C. L. Chaudhry ( 1 ) THE Plaintiff in this suit claims a decree for perpetual injunction restraining the defendant from manufacturing, selling or otherwise dealing in electronic mosquito repellent/destroyer under the trade mark SEIKO or any other trade mark identical and/or deceptively similar to plaintiff s trade mark SEIKO and for perpetual injunction restraining the defendant from passing off their electronic mosquito repellent/destroyers etc which may be identical and/or deceptively similar to the plaintiff s trade mark SEIKO on the following allegations made in the plaint :- That since the year 1986 (20. 2. 1986) the plaintiff has been carrying on the business of manufacturing and marketing of electronic mosquito repellant/ destroyers. The plaintiff has been using the trade mark SEIKO for their electronic mosquito repellant/destroyers. An application has been filed for registration of the said trade mark SEIKO before the Registrar of trade marks and the same is likely to be allowed in due course of time. The plaintiff has given wide publicity to its trade mark SEIKO and the said products under the said trade mark SEIKO connote and denote the goods and merchandise of the plaintiff s origin and of none else. The plaintiff s sales of the aforesaid goods under the trade mark SEIKO run in several lakhs of rupees. On account of superior quality of the goods and due to continuous and extensive use of the trade mark SEIKO coupled with large scale advertisement and publicity the plaintiff s trade mark has acquired enviable goodwill and impeccable reputation among the public and trade. The trade and public have come to associate the said goods under the trade mark SEIKO exclusi- vely with the plaintiff and none else. The defendants have recently started the manufacture and sale of the said good under the identical and/or decep- tively similar trade mark SEIKO of their own. The adoption and use of the trade mark SEIKO by the defendants is deliberate and intentional and in clear and flagrant violation of the plaintiff s legal and vested rights in the use of I the trade mark SEIKO of which the defendants are fully aware. It has been done with dishonest and malafide intention to trade upon the plaintiff s hard earned reputation and to earn profits in illegal manner for which they are not entitled under the law. It has been done with dishonest and malafide intention to trade upon the plaintiff s hard earned reputation and to earn profits in illegal manner for which they are not entitled under the law. The purchasers and intending purchasers of the said goods such as electronic mosquito repellants/destroyers are housewives, ser- vants, assistants etc which is an unwary class of purchasers who demand and recognise the plaintiffs products by the trade mark SEIKO. The confusion and deception is inevitable among the public and trade due to close deceptive similarity of trade marks. The defendants are guilty of passing off their inferior and substandard goods as and for the superior quality products of the plaintiff. The adoption of the same trade mark SEIKO by the defendants for the same goods is bound to deceive the customers into believe that they are buying from the defendants the same goods of the manufacture of the plaintiff while in fact they are buying the goods of the defendant. It is claimed that the plaintiff has suffered damages to the trade and reputation and further damage to the trade and reputation is inevitable unless the defendants are restrained immediately by an injunction order from violating the plaintiff s legal and vested rights in the use of the trade mark SEIKO. ( 2 ) NOTICE of the suit was given to the defendant who is contesting the claim of the plaintiff. In the written statement filed on behalf of the defendant, various pleas have been taken by way of preliminary objection. It has been stated that the suit of the plaintiff is neither bonafide nor correct and the facts stated therein are wholly false and fabricated. The plaintiff has filed the suit against the wrong party deliberately and intentionally in order to keep the court in total darkness by suppressing all the material and important facts. The suit is claimed to be bad for delay, latches, acquiescence and esstople. Thhe plaintiff iss neither the bonafide adopter or honest user or prior user or proprietor or owner of the trade mark SEIKO, the subject matter of the suit. The jurisdiction of this court to try the suit has also been denied. It is further stated that the defendant is a partnership firm and Shri B. N. Patel is the managing partner. The jurisdiction of this court to try the suit has also been denied. It is further stated that the defendant is a partnership firm and Shri B. N. Patel is the managing partner. Shri B. N. Patel is also a managing partner in the defendant s associated concern M/s Spark King Engineers Rajkot. M/s Spark King Engineers is the first inventor, adopter, user and proprietor of the trade mark SEIKO since 1981 and, therefore, the plaintiff cannot file this suit against either the defendant or the defendant s associated concern M/s Spark King Engineers in view of the provisions of Section 33 of the Trade and Merchandise Marks Act 1958. A suit has been filed by M/s Spark King Engineers in the court of the District Judge at Rajkot on 13. 2 87 against the plaintiff wherein M/s Spark King has prayed for a perpetual injunction, damages and rendition of account on account of illegal acts of infringement of trade mark and passing off by the present plaintiff. On merits, it has been denied that the plaintiff has been carrying on the business of manufacturing and marketing of electronic mosquito repellant/destroyer since 1986. The plaintiff was manufacturing electronic mosquito destroyer and mosquito repellant mats at the instance of the present defendant and the defendant s associated concern M/s Spark King Engineers and the said products have been marketed and distributed by the present defendant and the defendants associated concern and his all dealers and distributors. The plaintiff has never used the trade mark SEIKO as he being the proprietor of the mark as in fact he was fully aware that the said trade mark SEIKO belongs to M/s. Spark King Engineers. It has been further denied that the plaintiff has given wide publicity to its trade mark SEIKO and the said products under the trade mark SEIKO connote and denote the goods and merchandise of the plaintiff s origin and of none else. M/s. Spark King Engineers, associated concern of the defendant, is inter alia engaged in the business of manufacturing and marketing electronic gas lighters since the year 1981. M/s. Spark King Engineers, associated concern of the defendant, is inter alia engaged in the business of manufacturing and marketing electronic gas lighters since the year 1981. and for the said goods a trade mark containing and consisting of the word SEIKO has been adopted and used first time in India and since then and by virtue of long and continuous and extensive use of the said trade mark the products bearing the said trade mark became much popular and highly demanded in Indian markets and the said trade mark exclusively associated and connected with the products of M/s Spark King Engineers only and of none else. The purchasing public is knowing and identifying the products bearing the said trade mark as coming from M/s. Spark King Engineers. It has been denied that the plaintiff has acquired enviable goodwill and impeccable reputation among the trade and public. The purchasing public is knowing and identifying the products bearing the said trade mark as coming from M/s. Spark King Engineers. It has been denied that the plaintiff has acquired enviable goodwill and impeccable reputation among the trade and public. It is further stated that M/s. Spark King Engineers is using the trade mark SEIKO in respect of electronic gas lighters since the year 1981 and M/s S. S. Emporium of Jullunder and M/s. Appliance Linkers of Amritsar, the associated concerns managed by Shri S. K. Gupta of the plaintiff company were maketing and stocking the said SEIKO Brand Electronic Gas Lighters since 1982 and Shri S. N. Gupta of the plaintiff company was on good terms with Shri B. N. Patel the managing partner of M/s Spark King Engineers and of the present defendant, M/s Spark King Engineers introduced a new electronic item i. e. electronic mosquito destroyer in the end of 1985 asked Shri S. K. Gupta to manufacture the same and also authorised him to stamp the trade mark SEIKO, as the said product had to be marketed by M/s Spark King Engineers and his all dealers and distributors throughout India and with thismutual arrangement the said product has been marketed and distributed and advertised widely and extensively by Spark King Engineers and his dealers and distributors and the trade and public is purchasing the said product as of Spark King Engineers only but within first six months or so, Spark King Engineers received serious complaints from dealers and distributors about the low and poor quality of the product and as per the guarantee of 365 days extended by M/s King Engineers for such products, the dealers and distributers returned the defective articles for replacement to M/s Spark King Engineers and therefore M/s. Spark King Engineers were constrained to put an end to the arrangement with the plaintiff. Mr. B. N. Patel. Managing partner of M/s Spark King Engineer started manufacturing the said products independently at Rajkot in the month of Jane, 1986 under the trade mark SEIKO and under the proprietory concern Seiko Engineers. Thereafter Shri S. K. Gupta requested Mr B N. Patel to take him as a partner in Seiko Engineers and accordingly Shri Patel converted Seiko Engineers into a partnership firm by taking Shri S. K. Gupta and others as partners therein. Thereafter Shri S. K. Gupta requested Mr B N. Patel to take him as a partner in Seiko Engineers and accordingly Shri Patel converted Seiko Engineers into a partnership firm by taking Shri S. K. Gupta and others as partners therein. M/s Seiko Engineers has purchased all the stocks of finished and semi finished goods along with import material and other raw material and packing material from the plaintiff and thereafter continued the business of manufacturing and marketing the said product under the direct control of Shri B. N. Patel and in such circumstances the adoption and use of the trade mark SEIKO on the part of the defendant is neither dishonest nor intentional as falsely alleged by the plaintiff. The plaintiff is himself guilty of infringement of trade mark rights of M/s Spark Engineers and is guilty of passing off the goods by using trade mark SEIKO unauttiorisedly. It is denied that on account of unlawful and unjust trade activity the plaintiff has suffered damage in the well established trade and reputation. It is further alleged that the plaintiff has ceased to manufacture the product in July 1986 when Mr S. K. Gupta was admitted as a partner in the defendant firm. ( 3 ) IN the replication filed by the plaintiff (he allegations of the defendant have been denied. It is stated that the plaintiff has a right to bring the suit against the defendant. The plaintiff is the first adopter and prior user of the trade mark SEIKO and is proprietor thereof. The defendants have imitated and copied the said trade mark and as such are liable to be sued at the hands of the plaintiff. The allegation of delay and laches in bringing the suit have been repudiated. M/s. Spark King Engineers had never manufactured mosquito repellant under the trade mark SEIKO, and were engaged in the manufacture of gas lighters only. The plaintiff has been using the trade mark SEIKO since 20-2-1986 continuously to the knowledge of the defendant. Provisions of Section 33 of the Act has no application to the present suit. M/s Spark King Engineers cannot raise the objection to the use of the mark by the plaintiff, inasmuch as they had issued a no objection letter to the plaintiff for use of the same in respect of mosquito repellants. Provisions of Section 33 of the Act has no application to the present suit. M/s Spark King Engineers cannot raise the objection to the use of the mark by the plaintiff, inasmuch as they had issued a no objection letter to the plaintiff for use of the same in respect of mosquito repellants. It has been denied that the plaintiff was manufacturing mosquito repellant mats or mosquito destroyers at the instance of the defendants or their associated concern M/s Spark King Engineers. It has been denied that the product was manufactured by the plaintiff under the instructions or as per directions of the defendants or of Mr Patel. The goods were manufactured by the plaintiff on its own not under the instructions or direction of (he defendant. The plaintiff s goods were not only sold through defendants but were also sold through a chain of dealers and stockists. The plaintiff is the first to adopt and use the mark SEIKO for electronic mosquito destroyers/repellant and is proprietor thereof, under the law. It has been denied that the defendant started using the mark SEIKO for manufacturing mosquito repellants in June, 1986 as alleged. Mr S K. Gupta never requested the defendant to take him as a partner of the defendant firm. The plaintiff got the technology from Japan. The product was developed by the plaintiff in December, 1985. S. S. I. registration was got done and application before the Sales Tax authorities were filed and the product was launched in February, 1986. The plaintiff company marketed through 30 distributors. The said M/s Spark King Engineers was only a small distributor who was supplied 100 machines only and payment was received by the plaintiff in full and final. It was fully in the notice and knowledge of Spark King Engineers that the plaintiff is the manufacturer of the said mosquito repellants. The said products were manufactured by the plaintiff, billed by the plaintiff and payment was received by the plaintiff company. Shri S. K. Gupta of the plaintiff company was taken in as partner of the defendant firm for a 35% profit without investment because it managed the technology and technical tie-up of the defendants with the plaintiff on royalty basis. The defendants paid royalty to the plaintiff. All the imported and Indian raw material were managed by the plaintiff. Shri S. K. Gupta of the plaintiff company was taken in as partner of the defendant firm for a 35% profit without investment because it managed the technology and technical tie-up of the defendants with the plaintiff on royalty basis. The defendants paid royalty to the plaintiff. All the imported and Indian raw material were managed by the plaintiff. The machinery was provided by the plaintiff as also the technical know how to the defendants. Thus the defendants started manufacturing and selling mosquito repellant in June, 1986 at the instance and on plaintiff s providing the machinery, know-how and raw material for the same. In the partnership deed of defendants firm it was clearly mentioned that the trade mark SEIKO in respect of mosquito repellants was that of the plaintiff. Shri S. K. Gupta one of the directors of the plaintiff company managed technology and technical tie-up of the defendants with the plaintiff company on the basis of royalty to be paid by defendant to the plaintiff. The plaintiff provided plant and machinery to the defendant on loan for job work. The raw material was also imported and provided by the plaintiff to the defendant. The defendant was to simply assemble the product and return to the plaintiff on job work. The plaintiff raised bills only for imported raw material for inventory purposes. In consideration of the above arrangement Shri S. K. Gupta Director of the plaintiff company was taken as a partner entitled to 35% of the profits of the defendant firm without any investment. The goods were assembled by the defendants and royalties paid. Thereafter, the above arrangement came to an end and the defendants were asked to stop manufacture and sale of SEIKO mosquito repellants which they did not, hence the present suit by the plaintiff. In all the facts, stated above, it is absolutely clear that the plaintiff was the first adopter, first user, true owner and lawful proprietor of the trade mark SEIKO in respect of mosquito repellants/destroyers and the defendants who were simply manufacturing it for the plaintiff or selling plaintiffs product cannot claim to have any right in the use of trade mark SEIKO for the said goods and are liable to be restrained by an order of injunction. The defendants having passed off their goods as those of the plaintiff are liable to render their accounts of profits earned by them on sales of said goods till the time an order/decree for injunction is passed by this Hon ble Court. ( 4 ) ALONG with the suit, the plaintiff has filed the present application, LA. 747/87, under Order 39 Rules 1-2 Civil Procedure Code, which is under disposal. In the application, the averments made in the plaint have been reiterated. Further, it has been stated that the plaintiff has a strong prima facie case and the balance of convenience lies in favour of the plaintiff and against the defendant and the defendant may be restrained immediately during the pendency of the suit from using the trade mark SEIKO in respect of electronic mosquito repellant/destroyer. The plaintiff has already established a good market for its product under trade mark SEIKO and taken pain to advertise the same widely and spent enormous sum for publicity. The plaintiff shallsuffer irreparable loss to their business and reputation if the defendants are not immediately restrained. The reputation and goodwill of the plaintiff, which is hard earned, if once damaged would not be regained in terms of money and an order of injunction is the only appropriate remedy to sufeguard the business and reputation of the plaintiff from being purloined and damaged. In these premises temporary injunction is sought for. ( 5 ) THE application is being contested by the defendant on the pleas which are identical to the pleas taken in the written statement. ( 6 ) I have heard the learned counsel for the parties. ( 7 ) THE case of the plaintiff is that he has been using the trade mark SEIKO for their electronic mosquito repellant/destroyer since 20. 2. 1986. In support of this contention, the plaintiff has placed on record a copy of the additional representation dated 11. 9. 86 wherein the user is shown to be of 20,2. 1986. An application dated 31. 12 85 was made to the sales tax officer NOIDA for changing the product on the ground that the plaintiff was going to start manufacturing mosquito repellant and handy lighters. A bill dated 24. 2. 1986 shows the sales of SEIKO mosquito repellant/destroyer to M/s. Spark King Engineers. The total sales of the plaintiff are shown to be Rs. 14,70,000. 00. An amount of Rs. A bill dated 24. 2. 1986 shows the sales of SEIKO mosquito repellant/destroyer to M/s. Spark King Engineers. The total sales of the plaintiff are shown to be Rs. 14,70,000. 00. An amount of Rs. 75,900. 00is stated to have been spent on publicity. The plaintiff has also placed on record letter dated 2. 12. 85 of M/s Spark King Engineers addressed to the plaintiff which reads as under : "m/s. Sharp LPG Pvt Ltd. , 59, Rani Jhansi Road, 3rdfloor. Roomno. 312, New Delhi. Dear Sirs, Sub : Issue of an authority to utilise our Brand SEIKO for you. In connections with the subject mentioned above we have to inform you that we are registered of brand SEIKO for the electronic item. We have confirmed and authorised you to utilise our this name SEIKO for your mosquito Destroyer that please note. Thanking you and assuring our best service all the time. " ( 8 ) ON the other hand, the main thrust of argument of the defendant is that M/s. Spark King Engineers is the first inventor, adopter and user, proprietor of the mark SEIKO since 1981 and therefore, the plaintiff has no right to use this mark. The entire defence set up is that M/s Spark King Engineers had the right to use the mark and the plaintiff cannot use it. I am afraid, I cannot comment upon the rights of M/s Spark King Engineers vis-a-vis the plaintiff, as M/s Spark King Engineers is not a party to this suit. It may be mentioned that M/s Spark King Engineers vide their letter dated 2. 12. 1985, quoted above, has authorised the plaintiff to utilise their mark SEIKO for mosquito destroyer. Material has been placed on this record to show that M/s Spark King Engineer has filed a suit for grant of permanent injunction restraining the present plaintiff from manufacturing, marketing or offering for sale electronic mosquito destroyer, repellant, mats under the trade mark SEIKO. The suit is pending in the court of the District Judge Rajkot. A copy of the order dated 5. 6. The suit is pending in the court of the District Judge Rajkot. A copy of the order dated 5. 6. 87 passed by the Assistant Judge, Rajkot, on the application of M/s. Spark King Engineers under Order 39 Rules 1 and 2 for grant of temporary injunction restraining the present plaintiff from manufacturing or marketing or offering for sale electronic mosquito repellant, destroyer, mats under the trade mark SEIKO during the pendency of the suit has been placed on record of this case. By this order, the learned Judge dismissed the application of M/s. Spark King Engineers for grant of temporary injunction. ( 9 ) SO far as the defendant is concerned, its case is that Shri B. N. Patel as the sole proprietor of SEIKO Engineers started manufacturing mosquito repellant/destroyer in the month of June, 1986, but nothing has been brought on record to show that the defendant actually manufactured and sole mosquito destroyer/repellant under the trade mark SEIKO from June, 1986. It appears that the defendant has recently started manufacturing and marketing the product under the trade mark SEIKO. Taking into consideration the totality of circumstances, I am of the view that the plaintiff has been able to prima facie establish that they are using the trade mark SEIKO for mosquito destroyer/repellant since February, 1986, much prior to the manufacturing and marketing of the same goods by the defendant. Further, prima facie, I am of the view that the plaintiff has been able to establish that their goods had become by user distinctive of the plaintiff s goods. The conduct of the defendant is calculated to pass off their goods as those of the plaintiffs, or at least, to produce confusing in the minds of probable customers or purchasers or other persons with whom the plaintiff has business relations as would likely to lead to the other goods being bought and sold for theirs. ( 10 ) I am of the opinion that the plaintiff has been able to make out a prima facie case for the grant of Injunction. Thebalance of convenience is also in favour of the plaintiff and in case the defendants are not restrained, the plaintiff is likely to suffer irreparable injury, as the suit is likely to take some time before it is decided. The result is that this application is allowed. Thebalance of convenience is also in favour of the plaintiff and in case the defendants are not restrained, the plaintiff is likely to suffer irreparable injury, as the suit is likely to take some time before it is decided. The result is that this application is allowed. The defendants are restrained from manufacturing selling or offering for sale or otherwise dealing in mosquito repellant under the trade mark SEIKO till the final disposal of the suit. ( 11 ) NO observation herein contained shall be construed as an expression of opinion in respect of any matter which may arise at the time of final decision of the case.