Hon'ble BARDHAR, J.—Instant appeal has been filed by the plaintiff appellant firm against the order dated 03.03.2016 passed by learned Additional District Judge No.1, Sriganganagar in Civil Misc. Case No. 2/2016 ‘M/s Raj Soda Water vs. M/s Royal Rose Industries’ whereby, the application of the plaintiff appellant under Order 39 R 1 & 2 CPC alongwith the suit has been rejected. 2. Succinctly stated facts of the case are that plaintiff firm preferred a civil suit bearing No. 02/2016 for permanent injunction for passing off action of trademark, rendition of accounts and damages alongwith an application for temporary injunction under Order 39 Rule 1 & 2 CPC. It was averred in the plaint that plaintiff appellant has been undertaking the business of manufacturing and trading soda water, cold drink and various types of syrups (sharbat) under the brand name/trademark “RAJ” which was part of its original name Deshraj and thereby acquired substantial goodwill amongst its customers. It was averred in the plaint that after death of Deshraj, his wife Smt. Sheela Devi executed an authority letter dated 11.01.2000 whereby, she exclusively permitted her family members to use the trademark/brand name “RAJ” in relation to any company or firm incorporated by them to undertake the business of soda water, cold drinks and Sharbat. However, in the year 2016, more particularly January, 2016, the appellant came to know that defendant respondent has started using the exactly same trademark “RAJ” in relation to manufacturing and selling of similar goods to that of the appellant in the city of Suratgarh and neighbouring cities. It was further averred that since the respondent was the subsequent user of the same trademark “RAJ”, it has created confusion and deception in the mind of customers of plaintiff appellant firm. 3. It is further stated in the plaint that the defendant respondent has started using exactly the same packing label, color combination, punch line, placement of word, design and presentation, overall get up in combination with the trademark “RAJ” and the action of the respondent defendant is noth-ing but passing of the trademark “RAJ” and the good will of the appellant firm. 4. 4. In support of application under Order 39 Rule 1 & 2 CPC, it was stated by the appellant plaintiff that if the respondent defendant is not restrained from passing off the trademark “RAJ”, it will not only cause financial loss but will cause loss of goodwill to the appellant which cannot be compensated through damages. 5. The respondent defendant filed reply to the application under Order 39 rule 1 & 2 CPC and stated that defendant is a compendious name and cannot be sued. It was stated that plaintiff appellant is neither a prior user of trademark “RAJ” nor it is a registered trademark and thus, plaintiff appellant does not have any right to institute the suit. 6. After hearing both the parties, learned trial Court rejected the application filed by the appellant firm under Order 39 Rule 1 & 2 CPC for grant of temporary injunction. 7. Learned counsel for the appellant argued that the court below has failed to appreciate the basic parameters for grant of temporary injunction i.e. prima facie case, balance of convenience and irreparable loss. It is argued that learned court below has misconstrued the authority letter dated 11.1.2000 as an assignment under Section 42 of Trademarks Act, 1999 whereas, vide authority letter dated 11.01.2000, the proprietor of plaintiff appellant firm has exclusively permitted her family members to use the trademark “RAJ” for the firms and companies only when they get engage in the business of soda water, cold drink and sharbat and it was no where the intention of the proprietor of the appellant firm to dilute the established and earned goodwill of trademark “RAJ” by allowing to use in other business. Thus, the learned court below has committed an error in considering the authority letter dated 11.01.2000 as an Assignment under Section 42 of the Trademark Act, 1999. 8. Learned counsel for the appellant while placing reliance on the judgment rendered in the case of Cadila health Care vs. Cadila Pharmaceuticals Ltd reported in AIR 2001 SC 1952 contended that Sub-section 2 of Section 27 provides that the Act shall not 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 and requirement of registration for passing off action is irrelevant. It is argued that passing off action depends upon the principle that nobody has a right to represent his goods as the goods of somebody. It is submitted that the learned court below has failed to appreciate that the style, packing label, color combination, punch line, placement of word, design and presentation, over all get up in combination with the trademark “RAJ” as used by the defendant respondent prima facie goes to show that the same has been adopted for same/similar goods in order to deceive the customer and trade channels of the appellant., therefore, the order impugned dated 03.03.2016 passed by the learned court below is liable to be quashed and set aside. 9. Per contra, learned counsel for the respondent argued that plaintiff appellant failed to establish that the firm is the prior user of the said trademark “RAJ” nor it is a registered trademark. In the reply filed to the temporary injunction application, it has been specifically stated that brand name “RAJ” was found to be registered in the name of Shaukat Haji Sulemar, therefore the plaintiff appellant has failed to prima facie establish that he has been the prior user of the trademark “RAJ” and therefore, the learned court below has rightly construed the authority letter dated 11.01.2000 as an “Assignment” under Section 42 of Trademark Act and in the light of Section 42 of the Trademark Act, the authority letter support the case of the respondent defendant and therefore, the application under Order 39 Rule 1 & 2 CPC has rightly been rejected by the learned trial court. 10. I have heard learned counsel for the parties and perused the impugned order of the Court below. 11. Indisputably “RAJ” is not registered trademark in favour of plaintiff appellant firm under the Statute and a proprietorship firm having registration number under the Statute has exclusive right to use the trademark and no one else can be permitted to use such trademark separately or independently or in a manner which is identical and deceptive. 12. In the matter in hand, the suit has been filed on the ground of continuous use of brand name/ trademark “RAJ” since 1960 and that the said trademark has acquired exclusivity for the plaintiff appellant in relation to business of manufacturing and trading the soda water, cold drink and sharbat. 12. In the matter in hand, the suit has been filed on the ground of continuous use of brand name/ trademark “RAJ” since 1960 and that the said trademark has acquired exclusivity for the plaintiff appellant in relation to business of manufacturing and trading the soda water, cold drink and sharbat. The contention of the appellant plaintiff is that the defendant respondent was the subsequent user of the same trademark “RAJ” and that too in the exactly same packing label, color combination, punch line, placement of word, design and presentation, overall get up in combination with trade mark “RAJ” and the said deceptively similar packaging has caused deception in the mind of the customers. In support of the aforesaid contention, the plaintiff appellant failed to produce any sufficient material on record before the trial court which prima facie reveal that the plaintiff appellant is the prior user of the said trademark “RAJ” and defendant respondent adopted deceptive similarity. The trial court in its order has specifically observed regarding priority in adoption and use of trademark, the plaintiff has failed to prima facie show that he is the prior user of trademark. 13. Hon’ble Supreme Court in the case of Cadila Health Care Ltd (Supra) has mentioned certain factors to be considered in an action for passing off on the basis of unregistered trademark for deciding the question of deceptive similarity in para 42 of the judgment which reads as under :- “42. Broadly stated in an action for passing off on the basis of unregistered trade mark generally for deciding the question of deceptive similarity the following factors to be considered: a) The nature of the marks i.e. whether the marks are word marks or label marks or composite marks, i.e. both words and label works. b) The degree of resembleness between the marks, phonetically similar and hence similar in idea. c) The nature of the goods in respect of which they are used as trade marks. d) The similarity in the nature, character and performance of the goods of the rival traders. e) The class of purchasers who are likely to buy the goods bearing the marks they require, on their education and intelligence and a degree of care they are likely to exercise in purchasing and/or using the goods. d) The similarity in the nature, character and performance of the goods of the rival traders. e) The class of purchasers who are likely to buy the goods bearing the marks they require, on their education and intelligence and a degree of care they are likely to exercise in purchasing and/or using the goods. f) The mode of purchasing the goods or placing orders for the goods and g) Any other surrounding circumstances which may be relevant in the extent of dissimilarity between the competing marks.” 14. Further in paragraph 43 of the said judgment, Hon’ble Supreme Court has held that weightage to be given to each of the aforesaid factors depends upon facts of each case and same weightage cannot be given to each factor in every case. 15. In view of above, this Court is of the opinion that the issue whether the plaintiff appellant is the prior user of trademark “RAJ” or not, so also the question with regard to deceptive similarity on the basis of general factors specified by the Hon’ble Supreme Court in the case of Cadila Health Care (supra), can be decided only after appreciation of evidence to be led by both the parties during trial of the suit and at this stage, on the basis of material available on record, the plaintiff appellant has prima facie failed to show that he is the prior user of the trademark “RAJ” and that the said trademark is a registered trademark under the Statute and he has exclusive right to use the same. 16. In view of above, I find no error in the impugned order dated 03.03.2016 passed by the learned Additional District Judge No.1, Sriganganagar rejecting the application under Order 39 Rule 1 & 2 CPC. Hence, this appeal is hereby dismissed.