right whatsoever in favour of the applicant, and defendant No. 1, at this stage, cannot be considered as the prior user of their trade mark bubbles , than that of the plaintiff. Even otherwise, the mere pendency of the trade mark application confers no legal right whatsoever in favour of the applicant, and defendant No. 1, at this stage, cannot be considered as the prior user of their trade mark bubbles , than that of the plaintiff. ( 17 ) THE next submission of the learned counsel for the defendants is, that if the two wrappers of the parties are kept side by side and compared with each other, the obvious conclusion will be that there is no similarity between the plaintiffs trade mark dubble and that of the defendant s trade mark bubbles . The plaintiffs wrapper is of rainbow colour, while that of the defendant No. 1 is in blue, yellow and pink colour. It is also alleged that the plaintiffs soap is a detergent cake used for washing clothes and is of cheaper quality, whereas the defendant s soap is a sophisticated one, meant for bathing children. Its price is 50% more than that of the plaintiff. On the defendant s carton the name of defendant Wipro Limited, Bombay is also , mentioned. It is further contended that the defendants have stormed the market with a bang within a short span of time and have been successful in selling the product to the extent of Rs. 1. 20, crores, whereas an approximate sum of Rs. 17,00,000. 00have been spent on the advertisement in various media to popularise the product Lastly, it is submitted that the two words being common in use and each conveying definite meaning and idea, there is no possibility of. any buyer being deceived. The impression left in the mind of the buyer is definite. In view of these circumstances, according to the learned counsel the public at large is not likely to be deceived of the two marks and the question of passing off their products as that of the plaintiff does not arise. Learned counsel also places reliance on the observations appearing at page 214 of the Law on Trade and Merchandise Marks Act by Dr. S. Venkatashwar (. 1963 Add ). The relevant portion reads as under : "in comparing two words the tribunal will consider whether or not the words convey any meaning to the ordinary purchaser. Learned counsel also places reliance on the observations appearing at page 214 of the Law on Trade and Merchandise Marks Act by Dr. S. Venkatashwar (. 1963 Add ). The relevant portion reads as under : "in comparing two words the tribunal will consider whether or not the words convey any meaning to the ordinary purchaser. Three types of cases may arise; (1) Where both the registered trade mark and the mark seeking registration are ordinary words well understood by the public, each word conveying a different meaning or idea, (2) where the mark already on the Register is an invented word conveying no intelligible idea or meaning, and the mark applied for registration is an ordinary word easily understood by the public, and conveying a definite meaning, and vice versa, and (3) where both the registered trade mark and the applicant s mark are invented words. In the first two cases the test of similarity will be less stringent than in the third case. Where the two words convey a meaning while the other is meaningless, the application may be allowed although the similarity may be sufficient to justify a refusal when both words are invented words and do not convey any meaning to the public. " ( 18 ) ACCORDING to the learned counsel, the case of the defendant No. 1 is covered under category I and at the most it. can be stretched to category II, but under no circumstance it will fall under category III of the said observation. He also relies upon number of judgments showing that the two marks cannot be considered to be similar or deceptively similar. On this short ground the plaintiffs are not entitled to injunction. ( 19 ) NONE of these arguments, to my mind, are weighty enough to decline the order of injunction which has already been passed by this Court in favour of the plaintiff. ( 20 ) AT the outset, it may be stated that the plaintiffs registered trade mark is dubble (word per se ). They do not claim the registration of or the copyright of their wrappers. The plaintiffs nowhere object to the use of wrappers by the defendants having an attractive layout, get up colour scheme. Their objection is to the use of the word bubbles , which is very close to the plaintiffs trade mark dubble . They do not claim the registration of or the copyright of their wrappers. The plaintiffs nowhere object to the use of wrappers by the defendants having an attractive layout, get up colour scheme. Their objection is to the use of the word bubbles , which is very close to the plaintiffs trade mark dubble . In fact, the plaintiffs registration covers washing and toilet soaps, soap powder as well as detergents and as such it is no defence on the part of the defendant No. 1 to say that the defendants goods are soap meant for bathing children only. Furthermore, on the question of similarity, to my mind, the letters b and d are nearest to each other as compared to other letters, both in appearance and sign. Prima facie, the similarity between the plaintiffs tirade mark dubble and the defendants trade mark bubbles is in the words, both visually as well as phonetically. The difference in price of the two items is also irrelevant for the purpose of comparing the two marks. The case is to be looked into from the point of view of an ordinary customer of this item. The average consumer is bound to wonder, whether the soap manufactured by the defendant under the mark bubbles in fact emanates from the Company of the plaintiffs, particularly when both the items are being sold from the same source or from the same shop. Thus, there is a great possibility of confusion and deception by the use of the mark bubbles by the defendants. ( 21 ) THE most important aspect which has weighed in favour of the plaintiffs, regarding the confusion between the two marks, is the incident, which took place in the factory of the defendants in Maharashtra State. The plaintiffs have placed on record a press report appearing in daily Jan Shakti, Amalnaner, Maharashtra dated 7th July, 1985. This news item concerns anincident which took place in the bubbles factory of defendant No. 1 on 6-7-85. A worker while on duty in Wipro factory at Amalnaner, fell down in a boiling soap mixture plant which was, 5 to 6 ft. in height, and died instantly. On the next day, this newspaper however wrongly referred to the plant of bubble soap, as dubble soap. A worker while on duty in Wipro factory at Amalnaner, fell down in a boiling soap mixture plant which was, 5 to 6 ft. in height, and died instantly. On the next day, this newspaper however wrongly referred to the plant of bubble soap, as dubble soap. If an intelligent journalist can be misled, and cannot easily distinguish between dubble and bubbles soap factories, there is every possibility of an average intelligent person to get confused with the two marks. Learned counsel for the plaintiffs has also placed reliance on a number of judgments in support of the plea of confusion of the two similar marks, but I do not propose to deal with them as the facts of each case are quite distinguishable from the facts of the reported judgments. The incident referred to above, in my opinion, is a deciding factor as to the similarity of the two marks and the possibility of general public being misled with the defendants product as that emanating from the plaintiff. ( 22 ) LEARNED counsel for the defendants made a last attempt to get out of this difficult situation by taking the stand that the action of the plaintiffs is a delayed one. To their knowledge the defendants were in this trade for sufficient long time which by itself is a ground for the refusal or vacating the ex parte ad interim injunction. There is no doubt about the fact that the defendants started their manufacture and sale of their product sometime in the month of Oct. 1984. A wide publicity to the trade mark bubbles was also given. Plaintiff filed the present suit in the month of July 1985. Certainly there is a gap of about 10 months. Can this delay be termed as fatal to the plaintiffs case, is the question that requires going int6. According to the averments in the plaint, the plaintiffs came to know of the defendants use of the mark bubbles in April, 1985 and immediately thereafter requested defendant No. 1 vide their letter dated 18-4-85 to discontinue the use of the trade mark bubbles . The defendants vide their letter dated 22-4-85 refused to comply with the request of the plaintiffs. Normally, it takes sometime for a party to make his mind and to initiate a particular action. The defendants vide their letter dated 22-4-85 refused to comply with the request of the plaintiffs. Normally, it takes sometime for a party to make his mind and to initiate a particular action. The delay in filing the present suit, if any, is only for three months at the most. This delay, to my mind, is not fatal. This aspect of the matter has recently been considered by this Court in case FAO (OS) 156/84 Re. Shri Swaran Singh Trading v. M/s. Unsha Industries (India), decided by D. K. Kapoor and N. N. Goswamy JJ. on 18th Nov. 1985 (reported in AIR 1986 Delhi 343 ). In similar situation on the question of delay in launching the proceedings, the Division Bench observed as under (Para 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 are not satisfied. A delay in the matter of seeking an injunction may be a ground for refusing an injunction in certain circumstances. In the present case, we are dealing with a statutory right based on the provisions of the Trade and Merchandise Marks Act 1958. An exclusive right is granted by the registration to the holder of a registered trade mark. We do not think that statutory rights can be lost by delay. The effect of a registered mark is so clearly 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 registered mark cannot be reduced to a nullity. The principles governing other types of injunctions are not to be readily applied to a case like the present. Of course, if it was a case of a similar mark as opposed to the same mark, the concurrent user coupled with delay might be a ground for refusing an injunction. However, when, the same mark is being used, in a sense the public is deceived into purchasing the defendants goods on the belief that they are the plaintiffs goods so a registered trade mark is a casualty, it is the duty of the court to protect the registered mark. That is the whole concept of registration. So, we cannot refuse an injunction even if there is some delay especially when the mark is the same. That is the whole concept of registration. So, we cannot refuse an injunction even if there is some delay especially when the mark is the same. To refuse the injunction would tantamount to permit a fraud being practised on unwary customers. There is a matter of principle on which the court cannot refuse the injunction. " ( 23 ) THIS judgment fairly and squarely applies to the facts of the present case. Furthermore, mere delay is not a defence even in equity; it is certainly no defence to the enforcement of a legal right. In the case of a legal right, a Court of equity should say, "there is no such thing as an equity in favour of infringer". Such like person cannot come forward and have a moral right to continue the piratical invasion of his neighbour s right. Certainly the Courts will not be a party to convert his piracy into lawful trade. A man is not to be deprived of his legal rights unless he has acted in such a way as would make it fraudulent for him to set up those rights. In that case, the plaintiff, the possessor of the legal right, must have encouraged the defendant in his expenditure of money or in other acts which he has done, either directly or by abstaining from asserting his legal right None of these conditions apply to the present case. Immediately on coming to know of defendants intention to launch their product in the market, a specific warning was given, but in spite of that the defendant No. 1 continued to exploit his product and spent huge amounts at his own cost and risk. he was fully made aware of the plaintiffs trade mark but in spite of that if he wishes to ignore the warning, the defendant himself is to suffer for the consequences. In this case, the delay of 3 to 4 months will not be said to be a fatal one. ( 24 ) THE plaintiffs have not only made out a prima facie case but have also succeeded in establishing that in case the defendants are allowed to continue with the manufacture and sale of their products under the trade mark bubbles , the plaintiffs will suffer irreparable injury which cannot be compensated by cost The balance of convenience also, in my opinion, lies in favour of the plaintiffs. ( 25 ) AS a result of the above discussion, the ex-parte injunction already granted by this Court on 31st July 1985 is hereby confirmed. Any observation made in this order will have no bearing on the merits of the case.