K. J. SHETTY, J. ( 1 ) THE appellant preferred this miscellaneous first appeal from the order, dated 27th september, 1989 passed on i. a. nos. I and iii in o. s. no. 443 of 1989 by the viii additional city civil judge, Bangalore city, vacating ex pane temporary injunction passed in the case. ( 2 ) FACTS in brief are:-the plaintiff-appellant has been carrying on business in the manufacture and sale of ice-cream and allied products in Bangalore under the trade name "kwality ice-cream company" and under the trade mark inter alia consisting of the stylished word 'kwality' and the device of sea-bird perching on waves and certain other get up, design and colour-scheme, eversince he purchased the going concern from the legal heirs of one k. d. kapur, with All its goodwill, assets and liabilities, trademark and All other appurtenances, including the leasehold right of the business premises no. 19, kumara krupa road, bangalore-1, under a sale deed, dated 19-8-1969. He has been selling his ice-cream in the State of Karnataka and Kerala exclusively under the said trade mark and name. He has large and ever increasing sales of his product under the mark and his gross turnover for the year 1988-89 exceed Rs. 49 lakhs has popularised his business and mark by wide and varied advertisements; and as a result, the trade name and mark are associated with his product only and none else. He has also applied for registration of bis trade mark before the trade mark registry under application no. 383328 in class 30 which is pending. That product has trade name and mark. He filed a suit before the city civil court for passing off against one kwality ice-creams company (madras) ltd. , which commenced business in Bangalore using the trade mark 'kwality' and he obtained temporary injunction and restrained user of the offending mark in o. s. no. 3553 of 1981, which is pending and the injunction is still in force. It is averred that on 18-1-1989 he noticed an advertisement in the 'deccan herald' of the same date wherein one 'kwality frozen foods pvt. Ltd. , bombay' (the defendants) is proposing to distribute 'kwality' ice-cream not manufactured or sold by him, to children and adults at the west end hotel on 21st and 22nd january, 1989. It is averred that on 18-1-1989 he noticed an advertisement in the 'deccan herald' of the same date wherein one 'kwality frozen foods pvt. Ltd. , bombay' (the defendants) is proposing to distribute 'kwality' ice-cream not manufactured or sold by him, to children and adults at the west end hotel on 21st and 22nd january, 1989. The advertisement and the proposed activities referred to therein will undoubtedly result in passing of ice-cream which is not manufactured or sold by the plaintiff as his ice-cream and thereby cause deception and confusion of the public. Unless the defendants are at once restrained by means of an order of temporary injunction pending disposal of this suit, the defendants will use the offending trade name and mark 'kwality' thereby causing irreparable damage to plaintiff's goodwill and reputation. The plaintiff is entitled to the exclusive use of the said trade mark comprising the stylished words 'kwality'. The defendants have never used this mark in this State of Karnataka and Kerala particularly in the city of bangalore. Along with the suit, the plaintiff also filed an application for grant of temporary injunction. ( 3 ) THE application was resisted by the defendant and they filed la. Iii forvacating the ad-interim order of temporary injunction granted by the court. It is the case of the defendants that they are having office at Bombay and do not have any office at bangalore, which fact is well known to the plaintiff. The plaintiff's application is entirely misconceived and is not maintainable. No injunction against the registered proprietors who are using their registered trade marks can be granted under the law, besides the plaintiff has kept back full information from the court and did not state that the defendants are using their registered trade marks. It is further stated that the plaintiff has also failed to disclose that the defendants and their predecessors in title are using the trade mark 'kwality exactly' in the same style for the last above five decades, inspite of which the plaintiff has made his claim to be the proprietor thereof. In fact, the plaintiff has tried to keep back the vital information from the court. It is further alleged by the defendants that the plaintiff is well aware that the defendants and their predecessor in interest are using 'kwality' trade mark for the last about five decades. In fact, the plaintiff has tried to keep back the vital information from the court. It is further alleged by the defendants that the plaintiff is well aware that the defendants and their predecessor in interest are using 'kwality' trade mark for the last about five decades. They are the registered proprietors of trade mark nos. 178269,255297 and 255298. The plaintiff has suppressed before this court the fact that a suit is pending against him in respect of the very subject matter and hence, is guilty of suppression of facts, and that another suit filed against him amongst others at the district and sessions court, at mysore now directed to be transferred to Bangalore by virtue of the order of this court is also substantially the very material in respect of which the suit now has been filed by him. It is further stated, that no cause of action has arisen for the maintainability of the suit. It is also alleged, that the suit is filed against the plaintiff with regard to the infringement of their registered trade marks referred to above, is still pending in the court. The matter in dispute in the present suit as well as in the earlier suit no. 1 of 1983 is directly and substantially the same. As such, the defendant prays for dismissal of the present application filed by the plaintiff under order 39, Rules 1, 2 and 3 read with section 151, cpc. ( 4 ) IN the affidavit filed by the defendant in support of the application i. a. no. Iii,it is stated that the plaintiff has deliberately failed to bring out to the court that the label and the word 'kwality' which he is using and on the basis of which he has filed the present suit were already registered exactly in the same get up, lay out, writing style in favour of the defendants and they were the registered proprietors thereof. Further, the defendant contended that the use of the label by Mr. K. d. kapoor or his legal representative was and is an infringement of the defendants registered trade mark and amounted to passing off. Any one's use of label 'a' was dishonest from the very beginning and no amount of user could purify it. Further, the defendant contended that the use of the label by Mr. K. d. kapoor or his legal representative was and is an infringement of the defendants registered trade mark and amounted to passing off. Any one's use of label 'a' was dishonest from the very beginning and no amount of user could purify it. The purchase and use of the plaintiff is also dishonest from the very inception and for that reason the defendants have filed the said three suits. The labels, cartons and advertisement material, invoices, printing bills, caution notices etc. , produced with plaint are copies of the defendants trade marks and cartons which have been taken out of their trade marks. The use of words 'kwality' and other features have been copies from the defendants trade marks. The defendants trade mark are old trade marks. Further, it is contended by the defendant that the plaintiff has no where shown as to how be or his predecessor in title have hit upon an exactly similar trade mark, labels and slogan, insign etc. , which the defendants had adopted long back and were their original designs. The defendants have already exercised their statutory right by filing the suit against the plaintiff and claiming statutory remedy of perpetual injunction for infringement and passing off, and the defendants are also taking their statutory defence in the suit. ( 5 ) THE plaintiff has filed his objection to i. a. no. Iii and contended that the suito. s. no. 1 of 1983 filed in the district court of calicut, has no relevancy to the case on hand, inasmuch as the defendants admittedly have no registration of their marks in the State of kerala. So also a similar suit o. s. no. 63 of 1987 on the file of the district court of mysore has also no relevancy for the case, as there is no interim injunction obtained against the plaintiff who is impleaded as a licensor therein. In respect of o. s. no. 879 of 1987 pending in the city civil court, Bangalore cchno. 8, the said fact is mentioned in para 13 of the affidavit filed by the plaintiff in support of the interim injunction and no interim injunction has been obtained and it is not relevant for the case at all. It is further stated by the plaintiff that the defendants have no sales in kamataka, particularly in bangalore. 8, the said fact is mentioned in para 13 of the affidavit filed by the plaintiff in support of the interim injunction and no interim injunction has been obtained and it is not relevant for the case at all. It is further stated by the plaintiff that the defendants have no sales in kamataka, particularly in bangalore. Their registration is delimited to certain territories only and not to the whole of India at all. Their claim of advertisement of their marks All over India, is evidently false and therefore, they cannot claim that they have used their marks in Karnataka, particularly in bangalore. Hence, the plaintiff prays for dismissal of the application filed by the defendants. ( 6 ) FURTHER, the plaintiff also filed rejoinder to the objection to the defendantsapplication for interim injunction, and contended that section 28 of the trade and merchandise mark act dealing with the right conferred by registration clearly states that the exclusive right to the use of the mark conferred by registration is subject to a number of conditions inter alia; (1) that the registration must be valid and (2) the rights are subject to the other provisions of the Act, which includes section 27 (2) which reads as follows:-"nothing in this Act, shall be deemed to affect rights of action against any person for passing off goods as the goods of another persons or remedies in respect thereof. "he contended that registration marks is no defence against an action for passing off. In fact, the plaintiff has filed an application before the High Court of Bombay for rectification of the registered marks by deleting the territories of Karnataka from the scope of registration on the ground inter alia of non-user in the said state under section 46 of the act. It is further maintained by the plaintiff that he has acquired property rights over the trade mark 'kwality' by virtue of continuous exclusive and uninterrupted use of their mark in the State of Karnataka including the city of Bangalore on the plaintiffs own right during the last 20 years. The plaintiff and his predecessors were the first to use the trade mark in Karnataka, whereas the defendants have never used their mark in this state. ( 7 ) THE lower court on the basis of the pleadings formulated the following pointsfor consideration:-1. Whether the plaintiff has made out prima facie case? 2. The plaintiff and his predecessors were the first to use the trade mark in Karnataka, whereas the defendants have never used their mark in this state. ( 7 ) THE lower court on the basis of the pleadings formulated the following pointsfor consideration:-1. Whether the plaintiff has made out prima facie case? 2. Whether the balance of convenience lies in favour of the plaintiff? 3. If the ex-parte ad-interim order of temporary injunction granted in favour of the plaintiff on 21-1-1989 is not continued, whether the plaintiff will be put to great hardship and inconvenience which cannot be compensated in terms of peculiarly measures? ( 8 ) THE lower court after considering the respective contention of the parties andthe materials has come to the conclusion that the plaintiff has not made out a prima facie case and further held, that the plaintiff would not suffer substantial loss or irreparable injury if the temporary injunction granted is not continued. As such, the application of the plaintiff was dismissed with costs and the application filed by the defendant under order 39, rule 4, cpc was allowed and the ex pane ad-interim order of temporary injunction granted in favour of the plaintiff by the court on 21-1-1989 was vacated. Hence, this appeal by the plaintiff-appellant. ( 9 ) THE learned counsel Mr. Sreenivasa rao appearing for the appellant hasargued, that the lower court has grossly erred in law in vacating the exparte interim injunction in the facts and circumstances of the case, where plaintiff appellant has exclusively used the suit trade name and mark for over 20 years, and the respondent has never before come into the market in Karnataka, particularly in Bangalore and used its impugned trade name and mark, and so allowing the use of the trade mark by the defendant would cause confusion and deception among the trade and public and lead to passing of goods. It is also contended that the lower court has failed to appreciate that registration of trade mark by the defendant-respondent is no defence in an action for passing off, and the rights conferred by registration do not extend to the use of the registered mark, if such use will lead to passing off. It is also contended that the lower court has failed to appreciate that registration of trade mark by the defendant-respondent is no defence in an action for passing off, and the rights conferred by registration do not extend to the use of the registered mark, if such use will lead to passing off. The lower court has failed to appreciate, that trade mark and good will of business can be acquired by user, and the same can be protected by an action for passing off. The lower court has grossly erred in holding, that an unregistered owner, of a trade mark cannot get an injunction against a registered owner of a trade mark in a passing off action. Such a proposition, if accepted, will render section 27 (2) of the trade and merchandise marks Act, 1958 a nullity. It is also contended that the court below has failed to appreciate that the grant of injunction against the defendant in an action for passing off does not depend upon the outcome of the rectification proceedings pending. In support of his submission, he has relied on the following decisions:-L. Mc. culloch v may, (produce distributors ltd. ,) 1948 (65) rpc 58; 2. J. b. williams co. V h. bronnlay and co. Ltd. , 1909 (26) rpc 765; 3. Consolidated food corporation v brandon and co. Pvt. Ltd. , AIR 1965 bom. 35 ; 4. T. Oertli v e. j. bowman (london) ltd. , 1959 rfc 1. ( 10 ) THE respondent's counsel has controverted the submissions made by thelearned counsel for the appellant and submitted that the lower court has rightly come to the conclusion, that the plaintiff has not established zprima facie case for grant of temporary injunction. Further, he has contended that the plaintiff being an unregistered trade mark owner, cannot restrain the registered trade mark owner to market its products within the area and the defendant is a manufacturer of quality ice-creams and products and he is a registered trade mark owner and he has got every authority to market its goods within the territory of karnataka. The lower court has rightly rejected the application of the plaintiff for grant of temporary injunction and allowed the application of the defendant under order 39, rule 4 of the cpc. The lower court has rightly rejected the application of the plaintiff for grant of temporary injunction and allowed the application of the defendant under order 39, rule 4 of the cpc. ( 11 ) IT is manifest from the facts canvassed above, that appellant plaintiff hasclaimed an ad-interim injunction on the ground, that the respondents-defendants are passing off and are selling their goods in the market under the trade mark 'kwality' of which the plaintiff is the proprietor. It is relevant to refer section 27 (2) of the act and examine the same, since we are concerned with the construction of the said section, which reads as follows:- "27. No action for infringement of unregistered trade mark. (l)no person shall be entitled to institute any proceeding to prevent, or to recover damages for, the infringement of an unregistered trade mark. (2)nothing in this act shall be deemed to affect rights of action against any person for passing-off goods as the goods of another person or the remedies in respect thereof. The above section 27 (2) came up for interpretation before different high courts in India and in the court of england in number of cases. In mc. Culloch v may (products distributors) ltd. , 1948 (65) rpc 58, wyon parry j. , has observed thus:-"it is of the essence of an action for passing off to show, first, that there has been an invasion by the defendant of a property right of the plaintiff, in respect of which the plaintiff is entitled to protection, and, secondly, that such invasion has resulted in damage or that it created a real and tangible risk that damage will ensue. "in yet another case, in j. b. williams co. V h. Bronntey and co. Ltd. , 1909 (26) rpc 765, lord cozens hardy, has observed thus:-"what is it necessary for a trader who is plainiiff in a passing off action to establish? It seems to me that in the first place he must, in order to succeed, establish that he has selected a peculiara novel design as a distinguishing feature of his goods, and that his goods are known in the market, and have acquired a reputation in the market, by reason of that distinguish feature, and that unless he establishes that, the very foundation of his case fails. "section 27 (2) has also come up for consideration in a suit before the Bombay High Court reported in consolidated food corporation v brandon and co. Pvt. Ltd. , AIR 1965 bom. 35 wherein shah, j. , has observed thus:-"it is sufficient if the Article with the mark upon it has actually become a vendible Article in the market with intent on the part of the proprietor to continue its production and sale. It is not necessary that the goods should have acquired a reputation for quality under that mark. Actual use of mark under circumstances as showing an intention to adopt and use it as a trade mark is the test rather than the extent or duration of the use. " it was further observed in para 27 of the case alluded to above. "the trade mark exists independently of the registration which merely affords further protection under the statute. Common law rights are left wholly unaffected. Priority in adoption and use of a trade mark is superior to priority in registration. " it is crystal clear from the authorities alluded to above that an applicant for an action on the basis of the passing off must prove the following:- (I) that the trade mark which he has been using on the goods manufactured by him has assumed a vendible character. (ii) he has been using the said trade mark from before it was used by the defendant (iii) his goods are identified and recognised by the use of said trade mark and in case the defendant is allowed to use the said trade mark or a trade mark which is deceptively similar to the said trade mark it is likely to cause irreparable loss and damage to him. (iv) there is every likelihood that the impugned trade marks will invade and offend the property rights of the applicant. "in p. Narayanan's book on law of trade marks and passing off, who is an authority on trade mark law, at para 25. 01, it is stated:"passing of is not defined in the act. It is referred to in sections 27 (2), 10s (c) and 106. "in p. Narayanan's book on law of trade marks and passing off, who is an authority on trade mark law, at para 25. 01, it is stated:"passing of is not defined in the act. It is referred to in sections 27 (2), 10s (c) and 106. Section 27 (2) states that the rights of action against any person for passing of goods as the goods of another person or the remedies in respect thereof are unaffected by the provisions of the act section 105 (c) refers to jurisdiction of courts to try suits for passing off arising out of the use of any trade mark. Section 106 specifies the remedies available in respect of passing off arising from the use of a trade mark. The act is silent about cases of passing off where no goods or no trade mark is involved. Such cases of passing off are also governed by common law. "at para 25. 03 it is stated:-"a trader is not permitted to use any mark, device or other means whereby, although he does not make a false representation to a direct purchaser of his goods, he enables such a purchaser to make a false representation to ultimate purchasers of those goods. Where goods are sold to trade customers who are not themselves deceived but the goods are so marked or got up as to be calculated to deceive ultimate purchasers, the plaintiff's cause of action for passing off is regarded as complete, both at law and in equity as soon as the goods are disposed of to the trade customers. "at para 22. 03 it is stated thus:-"22. 03. Registration does not confer immunity against passing off. The provisions of the act including those of registration do not affect rights of action against any person for passing off goods as the goods of another or the remedies in respect thereof. Thus in an action for passing off the defendant cannot plead that the mark he is using, which has resulted in passing off is registered. This would appear to follow from the use of the words 'subject to the other provisions of the act' in the opening of section 28 (1) defining the rights conferred by registration. The "other provisions of the act" would obviously include section 27 (2) dealing with the rights of action for passing off. Section 27 (2) overrides the provisions of section 28. The "other provisions of the act" would obviously include section 27 (2) dealing with the rights of action for passing off. Section 27 (2) overrides the provisions of section 28. " ( 12 ) WITH the above background, let me now see how far the appellant in theinstant case has succeeded in proving the above laid ingredients. ( 13 ) IT is an undisputed fact that the appellant has been carrying on the business inthe manufacture and sale of ice-cream and allied products under the trade name 'kwality ice-cream company' and under trade mark 'kwality' since 19-9-1969. He has been selling bis ice-cream in the State of Karnataka and Kerala exclusively under the said trade mark. He has large and ever increasing sales of his product. In order to protect his trade name and mark, he filed a suit against one kwality ice cream company, Madras which commenced business in Bangalore using the trade mark 'kwality' and he obtained an order of temporary injunction and restrained user of offending mark, in o. s. no. 3533 of 1981. It is contended by the petitioner, that it was the first time the respondent-defendant on 18-1-1989 advertised in 'deccan herald' wherein one kwality frozen foods pvt. Ltd. , bombay, (the first defendant) is proposing to distribute 'kwality' ice-cream, not manufactured and sold by him. It is the case of the petitioner that the advertisement and the proposed activities referred to therein, would result in passing of ice-cream which is not manufactured or sold by the petitioner as his ice-cream. ( 14 ) THE case of the respondent-defendant are put forth in the affidavit in supportof i. a. no. Iii for vacating the ad-interim order of temporary injunction is that they are based at Bombay company in the business of ice-creams by using the trade mark 'kwality exactly' in the same style for more than five decades. The use of the trade mark by the predecessor-in-title of the petitioner-plaintiff was and is itself infringement of the defendants trade mark and amounted passing off by the petitioner-plaintiff. The petitioner plaintiff has in his objections categorically stated, that the respondent-defendant had, and have no sales in Karnataka, particularly in bangalore. Their registration of trade mark referred above is delimited to certain territories only and not to the whole of India at all. The petitioner plaintiff has in his objections categorically stated, that the respondent-defendant had, and have no sales in Karnataka, particularly in bangalore. Their registration of trade mark referred above is delimited to certain territories only and not to the whole of India at all. Thus, it is undisputed that the petitioner has been carrying on the business under the trade name 'kwality ice-creams company' under the trade mark 'kwality' since 1969. The respondent defendant no doubt was carrying on the business of ice- cream under the trade mark 'kwality exactly' at bombay. At no time, the respondent-defendant carrier on the business of ice-cream under the said trade mark 'kwality exactly; in the State of Karnataka, except for the first time issued an advertisement in the 'deccan herald' kwality frozen foods pvt. Ltd. , on 18-1-1989 proposing to distribute 'kwality' ice-cream at bangalore. ( 15 ) IN the instant case, it is the case of passing off action, not a suit forinfringement of registered trade mark. In an action for passing off, the plaintiff will have to prove (prima facie establish) that defendants used the registered trade mark in such a manner to deceive the plaintiff's customers. The lower court has proceeded on the basis, that it was a case of infringement of trade mark, and has held that "it is well settled that party who seeks an order of temporary injunction must have legal right and interference of the court is necessary to maintain the status quo between the parties. Admittedly, when the plaintiff is not a registered trade mark owner and the defendant being a registered trade mark owner, I am of the opinion that the plaintiff has no legal right in seeking an order of temporary injunction. " in my opinion, the view of the lower court, that the plaintiffs suit is one for infringement of trade mark, and the defendant is the owner of registered trade mark, entitled to market his product and the plaintiff has no legal right to complain the passing off the goods, and has no legal right in seeking an order of temporary injunction, is neither sound nor tenable in law. ( 16 ) IT is well-settled that where the plaintiffs trade mark is not registered at therelevant point of time of user, it is the prior use which would determine the rights claimed by contesting parties. ( 16 ) IT is well-settled that where the plaintiffs trade mark is not registered at therelevant point of time of user, it is the prior use which would determine the rights claimed by contesting parties. Thus the plaintiff has to show (prima facie establish for grant of interim injunction) user of the mark prior in point of time to the impugned user by the defendant. The registration of the said mark or similar mark prior in point of time to user by the plaintiff is irrelevant, in an action for passing off and the mere presence of the mark in the register maintained by the trade mark registry does not prove its user by the person in whose name the mark is registered, and is irrelevant for the purpose of deciding the application for injunction. ( 17 ) THE petitioner-plaintiff has produced number of documentsannexure- a,specimen of labels namely copy of the sale deed dated 19-8-1969; statement of advertisement expenses; copy of advertisement in trade journals; corporation licence; kst and cst registration certificates and urged that he has become the proprietor of trade kwality ice-cream with the trade mark 'kwality' on the basis of prior user in time since he has been using it since 1969 and selling the goods ice-cream under the trade mark 'kwality' in the State of Karnataka, particularly in bangalore. ( 18 ) THE learned counsel for the respondent contended, that the alleged prior userby the petitioner-plaintiff of the impugned trade mark does not confer on the petiiioner-plaintiff any proprietory right. The contention of the learned counsel for the respondent does not hold goods, and it can be brushed aside without any difficulty. ( 19 ) THE petitioner has placed on record that the registration trade mark 178269,the earliest registration which was registered in the name of partners including Mr. K. d. kapoor from whose heirs and successors-in-business, the plaintiff bad purchased the trade mark 'kwality' label along with the good will of business and also the documents, that the defendants had never used any trade marks containing the word 'kwality' in the State of Karnataka or Kerala except for the first time an advertisement in deccan herald on 18-1-1989 about the proposed action of sale of ice-cream under the trade mark 'kwality'. There was an admission of the defendants in para 5 of their statement, that they have no place of business in Bangalore which speak eloquently, that they have not sold their product at any time prior to their giving advertisement in deccan herald, dated 18-1-1989, announcing the introduction of their products into Bangalore market besides the above, the appellant-plaintiff has placed on record the correspondence, dated 1-11-1971, 23-11-1971, 28-12-1971 and 24-1-1972. These letters addressed to the plaintiff 'kwality ice-cream company, bangalore. The word 'kwality' as part of the trading style, as evidenced, was adopted by the petitioner-plaintiff for the first time in the year 1969. The respondent-defendant used the said 'kwality' as part of their corporate name only in or about the year 1982, and their trade was confined to Bombay and other places, other than Karnataka and Bangalore city. Thus the plaintiff was prior in adoption and use of the 'kwality' mark and prior in using the word 'kwality' as part of the trading style in karnataka. All the above referred documents prima fade show that petitioner-plaintiff has been selling his goods ice-cream in the trade name 'kwality ice-cream' under the trade mark 'kwality' in the market much prior to the registration of the trade mark in favour of respondent-defendant, and the user of the mark prior in point of time to the impugned user by the respondent-defendant. ( 20 ) THE respondent's counsel on the other hand contended, that they haveadvertised in almost All papers in India in order to show and prove, that they have continuously advertised their trade mark, and they have acquired a very good and wide reputation. The learned counsel for the petitioner has pointed out that the respondents-defendants registration is delimited to certain territories and not to the whole of India, and their claim of advertisement of their trade mark All over India is evidently false. To my mind, the documents referred to by the learned counsel for the respondent are of no avail, inasmuch as they themselves have admitted that they have started using the trade mark for the first time by advertising in deccan herald, Bangalore on 18-1-1989 for proposing to sell ice-cream in trade name 'kwality frozen foods pvt ltd. , under the trade name 'kwality' at bangalore. , under the trade name 'kwality' at bangalore. In the instant case, the user of the appellant-plaintiff of the impugned trade mark is prima fade prior to that of the respondent-defendant. ( 21 ) NEXT, it was contended by the respondent's counsel that the passing of actionis an action in deceit and the petitioner-plaintiff had to prove that either there has been an actual passing off or use of the mark by the respondent has actually caused confusion or damage to the petitioner- plaintiff. This contention, in my view, cannot be accepted. ( 22 ) IN the decision reported in t. Oertli vej. Bowman (london) ltd. , 1959 rpc1 it was held :-"we emphasis that this appeal is concerned solely with passing off and not with the infringement of trade mark or patent rights. It is of course essential to the success of any claim in respect of passing off based on the use of a given mark or get up that plaintiff should be able to show that the disputed mark or get up has become by user in this country distinctive of the plaintiff's goods so that the use in relation to any goods of the kind dealt in by the plaintiff of that mark or get up will be understood by the trade and the public in this country as meaning that the goods are the plaintiff's goods. The gist of the action is that the plaintiff, by using the making known the mark or get up in relation to his goods and thus causing it to be associated or identified with those goods, has acquired a quasi proprletory right to the exclusive use of the mark or get up in relation to goods of that kind, which right is invaded by any person who, by using the same or some deceptively similar mark, or get up in relation to goods not of the plaintiff's manufacture, induces customers to buy from him goods not of the plaintiffs manufacture as goods of the plaintiff's manufacture, thereby diverting to himself orders intended for and rightfully belonging to the plaintiff. " ( 23 ) NOW, I come to the question of balance of convenience. " ( 23 ) NOW, I come to the question of balance of convenience. It is true that trademark is a property right, an invention of which should be protected and the balance of convenience would obviously be in favour of the plaintiff who is the first user of the mark vis-a-vis the defendant. In the passing of case, the actual chain of action is that of passing off bis goods as the goods of the plaintiff injures the right of property in the plaintiff. That right of property being his right to the goodwill of his business. This right is to be protected and the balance of convenience is in favour of the person who has established a prima facie right to property. It is well laid principles of law, that where the plaintiff has an established business which is or may be under threat and the defendants have only just started to trade in competition, the balance of convenience would favour protection of the relatively long established against the new interloper. ( 24 ) IT is contented by the learned counsel for the respondent, that there is nothingon record to show that any loss has occasioned to the petitioner-plaintiff. I do not agree. The irreparable injury would be the likely confusion, that may be caused, if the respondents are allowed to use the trade mark. There is every possibility in the absence of injunction order from the court a confusion being caused in the mind of the purchasers to take the goods of the respondents as the goods of the petitioner, and the same is likely to result in irreparable loss or damage to the reputation and good will of the appellant-plaintiff which would be difficult to measure in terms of pecuniary compensation. If the respondents are not restrained by means of an interim order of injunction, they would continue to market their goods with the offending mark. ( 25 ) 1, therefore, accept this appeal and allow the same. I reverse the judgment ofthe lower court and set aside the order and issue an interim injunction against the respondents, their servants and agents from selling, displaying for sale or advertising their goods under the impugned trade mark 'kwality' or any other trade mark identical or deceptively similar to the trade mark of the petitioner 'kwality' or 'kwality ice-cream'. No costs. --- *** --- .