J.K. Mehra, J.

1. The petitioner had adopted the trade mark RAINY in respect of soaps and they are the proprietors of this trade mark. It is alleged that the defendant has dishonestly copied the trade mark of the plaintiff and have started applying to their soaps without any authority and to trade upon valuable goodwill of the plaintiff. The fact that the defendant firm is not the proprietor of the trade mark RAINY and it is the plaintiff who is the first to use and adopt the trade mark and is the proprietor of the trade mark is clearly established from the fact that one Mr. Pradeep Kumar Arora son of one of the partners of defendant namely Mr. Ram Saran Arora was an employee of the plaintiff partnership firm when the trade mark RAINY was adopted. That particular person resigned from the job of the plaintiff and after leaving their employment joined his father in the business of defendant and thereafter defendant started using the said trade mark of the plaintiff RAINY. These facts came out in response to Court questions asked from the said individual which was recorded in the Court when his aforesaid father was also present in the Court. He admitted that he is, the son of one of the partner of the defendant and further admitted that originally the plaintiff had invented this mark, but because they were not continuously using it and had abandoned it after 1988-89 and that he after leaving the employment of the plaintiff adopted the said mark through defendant and thereafter has been using it openly. From the documents filed by the plaintiff it appears that there was a gap of certain period after 1988 before the plaintiff started using the trade mark RAINY. Therefore, it cannot be accepted that there was abandonment of Trade Mark by plaintiff. A break in the user does not amount to abandonment. In such circumstances, defendant could not claim any entitlement to use the plaintiffs mark. A reference in this behalf be made to the observations of Honble Supreme Court in the case of State of U.P. v. Ram Nath reported as AIR 1972 SC 232 [LQ/SC/1971/612] quoted herein below:-

It does not however entitle him to use a trade mark whether it is current or has been removed from the register, or has been abandoned or even if it has never been initially registered but has acquired the currency of a trade mark.

2. The defendants other main plea is that they are honest concurrent users of the trade mark RAINY, that is to say that they had adopted the trade mark honestly and have been using the same openly and concurrently with that of the plaintiffs mark. The condition precedent for the success of any such plea is that the adoption of the mark is honest. Unless the adoption is honest no amount of user can legitimise the adoption and use in the absence of acquiesce or consent of the proprietor of the trade mark, more so when the proprietor of the mark who is in the same trade has started using itself the said mark though after a certain gap of time.

3. The very fact that the defendant adopted a mark which to their knowledge had already been used by the plaintiff for the same product for which the defendants had adopted it shows that the adoption was not honest and that the defendant cannot claim any proprietory right over the said trade mark. The fact that for three years the plaintiff did not manufacture further lots of soap under the trade mark RAINY does not in any way take away or dilute their claim to be the proprietor of the mark being the first one to invent and use. The defendants case is not covered by Section 33 of the Trade and Merchandise Marks Act, 1958. Neither side has got its mark registered so far. In that view of the matter one has to view the case in the light of the judgment in the case of B.K. Engineering Company v. U.B.H.I. Enterprises (Regd), Ludhiana and Another reported as AIR 1985 Delhi 210=27 (1985) DLT 120 (DB). wherein it was held that trading must not only be honest but must not even unintentionally be unfair. Reference in this behalf may also be made to the case of Uttam Singh & Sons Vs. Registrar of Trade Marks, reported as AIR 1977 Del 1 [LQ/DelHC/1976/103] . The defendant has cited various authorities in support of the contention that in passing off action injunction should not ordinarily be granted. The facts of this case are quite distinct from those in the cases cited.

4. In the circumstances, I find that the user of the trade mark by defendants is not honest. Plaintiffs are stated to have taken action only after coming to know that the trade mark RAINY was being used by the defendants when the defendants advertised their mark in the newspaper. Thus it also cannot be said that the plaintiffs had acquiesced into the user of the trade mark RAINY by the defendants. They admittedly never gave consent to the said user by the defendants. In the circumstances, the defendants have no right to use the trade mark RAINY.

5. In the light of the above discussion, I think a prima facie case has been made^ out in favour of the plaintiff and against the defendants and the balance of convenience is also in favour of the plaintiff and as such I grant the ad interim injunction. The continuance of the use of the mark RAINY by the defendants will result in serious prejudice and loss to the plaintiff (who has since resumed the use of its Mark), which cannot be adequately compensated in terms of money. Therefore, I grant ad interim injunction in favour of the plaintiff and hereby restrain the defendants from using the trade mark RAINY till the disposal of the suit.

6. Any observation made herein above would not be deemed to be an expression of opinion on the merits of the case of either party in the suit. In the circumstances of the case, there will be no order as to costs.

I.A. stands disposed of.