Mahesh Chandra ( 1 ) THIS order would dispose of I,a. 3736/86 filed by the plaintiff under Order XXXIX Rules 1 and 2 read with Section 151, Code of Civil Procedure (hereinafter referred to as the Code ) and I. A. 3775/86 filed by the defendant under Order XXXIX Rule 4 read with Section 151 of the Code. Both these I. As. arise in this suit for perpetual injunction to restrain the defendant from infringement of registered trade mark No. 297409, passing off and rendition of accounts etc. filed by Shri Brij Lal Jain, proprietor of M/s. K. K. Jain and Brothers aganist M/s. Paras Enterprises. The plaintiff has in his I. A. contended that the plaintiff is engaged in the business of manufacturing, selling and marketing of sanitary goods including C. P. brass bathroom sanitary fittings, sanitary jali, soap disc and other installations for water supply and sanitary purposes for over fourteen years; that the plaintiff adopted trade mark paras honestly and bonafide on 5th June 1971 and has been using the same for his goods since then regularly, continuously, uninterruptedly and without any hindrance whatsoever from any corner; that in order to secure the statutory right to his trade mark paras the plaintiff got the same registered as word perse paras, under the provisions of Trade and Merchandise Marks Act, 1958 and the same is registered at No. 297409 in class 11 in respect of bath room and sanitary fittings and the said registration is regular, valid and still subsisting in law; that the plaintiff is the first adopter,originator true owner and lawful proprietor of the said trade mark paras ; that by virtue of above registration and long and established user, the plaintiff acquired and retained an exclusive right to the use of trade mark paras ; that the plaintiff has given wide publicity to his trade mark paras and the sale of the plaintiff runs into several lakhs of rupees; that on account of superior quality of said goods and due to the continuous use of the trade mark paras for over 14 years by the plaintiff, the said trade mark has acquired unique reputation and goodwill in public and trade and the goods under the trade mark paras are exclusively associated with the plaintiff by the purchasing public and trade; that the defendant has recently smarted manufacturing and marketing of grating and soap disc etc. under the identical trade mark paras in clear and flagrant violation of the legal, vested and statutory right of the plaintiff and thereby has infringed the registered trade mark paras of the plaintiff; that the adoption of the word paras trade name Paras Enterprises by the defendant is dishonest and malafide with a view to trade upon the reputation and goodwill of the plaintiff and to pass off their goods and business as the goods and business of the plaintiff for which defendant has no right or justification whatsoever and the defendant is guilty of infringement of trade mark paras and of passing off their inferior and sub-standard products as and for the quality products of the plaintiff and of passing off their business as that of the plaintiff; that the plaintiff has suffered and is suffering in consequence of illegal, unlawful and unjust trade activity of the defendant and is entitled to restrain the defendant from infringing the said trade mark and of passing off and from using the trade mark paras and is also entitled to rendition of accounts from the defendant; that the cause of action arose to the plaintiff in the month of January 1986 when the plaintiff came to know about the manufacture and sale of goods by the defendant under the trade mark paras and trade name Paras Enterprises and the said cause of action is continuous and as such the defendant be restrained during the pendency of the suit from manufacturing, marketing or otherwise dealing in sanitary jali, gratings, soap disc, sanitary goods and any other allied, cognate or goods of the same description under the trade mark PARAS or any other trade mark which may be identical with and/or deceptively similar to the trade mark paras of the plaintiff and from using the trade name m/s. Paras Enterprises or any other trade names comprising of word paras . ( 2 ) THE defendant has opposed this application on the plea that the plaintiff is not entitled to injunction as he is guilty of undue and unreasonable delay, laches and acquiescence since the defendant has been using the trade mark and trade name paras and Paras Enterprises respectively since 1978 continuously and extensively to the knowledge of the plaintiff without inviting any objection from the plaintiff; that the suit of the plaintiff is time barred; that the trade mark paras and trade name Paras Enterprises used by the defendant is protected by Section 34 of the Trade and Merchandise Marks Act, 1958; that in fact the word paras has been derived from the name Paras Ram, father of the defendant, who was running a firm under the name M/s. Paras Ram Moti Ram since 1969 at Samalkha Mandi, Karnal (Haryana); tbat the defendant had honeslly and bonafide conceived and adopted the trade name Paras Enterprises and trade mark paras in the year 1978 for the manufacture and marketing of stainless steel utensils, gratings, soap discs etc. and trade mark paras was in use since the year 1969 in the parental business of the defendant; that the plaintiff s registration of trade mark paras is in respect of bathroom and sanitary fittings included in class 11 of the fourth Schedule of the Trade and Merchandise Rules, 1959 whereas the gratings and soap discs manufactured by the defendant fall in class 6 and class 21 thereof and as such the plaintiff cannot claim any exclusive right for use of the impugned marx paras in respect of the goods manufactured by the defendant; that the plaintiff had obtained the registration illegally and fraudulently and the same is liable to be cancelled inasmuch as the trade mark constituting paras is a well known personal name, the name of a touch stone as well as the name of God amongst the Jains; tbat the plaintiff is not entitled to the injunction prayed for. ( 3 ) THE application I. A. 3775/86 under Order XXXIX Rule 4 read with Section 151 of the Code filed by the defendant is on the same grounds and pleas as have been taken up by the defendant in his reply to l. A. 3736/86 referred to above and is opposed on behalf of the plaintiff on similar grounds as have been taken up in l. A. 3736/86 under Order XXXIX Rules 1 and 2 of the Code and as such it is not necessary to reproduce the pleadings in this I. A. ( 4 ) I have heard the learned counsel for the parties and have gone through the file and after giving my considered thought to the matter before me, I have come to the following findings. ( 5 ) BROADLY speaking, to entitle the plaintiff to ad-interim injunction prayed for it must be established by him that the plaintiff has a prima facie case in his favour and the balance of convenience lies in the grant of the ad-interim injunction so as to protect him, otherwise irreparable injury would be caused to the plaintiff. The position could be no different in cases of infringement of registered trade marks. In fact, in Century Traders v. Roshan Lal Duggar and Co. and others,1 which was a case under Trade and Merchandise Marks Act, it was observed at page 251 : "in granting or not granting ad-interim injunction, it is setled law, three factors have to be kept in view, namely, the establishment of a prima facie case, the balance of convenience between the parties, and whether, if the interim injunction is not issued it will cause irreparable injury to the applicant. " ( 6 ) IN order to prove his prima facie case, the learned counsel for the plaintiff has, in the first instance, drawn my attention to photostat copy of certificate of registration of trade mark purported to have been issued under Section 23 (2) read with Rule 65 (1) of the Trade and Merchandise Marks Act, 1958, which shows that vide trade mark No. 297409 dated 6tb July 1974 the 1. AIR 1978, Delhi 250, trade mark paras has been registered in part A of the register in the name of "brij Lal Jain, trading as K. K. Jain and Brothers, 4426, Phatak Rasaldar, Gali Shahtara, Ajmeri Gate, Delhi-6" (i. e. the plaintiff) in respect of bath room and sanitary fittings included in class 11 and the said registration was valid for a period of seven years. He has also drawn my attention to photostat copy of renewal letter which further shows that "the registration of Trade Mark No. 297409 in Class 11 has been renewed for a period of seven years from the 6th July 1981". He has then drawn my attention to photostat copy of the entry of the Trade Marks Journal of 1st March 1976 wherein the said fact has been advertised. This prima facie shows that the plaintiff is the owner of registered trade mark paras bearing registration No. 297409 in respect of bath room and sanitary fittings included in Class 11 with effect from 6th July 1974 and the said registration is still subsisting. ( 7 ) COUNSEL for the plaintiff has further drawn my attention to photostat copies of bills No. 562dated 10-7-74,568 dated 257-74, 579 dated 12-8-74, 592 dated 27-74, 1620 dated 31-8-78, 1727 dated 4-2-79, 1728 dated 4-2-79, 1774 dated 26-3-79, 1930 dated 5-9-79, 2031 dated 16-1-79, 2252 dated 31-7-80, 2331 dated 4-1-80, 2435 dated 2-3-81, 2558 dated 11-8-81, 2591 dated 20-9-81, 2665 dated 9-1-82, 2882 dated 21-2-82, 3085 dated 25-5-83, 3341 dated 19-5-84, 3396 dated 26-7-84, 3535 dated 20-7-85 and 3704 dated 5. 4-86 which go to show prima facie that paras brand sanitary jali and soap disc were being manufactured and sold by the plaintiff since 1974 till date under their registered trade mark paras . My attention has also been invited to true photostat copy of order dated 5th April 1986 of Shri Jaswant Singh, Metropolitan Magistrate, Delhi, which was passed in pursuance of complaint of the plaintiff filed under Section 78/79 of the Trade and Merchandise Marks Act on the plea that the accused (defendant) was manufacturing and selling goods bearing the trade mark paras . My attention has similarly been drawn to the carton of Paras Fancy Hinged Grating which bears trade mark paras on it. My attention has similarly been drawn to the carton of Paras Fancy Hinged Grating which bears trade mark paras on it. My attention has further been drawn to photostat copy of letter No. 1762 dated 30th July, 1986 from the Trade Marks Registry to the defendant on the plaintiff in respect of false representation of trade mark paras and calling upon the defendant to furnish his comments. My attention has similar been drawn to the five price lists of the plaintiff, four of which, inter alia, contain the quotation of prices in respect of soap disc and sanitary jali manufactured by the plaintiff. My attention has similarly been drawn to photostat copies of bills No. 561 dated 10-7 74, 572 dated 2-8-74, 594 dated 28-8-74, 1690 dated 5-12-78, 1964 dated 25-10-79, 1968 dated 31-10-79,2301 dated 8-10-80, 2309 dated 20-10-80, 2334 dated 10-11-80 and 2546 dated 1-8-81 to show that soap disc and sanitary jali were being manufactured and sold in the market by the plaintiff right from 1974 to 1981 and these items were being manufactured and sold under the brand name paras . The bills after 5th December 1978 bear an indication that paras was registered trade mark of the plaintiff, I have also been taken through the photostat copes of letter dated 24th February 1983, savingram dated 25-6-83, letter dated 24/26- 8-83, savingrams dated 13-10-83 and 13-9-83 from the National Small Industries Corporation Ltd. , which is a Government of India Undertaking, to the plaintiff which show that the plaintiff had been displaying its products in foreign market as well and exporting its goods. Likewise photostat copy of certificate of inspection issued by Export Inspection Agency, established by the Government of India under Section 7 of the Export (Quality Control and Inspection) Act, 1963, shows that goods manufactured by the plaintiff were being exported by M/s. National Small Industries Corporation Ltd. , New Delhi, and these goods were under the brand name of paras . In the same way my attention has been drawn to correspondence between Punjab Agricultural University and the plaintiff, photostat copies whereof have been filed, which also show that the plaintiff had been supplying public health material under registered trade mark paras to the Punjab Agricultural University as well since August 1979 onwards. Photostat copies of letters dated 30th October 1979, 20th September 1979 and 30th October 1980 have been filed in this behalf. Photostat copies of letters dated 30th October 1979, 20th September 1979 and 30th October 1980 have been filed in this behalf. A photostat copy of certificate issued by the Director of Industries, Delhi, on 14th December 1972 has also been filed to show that the plaintiff was registered as a small scale industrial unit for manufacture of picture frames and bath room fittings by the said Directorate. Photostat copies of some other correspondence with foreign companies have also been filed and these also show that the plaintiff had been in the exportbusiness of sanitary fittings from November 1979. In the face of all this evidence it has been submitted by the learned counsel for the plaintiff that the plaintiff has established a prima facie case for grant of ad-interim injunction. ( 8 ) AS against this, the defendant has placed on record photostat copy of partnership deed dated 6th April 1981 to show that some firm of the name of M/s. Paras Ram Moti Ram was functioning with effect from 6th April 1981 at Samalkha in District Karnal with one Paras Ram s/o Shri Chhaju Ram as a partner thereof. Counsel for defendant has also drawn my attention to photostat copies of certificates of registration issued in favour of M/s. Paras Enterprises by Delhi Sales Tax authorities to show that the defendant was doing business of manufacture of stainless steel and aluminium utensils from 22nd December 1979 in Delhi. None of these certificates, however, show that the defendant was also manufacturing soap disc and sanitary jali. The photostat copies of eight income-tax assessment orders of M/s. Paras Ram Moti Ram, Smalkha, have also been filed on behalf of the defendant which could not be of any help to the defendant in this case. A photostat copy of a certificate issued by the Director of Industries in favour of M/s. Paras Enterprises indicating that the defendant was registered with the Directorate for re-rolling of aluminium ingots into sheets and aluminium utensils in 1980 has been filed on behalf of the defendant but it does not show that the defendant was registered for manufacturing bath room sanitary fittings like soap disc and sanitary jali. The photostat copy of licence dated 31st March 1980 issued by Municipal Corporation of Delhi also has been filed indicating that the defendant was licensed for aluminium re-rolling and manufacture of utensils which also does cover bath room sanitary fittings like soap disc and sanitary jali. The photostat copy of certificate dated 24th November 1978 issued by the Delhi Development Authority in favour of M/s. Om Parkash Pawan Kumar c/o M/s. Paras Ram Moti Ram, Smalkha Mandi, Distt. Karnal, also does not take us any further. The learned counsel for the defendant has drawn my attention to bills No. 460 and 459 dated 31st March 1986, 457 dated 28-3-86, 455 and 456 dated 25-3-86 showing the sale of paras stainless steel gratings and soap discs but all these bills are of March 1986 and as such cannot help the case of the defendant much in so far as the plaintiff had already filed a complaint under Section 78/79 of the Trade and Merchandise Marks Act in the criminal court against the defendant before these dates which fact is admitted even on behalf of the defendant as a perusal of para 2 of photostat copy of application dated 17th April 1986 filed by the defendant before the Chief Metropolitan Magistrate, Delhi, for release of goods seized on 15th April 1986 by the police would show. A photostat copy of acknowledgement of registration of firm M/s. Paras Enterprises on 4tb April 1980 has also been filed but this does not go to show anything beyond the fact that M/s. Paras Enterprises-defendant was registered on 4th April 1980 as a firm under the Indian Partnership Act. Photostat copy of partnership deed dated 14th March 1980 also has been filed by the defendant but this also refers to manufacture of aluminium utensils and circles etc. by the defendant and makes no mention of sanitary jali or soap disc. Photostat copy of certificate of membership of the defendant of Ashok Vihar Factories Association which is of April 1978 does not in any manner throw any lighten the case of the defendant. These documents do not go to displace the prima facie case established by the documents produced by the plaintiff and discussed above. Photostat copy of certificate of membership of the defendant of Ashok Vihar Factories Association which is of April 1978 does not in any manner throw any lighten the case of the defendant. These documents do not go to displace the prima facie case established by the documents produced by the plaintiff and discussed above. ( 9 ) THE learned counsel for the defendant has urged that though the plaintiff was no doubt holding a registered trade mark paras bearing No. 297409 with effect from 6th July 1974 but it is in respect of bath room and sanitary fittings included in Class 11 whereas sanitary jali and soap disc fall in Class 6 or Class 21 of the fourth Schedule to the Rules framed under the Trade and Merchandise Marks Act and in this behalf he has drawn my attention to photostat copy of letter dated 19th May 1986 issued by Trade Marks Registry. A perusal of the said letter would show that it says that "as per the international classification of goods, item grantings of metal fall in Class 6 and item soap holder falls in Class 21". He has also drawn my attention to photostat copy of pages 115 and 213 of international classification in its support. However, gratings of metal cannot be accepted to be sanitary jali. As per dictionary meaning gratings are "fixed frames of bars or the like covering an opening for allowing passage only of light and air" as against sanitary jali which is small sanitary fitting in bath room for flow of water. Unlike soap holder, soap disc is a permanent bath room fixture. In this view of the matter the submission of learned counsel for the defendant cannot be prima facie accepted Even otherwise it would be difficult to accept that the observations of trade marks registry as to whether sanitary jali and soap disc are covered by Class 11 or are covered by Class 21 and Class 6 of the Schedule can be binding on this Court. This aspect of the matter has to be considered in the light of description given in Class 11 of Fourth Schedule which relates to classification of goods and names of the classes. Class 11 refers to "installations for lighting, heating, steam generating, cooking, refrigerating, drying, ventilating, water supply and sanitary purposes". This aspect of the matter has to be considered in the light of description given in Class 11 of Fourth Schedule which relates to classification of goods and names of the classes. Class 11 refers to "installations for lighting, heating, steam generating, cooking, refrigerating, drying, ventilating, water supply and sanitary purposes". It would be difficult to dispute that the sanitary jali and soap disc are installations used for sanitary purposes in bath rooms, their very nature is such and in view thereof it would be difficult to accept even prima facie that the plaintiff was not holding the registration of trade mark paras in respect of sanitary jali and soap disc which are prima facie covered by Class 11. Even otherwise Class 6 refers to "unwrought and partly wrought common metals and their alloys anchors anvils, bells, rolled and cast building materials; rails and other metallic materials for railway tracks; chains (except driving chains for vehicles); cables and wires (non-electric) locksmiths work; metallic pipes and tubes; safes and cash 6 oxes; steel balls; horseshoes; nails and screws; other goods in non-precious metal not included in other classes; ores" whereas Class 21 speaks of "small domestic utensils and containers (not of precious metal nor coated therewith); combs and sponges; brushes (other than paint brushes); brush making materials, instruments and material for cleaning purposes; steelwool; glassware, porcelain and earthenware not included in other classes". It would be even perse difficult to accept that Class 6 or Class 21 can include sanitary jali and soap disc as suggested by the learned counsel for the learned counsel for the defendant. It would be appropriate to mention here that before the classification is described it has been mentioned in the Fourth Schedule in brackets that "parts of an article or apparatus are, in general, classified with the actual article or apparatus, except where such parts constitute articles included inother classes". Keeping in view this note of the Fourth Schedule and the language used in Class 11, 6 and 21 it becomes all the more difficult to accept prima facie the contention of the learned counsel for the defendant in this behalf that sanitary jali and soap disc are not installations for sanitary purposes or that the same are not covered by Class 11 of the Fourth Schedule. He has similarly drawn my attention to photostat copies of letter No. 1674 and 1675 dated 24th July 1986 together with their enclosures to show that the plaintiff has sought registration of trade mark paras in respect of soap disc under Class 21 and grating under Class 6 and has urged that the conduct of the plaintiff in applying for fresh registration would imply that the plaintiff was not, in fact, holding registered trade mark paras in respect of soap disc and sanitary jali. The plaintiff cannot be estopped from claiming that sanitary jali and soap disc fall In Class 11 merely because he has applied for registration of trade mark paras under Class 6 and Class 21 as well to secure his position and put it beyond all shadow of doubt. This in any case does not disprove plaintiff s case. ( 10 ) THE submission of the learned counsel for the defendant that the word paras is the name of a person, viz. father of the defendant and further is a touch stone and a name of Jains God and as such cannot be registered as a trade mark would be no ground to refuse the application of the plaintiff so long as the said trade mark subsists as a registered trade mark with the Trade Marks Registry. Similarly the fact that the defendant s father had been running some firm at Smalkha could be of no consequence to the defendant inasmuch as that firm was dealing in foodgrains rather than in these items and trade name of that firm was not Paras Enterprises. In so far as defendant has placed copies of only two bills of 1986 on record it can be concluded that there is nothing brought on record by the defendant to show that adoption of brand paras was bonafide and it cannot be said that protection of Sections 30, 33 or 34 of the Trade and Merchandise Marks Act was prima facie available to defendant. The submission of the learned counsel for the defendant that the bills have been fabricated by the addition of the word paras by the plaintiff is not prima facie borne out from the photo copies and consequently cannot be accepted at this stage. The submission of the learned counsel for the defendant that the bills have been fabricated by the addition of the word paras by the plaintiff is not prima facie borne out from the photo copies and consequently cannot be accepted at this stage. In view of the categorical statement of the plaintiff that it was only now that the plaintiff has come to know of the infringement, it would be difficult to accept that there is any delay, laches or acquiescence on the part of the plaintiff in filing this suit, more so when the complaint before the Magistrate had already been filed by the plaintiff. There is nothing on record to suggest that the plaintiff has come with unclean hands to the court. In the face of the photostat copies of the bills produced by the plaintiff, non-production of figures of sale by the plaintiff at this stage could be of no consequence. ( 11 ) FROM my discussion above, I come to the conclusion that it is prima facie established that the plaintiff holds registered trade mark paras under No. 297409 dated 6th July 1974 in respect of bath room and sanitary fittings which, inter alia, include sanitary jali and soap disc as mentioned in Class 11 and that the plaintiff has been manufacturing and marketing these items under the trade mark paras since then whereas the defendant has only recently started manufacturing and marketing the same items under the same trade mark in violation of the provisions of Section 28 read with Section 29 of the Trade and Merchandise Marks Act, 1958 and the plaintiff would stand protected by these provisions of law inasmuch as the said registration is still subsisting on the date of the suit. ( 12 ) LET us now consider the plaintiff s allegation of passing off by the defendant. Evethough the expression passing off has been used in Sections 27 (2), 105 (c) and 106 (2) (c) of the Trade and Merchandise Marks Act, 1958, it has nowhere been defined in the Act. Action for passing off is a common law remedy under the tort and as such it can be safely concluded that the term passing off has been borrowed from the English Common Law. Although words passed off have been used in Orr Ewing and Co. v. Johnston and Co. , 13 Ch. Action for passing off is a common law remedy under the tort and as such it can be safely concluded that the term passing off has been borrowed from the English Common Law. Although words passed off have been used in Orr Ewing and Co. v. Johnston and Co. , 13 Ch. D. 434, at page 454 but the expression passing off appears to have been employed for the first time in The Singer Manufacturing Company v. Hermann Loog, 1882 (8) Appeal Cases 15. Originally action for passing off was restricted to cases of representation of one person s goods as those of another, but later on came to be extended first to business and services and thereafter to professions and non-trading activities, with the result that on date it is available in many forms of unfair trading and unfair competition where activities of one person cause damage of injury to the goods well associated with the activities of another person or group of persons. ( 13 ) IT is very difficult to define this term, much less precisely. All the same, this expression passing off has come to acquire a definite connotation. passing off has been described in Jowitt s Dictionary of English Law, Volume 2 (Second Edition) as under : "the wrong committed by a person who sells goods or carries on business, etc. under such a name, mark, description or otherwise in such a manner as to mislead the public into believing that the goods or business, etc, are those of another person. The latter person has a right of action in damages or for an account, and for an injunction to restrain the defendant for the future. " In Stroud s Judicial Dictionary, Fourth Edition, passing off has been described as follows : "passing off goods is when a trader by some device induces or endeavours to induce purchasers, or persons who may become purchasers, tobelieve that the goods offered for sale are of a kind, or quality, or from a source, or having a reputation, other than their own, e. g. by improperly using a TRADE MARK or a TRADE NAME. or its distinctive part. "likewise in Encyclopaedic Law Dictionary by Biswas, it has been described as : "selling goods or carrying on business in a manner calculated to mislead the public into believing that goods, business etc. , are those of another. or its distinctive part. "likewise in Encyclopaedic Law Dictionary by Biswas, it has been described as : "selling goods or carrying on business in a manner calculated to mislead the public into believing that goods, business etc. , are those of another. " ( 14 ) passing off can be broadly described as the act of a deceitful trader in manufacturing, marketing or selling of his goods, which bear resemblance and similar get up in shape, design, mask, mark or packing etc. as goods manufactured, marketed or sold by another trader who has been manufacturing, marketing or selling his goods with same shape, design, mask, mark or packing for a considerable period. It is a tort committed by one trader who enters the field later against another who has been in that trade for reasonably long period to the exclusion of others and who has earned a right to protection against all others in respect of his products due to exclusiveness of not only the quality but due to its brand name as well. The vital element in the case of a passing off is the probability of deception which may depend upon a number of facts, e. g. , similarity of marks, or get up or packing or name or labels or container or a device or even a fancy word. The basic hypothesis of passing off is that nobody has any right to represent his goods as the goods of somebody else and a trader cannot be allowed to use names, marks, letters or other indicia by which be may induce purchasers to believe that the goods which he is selling are manufacture of another person and it would be an actionable wrong to do so. It is in this context that it has been observed in Kerly s Law of Trade Marks and Trade Names, llth Edition, at page 319 : "it is an actionable wrong for the defendant to represent, for trading purposes, that his goods are those or that his business is that of the plaintiff, and it makes no difference whether the representation is effected by direct statements, or by using some of the badges by which the goods of the plaintiff are known to be his, or any badges colourably resembling these, in connection with goods of the same kind, not being the goods of the plaintiff, in such a manner as to be calculated to cause the goods to be taken by ordinary purchasers for the goods of the plaintiff. " ( 15 ) THIS would show that in an action for passing off it would be essential for the plaintiff to establish prima facie that his business consists of and includes manufacture or sale of a class of goods to which a particular trade name, mark, etc. applies add secondly, the class of goods is clearly defined and is in the mind of the public or a section of public associated with the plaintiff and distinguishes it from other goods or class of other similar goods and that because of the reputation of the goods some goodwill is attached to the said name and the said goodwill vests in the plaintiff and is of substantial value and the plaintiff has suffered or is likely to suffer substantial damage to his property in the goodwill by reason of defendant s selling goods which are falsely described by trade name to which the goodwill is attached. ( 16 ) IT is in the light of discussion above that the plaintiff s case of passing off has to be considered. ( 16 ) IT is in the light of discussion above that the plaintiff s case of passing off has to be considered. It has not been urged before me that the goods now marketed by the defendant are not of the same nature and precisely not identical with those of the plaintiff; rather a perusal of cartons placed on record including the price-lists by the parties of the goods of the parties confirms that the goods of the respective parties are practically same and identical, the description of the goods is the same, the use to which the two categories of goods are put is similar and even territory in which these goods are sold and marketed is the same. Samples of soap disc and sanitary jali were shown in the Court by the respective parties counsel and both parties samples are similar and identical and can certainly pass off as having been produced, manufactured and marketed by the plaintiff. Therefore, on facts, it can be concluded that goods in dispute are some, similar and identical in nature and that being the position it would follow that an ordinary customer would be likely to be beguiled, misled and mis-directed as to the nature of origin of goods and the goods marketed by the defendant can conveniently pass off as goods of the plaintiff. My attention has on this aspect of the matter been drawn to Thomas Bear and Sons (India) Ltd. v. Prayag Narain and Another,, in which it. was held that : "it is not an answer to the claim of a trader who established the right to a trade mark (e. g. , a device or a fancy word) to say that, apart from the device or the word, the labels or containers of the rival trade are very different from those of the trade mark owner. But the differences in get-up are not immaterial for, they must inevitably form an element in considering the question of probability of deception by the use of the mark. But the differences in get-up are not immaterial for, they must inevitably form an element in considering the question of probability of deception by the use of the mark. " It has further been observed therein that : "the test of comparison of the marks side by side is not a sound one, since a purchaser will seldom have the two marks actually before him when he makes his purchase ; the marks with many differences may yet have an element of similarity which will cause deception, more especially if the goods are in practice asked for by a name which denotes the mark or the device on it. "my attention in this context has also been drawn to Warwick Tyre Company Ltd. v. New Motar and General Rubber Co, Ltd. , Chemische Fabrick Greisheim Eick Elektron s Appln. , (l910) 27 R. P. C. 201. The Eastman Photographic Materials Co. Ltd v. The John Griffiths Cycle Corporation Ltd. and The Kodak Cycle Co. Ltd. Globe Super Parts v. Blue Star Flame Industries and Another, Modi Arc Electrodes Co. v. Modi Welding Electodes (P) Ltd , B. K. Engineering Company v. U. B. H. I. Enterprises (Reg,), Corn Products Refining Company v. Shangrila Food Products Daniel and Arter v. Whitehouse and Everall, The DunlopRheumatic Tyre Co. Ltd. v. The Dunlop Lubricant Co. , Basha v. Shaik Hyder, and National Electric Stores v. General Electric Company Ltd. It would be unnecessary to discuss the facts of these rulings. Suffice here to say that a persual of these rulings shows that each case depends upon its peculiar facts and keeping in view the facts of this case it can be safely concluded that the goods in dispute of the two parties are the same, similar and identical. Keeping in view the documents placed on record by the respective parties I have already come to the conclusion that the plaintiff has been manufacturing and marketing soap discs and sanitary jalis under the trade name paras for quite some time, to be precese since 1974, while the defendant has entered upon this business as lete as 1086 only Prima facie there is possibility of the prospective ordinary customers of ordinary intelligence of being misguided and misled and misdirected as to the nature of origin of these goods. Under these circumstances, all the ingredients of passing off are present in the instant case. Under these circumstances, all the ingredients of passing off are present in the instant case. Therefore, even if it were assumed for the sake of arguments that the plaintiff did not possess the registered trade mark paras in respect of sanitary jali and soap disc it would follow that the plaintiff would be deemed to have prima facie established his case of passing off by the defendant as well. ( 17 ) IN view of my discussion above, it would follow that whether on the basis of registered trade mark No. 297409 dated 6th July 1974 or on the basis of action for passing off the plaintiff has established a prima facie case in his favour. One prima facie case is established, balance of convenience would lie in favour of grant of ad-interim injunction rather than in refusal thereof otherwise irreparable injury is likely to occasion to the plaintiff. While considering the question of irreparable injury it was observed in Century Traders v. Roshan Lal Duggar and Co. and Others, as follows : "it is said that there is nothing on the record to show that any loss has been occasioned to the appellant and, in any case, the respondents can be ordered to keep accounts. We do not agree. The irreparable injury would be the likely confusion that may be caused if respondents are allowed to use the mark which we have held prima facie as being the mark of the appellant. It will take some time before the suit is decided. If the respondents are not restrained by means of an ad-interim injunction they would continue to market their goods with the offending mark. That ultimately might be held to be long user and the ultimate relief of permanent injunction may be refused on the plea of common or concurrent user. At the moment no plea of common or concurrent user has been raised by the respondents but there is nothing to prevent them from doing so in future if they are allowed to use the trade mark for the duration of the pendency of the suit. The likelihood of confusion being caused and likelihood of the plea of common or concurrent user being raised at a later stage would be the irreparable injury to the appellant. The likelihood of confusion being caused and likelihood of the plea of common or concurrent user being raised at a later stage would be the irreparable injury to the appellant. " ( 18 ) THE position in the instant case is identical and the observations of their Lordships would be equally applicable to the present case. ( 19 ) ONCE it is held that the plaintiff has established a prima facie case and balance of convenience is in favour of the plaintiff otherwise irreparable injury is likely to occasion to the plaintiff, it would follow that the plaintiff is entitled to ad-iterim injunction prayed for. It was held in Century Traders (supra) that: "in an action for passing off in order to succeed in getting an interim injunction the plaintiff has to establish user of the mark prior in point of time than the impugned user by the defendants. . . Proof of actual damage or fraud is unnecessary in a passing off action whether the relief asked for is in injunction alone or injunction, accounts and damages. If there is a likelihood of the offending trade mark invading the proprietary right, a case for injunction is made out. " In Dhanalaksmi Wearing Works v. Hajee Mohammad Abdul Azeez Sahib,15 it was held : "where a particular name has become associated with goods manufactured or sold by the plaintiff, he is entitled to the protection of its name against persons who use that name on goods which are so similar to that of the plaintiff that the purchaser might infer a common origin. . . . . . . . . " ( 20 ) I would like to reproduce here the observations in National Electric Stores (supra) in which it was observed : "no man is entitled to represent his goods as being the goods of another man; and no man is permitted to use any mark, sign or symbol, device or other means, whereby without making a direct false representation himself to a purchaser who purchases from him, he enables such purchaser to tell a lie or to make a false representation to somebody else who is the ultimate customer. There is no such thing as a monopoly or a property in the nature of a copyright, or in the nature of a patent, in the use of any name. There is no such thing as a monopoly or a property in the nature of a copyright, or in the nature of a patent, in the use of any name. Whatever name is used to designate goods, anybody may use that name to designate goods always subject to this that be must not make directly or through the medium of another person, a false representation that his goods are the goods of another person. ". . . . . . . No doubt, the acquisition of an exclusive right to a mark or name in connexion with aparticular article of Commerce cannot entitle the owner of that right to prohibit the use of such mark by others in connexion with goods of a totally different character. It must be shown in a passing off action that the goods of the plaintiff and the defendant are sufficiently alike and that the goods sold by the defendant are so similar to the plaintiff s goods as to be calculated to lead to deception. . . . . . . . . . . . . . . . . . . . . The plaintiffs who have acquired a reputation in the market through a trade mark or name with which their goods have become associated, have a right to restrain the defendant from using a trade mark or name which is indentical with or similar to that of the plaintiffs and such right extends not only to the particular goods sold by the plaintiffs, but also to cognate classes of goods, provided the cumulative effect of the similarity of the mark, the commercial connexion between the plaintiff s goods and those of the defendant and surrounding circumstances is such as to lead the unwary customers to mistake the defendant s goods for those of the plaintiffs. No hard and fast rule can be laid down as to what are goods of a totally different character. Every case has to be judged with due regard to the evidence, direct and circumstantial, brought on the record. " At this stage, I would refer to sub-section (1) of Section 106 of the Trade and Merchandise Marks Act which itself provides as under : "106 (1 ). Every case has to be judged with due regard to the evidence, direct and circumstantial, brought on the record. " At this stage, I would refer to sub-section (1) of Section 106 of the Trade and Merchandise Marks Act which itself provides as under : "106 (1 ). The relief which a court may grant in any suit for infringement or for passing off referred to in Section 105 includes an injunction (subject to such terms, if any, as the court thinks fit) and at the option of the plaintiff, either damages or an account of profits, together with or without any order for the delivery-up of the infringing labels and marks for destruction or erasure. " In Kedar Nath v. Monga Perfumery and Flour Mills,16 it was observed that the temporary injunction must be granted when there is clear infringement of plaintiff s registered trade mark and his right to its exclusive use. Injunction would not be refused unless the supposed consequences of deception are remote, speculative and improbable.- Once the plaintiff has established that he has got a subsisting registered trade mark in respect of same and similar goods and which he has been using, he would be prima facie entitled to ad-interim injunction and heavy burden would lie upon the defendant to prove that the plaintiff should not be granted ad-interim injunction. The mere fact that the ad-interim injunction would have the effect of throwing the defendant out of the trade is of no consequence. This, in fact, is the essence of stability and trade mark law. Once the plaintiff succeeds in establishing the ingredients necessary in an action for passing off, he would be entitled to ad-interim injunction prayed for. In the instant case, the plaintiff has established that he is owner of a registered trade mark and the said registration is still subsisting. He has further established in the alternative that the plaintiff has been manufacturing and selling soap discs and sanitary jalis under the trade name PARAS since long before the defendant has started manufacturing and selling sanitary jalis and soap discs which are similar and identical in nature and shape and are likely to deceive the ordinary customers since 1986 and that the plaintiff is not guilty of delay or laches in any manner whatsoever. I see no reason to hold that the plaintiff is not entitled to the ad-interim injunction prayed for. I see no reason to hold that the plaintiff is not entitled to the ad-interim injunction prayed for. ( 21 ) IN view of my discussion and findings above, I allow I. A. 3736/86 and in consequence I. A. 3775/86 is dismissed. The defendant; its servants, agents dealers, representatives and all other persons on its behalf are hereby restrained during the pendency of the suit from manufacturing, marketing or otherwise dealing in sanitary jali, gratings and soap disc under the trade name paras or any other trade mark which may be identical with or deceptively similar to the trade mark paras of the plaintiff and using the trade name m/s. PARAS ENTERPRISES or any other trade name comprising of word paras . It may be mentioned that my observations above are only for the limited purpose of disposal of the ad-interim injunction application and would not affect the merits of the case in any manner whatsoever.