U. C. BANERJEE, J. ( 1 ) IN this interlocutory application the petitioner has prayed for an order of injunction restraining the Spencer Pure Drinks Pvt. Ltd. and one Amar Dutta from selling and offering for sale or advertising or utilising otherwise the trade name and mark 'spencer's' and the labels or any colourable imitations thereof in relation to the mineral and aerated water and other non-alcoholic beverages in any manner whatsoever. ( 2 ) ON the factual score it appears that one Sm. Bhakti Dutta carried on business of manufacture and sale of mineral, aerated water and other non-alcoholic beverages under the trade mark and name "spencer's". The nark "spencer" was registered on 6th October 1942 bearing Registration No. 6108 and the register maintained by the Registrar of Trade Marks recorded "sm. Bhakti Dutta" as the registered proprietor for the mark. ( 3 ) ON the 1st September 1961 Sm. Bhakti Dutta assigned the trademark, trade name and label in favour of "spencer's Aerated Water Factory Private Limited" now in liquidation being the defendant No. 3 herein of which defendant No. 2 was the Managing Director. The said assignment was also entered in the register of trademark. Since however 1963 the defendant No. 3 continuously used the trade mark, trade name and associated trade marks and labels in relation to mineral and non-alcoholic drinks which became a part of the good will and assets and property of the defendant No. 3. On 23rd September 1975, however, the defendant No. 3 was directed to be wound up and the Official Liquidator was appointed as the liquidator of the defendant No. 3. In a suit being Suit No. 754 of 1979 by the defendant No. 3 against M/s. Bijoli Grill Caterers this Court directed the official liquidator to assign and transfer the good will, trade name, trading style and trade mark of the defendant No. 3 in favour of the plaintiff herein and in terms whereof by a registered deed of assignment the official liquidator on 21st February 1980 transferred and assigned to the plaintiff the good will, the right to use as part of a trading style, the name "spencer" with the option to the plaintiff to use its existing trading style, its trade marks and labels. ( 4 ) ON the factual score, however, it appears that in a suit instituted by Spencer and Co. ( 4 ) ON the factual score, however, it appears that in a suit instituted by Spencer and Co. in the High Court at Madras, the Madras High Court on 14th December 1979 passed an order of injunction restraining the plaintiff from using trade mark, "spencer's". Subsequently on 24th September 1980 the plaintiff herein instituted a suit being Suit No. 861 of 1980 (Bijoli Grill Spencer Products vs. Spencer Co. Ltd. , Madras) and the defendant No. 3 inter alia for a declaration that the defendant No. 3 was the registered proprietor of the trade marks, the associated trade marks and the trade name "spencer" and that it was entitled to use its trade name containing the words, "spencer" in relation to mineral waters. On an interlocutory application in the above-noted Suit No. 861/80 by the plaintiff herein S. K. Roy Chowdhury, J. was pleased inter alia to direct that the plaintiff would be entitled to use the words "spencer's" for the purpose and trade name "spencer" and other trade mark, if any, in West Bengal only. Subsequently in October 1980, the defendant No. 2 instituted a suit being Suit No. 943/80 in this Court for a declaration that the order dated 25th September 1979 was illegal, void and a nullity together with a prayer for declaration that the Deed of Assignment was illegal, and null and void. The plaintiffs application, however, in Suit No. 861 of 1980 came up for final disposal before P. Khastagir, J. and on 21st July 1982 the application of the plaintiff was dismissed and an appeal was taken as against the order of Khastagir, J. being Appeal No. 251/82 and the Appellate Court on 6th August 1982 granted a stay of operation of the order dated 21st July 1982 passed by Khastagir, J. till the disposal of the application. The interlocutory application in the Appeal No. 251/82 subsequently came up for final disposal on 14th January 1983 wherein the stay order was directed to continue till the disposal of the appeal. ( 5 ) DURING the pendency of the plaintiff's application, however, the defendant No. 2 also moved this Court for an interlocutory order of injunction on 6th October 1980 restraining the Bijoli Grill Caterers from using and exploiting the trade name and trade mark in Suit No. 943/80. ( 5 ) DURING the pendency of the plaintiff's application, however, the defendant No. 2 also moved this Court for an interlocutory order of injunction on 6th October 1980 restraining the Bijoli Grill Caterers from using and exploiting the trade name and trade mark in Suit No. 943/80. By an order dated 15th April 1984 D. K. Sen J. (as His Lordship then was) disposed of the application in which it was inter alia held that the right title and interest of the defendant No. 3 in the trade name and mark were duly transferred by the deed of assignment, dated 21st February 1980 and the defendant No. 2 herein prima facie failed to establish any right or title in the said trade marks. An appeal was also taken from the order passed by D. K. Sen, J. , but the Appellate Court, however, did not pass any order for stay of the operation of the order dated April 15, 1984. ( 6 ) ON 2nd December 1987, the appeal of the plaintiff against the order, dated 21st July 1982 was dismissed having regard to the orders of injunction made by the Madras High Court in Suit No. 649/79 by reason where for, however, from September 1988 onwards the defendant No. 1 commenced sale of the aerated water under the mark, "spencer's" bearing the, labels which are said to be a colourable imitation of the said mark, name and label of the plaintiff. In October 1988, however, the present suit was instituted by the plaintiff herein. The plaintiff also obtained an ad interim order of injunction restraining the defendant Nos. 1 and 2 from manufacturing, selling, advertising the trade name and mark "spencer's" and the labels or any colourable imitation thereof in relation to the mineral and aerated waters. Subsequently on an application of the defendant Nos. 1 and 2, however, the Vacation Bench on 14th October 1988 granted an order of stay of the order passed on 4th October, 1988, but directed maintenance of separate accounts. ( 7 ) ON the wake of these facts, let us therefore, consider as to whether the plaintiff herein is entitled to an order of injunction as prayed for and granted by this Court, though, however, subsequently vacated. ( 7 ) ON the wake of these facts, let us therefore, consider as to whether the plaintiff herein is entitled to an order of injunction as prayed for and granted by this Court, though, however, subsequently vacated. ( 8 ) THERE cannot be any manner of doubt that presently the petitioner, reason of the order of the Appellate Court has no right to use the mark "spencer's" until after the disposal of the matter before the Madras High Court as would be evident from the petitioner's own advertisement as annexed to the petition by way of crossing the name "spencer" on the bottle and inserting "bijoli Grill" and as such according to Mr. Mukherjee, there cannot be any manner of confusion in the minds of the general public as whose product they are purchasing or at least the user of the words "spencer's" cannot be identified with that of the product of the plaintiff. The mark, get up and the over-all style of the bottled are also different. As a. matter of fact, the application for registration has also been refused the Registrar of Trade Marks, though, however, the appeal is pending. Mr. Mukherjee on the basis of the above submitted that the injunction order ought not to be allowed to continue. ( 9 ) MR. Bachawat, however, appearing in support of the application submitted that while it is true that there is no right to use the mark "spencer's" at present, but that does not by itself destroy the good will and the right to sue continues and as such the order of injunction ought to be granted. ( 10 ) AT this juncture, however, it would be eminently fit to refer to the order passed by D. K. Sen, J. , wherein in no uncertain terms it was observed that the defendant No. 2 has had no right to use the marks "spencer's". Sen, J. in that order observed:"it appears prima facie that the plaintiff has failed to establish any right or title on the strength of which he can claim to be entitled to the sole user of the trade name and trade mark. The plaintiff commenced to exploit the said mark admittedly 1976 when the company which was under liquidation, was on record, the registered owner of the said trade mark. The plaintiff commenced to exploit the said mark admittedly 1976 when the company which was under liquidation, was on record, the registered owner of the said trade mark. Such user by the plaintiff was in its inception, wrongful and illegal and amounted to interference with or property in custodia legis. The continued user by the plaintiff of the said trade name and the trade mark after October 1978 when the trade mark was deregistered continued to be wrongful as even after such deregistration the company in liquidation continued to have a substantial commercial interest in the said trade name by reason of wrong user. The existing right, title and interest of the company in the said trade name or marks were duly transferred in favour of the said firm by the deed of assignment, dated 21st February 1980 against consideration. . . . . . . . . . . . . For the reason aforesaid, the plaintiff is not entitled to any order on this application. . . . . . " ( 11 ) THE other factual score cannot also possibly be ignored while dealing with the matter in issue, viz. , the deed of assignment. At a particular point of time, the plaintiff herein started manufacture and sale of non-alcoholic beverages and aerated and mineral waters with the marks "spencer's" in terms of the deed of assignment granted by a person who was authorised to grant such an assignment. The initial title to use the mark was, there fore, with authority and cannot be termed to be in any way violative of any of the provisions of law. Subsequently there is an order of injunction from the original "spencer's" Company at Madras. This Court thereafter allowed the plaintiff herein to use the mark only in West Bengal and the plaintiff was in user of the said mark for a continuous period. The name "spencer" thus has been associated with the plaintiff's name. The Appellate Court upon consideration of the facts have dismissed the plaintiff application and on the wake of such an order of dismissal in order to dispel any confusion in the mind of the people, the plaintiff issued advertisement to the effect that the product is the same and is identical in nature but by reason of the order of this Court, the mark "spencer's" is not being used by the plaintiff. This advertisement though strongly commented up by Mr. Mukherjee in support of his contention, but I am of the view the same establishes the good will of the company using the mark "spencer's". The issue, therefore, arises in this application is whether by reason of the order of the Appellate Court, the defendant becomes entitled to use the mark "spencer's". D. K. Sen, J. in his order as noted above, has categorically negatived the claim of the defendant No. 2 to use the mark "spencer's" by reason of a valid assignment, since Sm. Bhakti Dutta transferred her entire right, title and interest in the said trade mark and mark in favour of the company and thereafter she ceased to carry on any trade or business under the said trade mark or name. ( 12 ) MR. Mukherjee placed reliance on the decision in the case of Pink vs. J. A. Sharwood and Co. Ltd. , reported in 1913 RPC 725 in support of his contention that by reason of the order of injunction, question of any good will continue therewith does not and cannot arise. But I am afraid, the above-noted decision does not in any way render any assistance to Mr. Mukherjee at least for the purpose of this interlocutory application. The Chancery Division decision in no uncertain terms held that in the event the plaintiff's business comes to an end, the good will thereof stands determined and the trade mark went with the good will and there were rights remaining in the plaintiff enabling him to maintain the action. This decision is in the same vein as that of the decision of D. K. Sen, J. and as such the defendant No. 2, however, does not get any right to carry on the business using the trade mark or trade name of "spencer's". Incidentally it is to be noted that by reason of the advertisement, it cannot possibly be said that the petitioner has abandoned the mark "spencer's" as contended by Mr. Mukherjee. But advertisement itself records the reason of such discontinuation. There cannot be any abandonment of user of a mark unless there exists positive evidence of such abandonment. In the facts and circumstances of the matter in issue, I am, however, unable to accept the contention of Mr. Mukherjee that there was an abandonment. Mukherjee. But advertisement itself records the reason of such discontinuation. There cannot be any abandonment of user of a mark unless there exists positive evidence of such abandonment. In the facts and circumstances of the matter in issue, I am, however, unable to accept the contention of Mr. Mukherjee that there was an abandonment. The abandonment was due to an order of the Court which itself ex facie appears from the advertisement. The observation of the learned Single Judge in Express Bottlers Services Pvt. Ltd. vs. PEPSICO Inc. and Ors. , reported in (1988) 1 CLJ 337 lends support to the above. ( 13 ) ADMITTEDLY there was an assignment of the mark by Sm. Bhakti Dutta in favour of a newly formed company. That particular company vent into the liquidation and the official liquidator upon consideration assigned the mark onto the plaintiff herein. The plaintiff had been in the business and has been using the mark "spencer's" until the order of injunction was passed by the Appellate Court. Plaintiff's products have been lade synonymous with the mark "spencer's". Incidentally it is to be noted that originally though the aerated water or other non-alcoholic beverages were used by the said Sm. Bhakti Dutta, in recent past the mark, "spencer" was in use by the plaintiff herein. Common People do not trace back the history but only concerned with the recent past and as such in my view, at least a prima facie case has been made out for an order for injunction until the matter is finally disposed of by this Court. In this context reference may be made to Halsbury's Laws of England 4th Edtn. Vol. 48 Article 157 (P. 109), wherein it has been stated : "the abandonment or suspension of trade or the use of a name, mark or other inditia in a trade, will frequently leave a residual reputation and good will in the public mind which the trader may sue to protect at any rate if it is intended to be resumed the trade after a temporary interruption". In this context the observations of James L. J. in Levy vs. Walker (1879) 10 Ch. Div. In this context the observations of James L. J. in Levy vs. Walker (1879) 10 Ch. Div. 436 seem to be very apposite :"it should never be forgotten that in these cases the sole right strain anybody from using any name he likes in the course of any business he chooses to carry on is a right in the nature of a trade mark, that is to say, a man has a right to say, 'you must not use a name, whether fictitious or real-you must not use a description, whether true or not which is to represent, or calculated to represent, to the world that your business is my business, and so, by a fraudulent misstatement, deprive me of the profits of the business which would otherwise come to me. ' An individual plaintiff can only proceed on the ground that having established a business reputation under a particular name, he has a right to restrain anyone else from injuring his business by using that name. " ( 14 ) IT is to be noted that while dealing with an application for interlocutory relief specially in an action for protection of good will and reputation as regards the trade name or mark, the Law Court must consider the entirety of the matter in issue on the basis of fairness, justice and common sense in relation to the whole issues of fact and law which are relevant the particular case. Considering the above and considering the matter in its entirety, I am of the view that interest of justice demands that an interlocutory order of injunction ought to be passed in the facts and circumstances of the matter under consideration. ( 15 ) IN the premises, let there be an order in terms of prayer (a) of the Notice of Motion. ( 16 ) BY reason of the order of stay of the earlier order, dated 4th October 1988, it is only natural that the respondent herein has been carrying business of manufacturing non-alcoholic beverages under the mark "spencer's" and since the goods in question are perishable in nature, the respondent would be at liberty to sell the stock already manufactured and bottled. Full particulars whereof, however, will have to be sent to the Advocate-on-Record for the plaintiff. But it is made clear that no further manufacture or sale can be effected thereafter. Full particulars whereof, however, will have to be sent to the Advocate-on-Record for the plaintiff. But it is made clear that no further manufacture or sale can be effected thereafter. Cost of this application be costs in the cause. ( 17 ) IN the view I have taken, there win be no order in the other a application filed by the defendant. Each party to pay and bear its own costs. Application allowed.