This application for interim injunction pending the disposal of C.S. No. 53 of 1957 is coming up for final order.

The facts are: the plaintiff has been carrying on business in lungis and other handloom textile products under the name and style of Mohamed Aboobacker and Company with his headquarters in George Town, Madras and its branches in Calcutta, Madurai and Qailon. This plaintiff was come to be known as Chank Aboobacker and has adopted his trademark as Chank or Sanghu or Conch. This Conch has been his registered trade mark under six registrations. We are concerned here only with one registered number 91228. This Aboobacker who has been making use of this Conch as his registered trade mark from 1928 under an adaptation of the main Sanghu mark registered this trade main to be affixed to hand-kerchiefs. The plaintiff has been having an extensive business in these handkerchiefs affixed with this trade mark from 11th January 1944 when the mark was registered, and has been widely advertising his products at great expense. This trade mark has been renewed for a period of fifteen years from 11th January 1955.

In these circumstances the plaintiff was informed by people in Bombay in October, 1956, that handkerchiefs which are inferior imitations of his product registered under No. 91/28 were being sold with a reproduction of his Chank and bearing marked identity and close resemblance to it in point and size, device, background, display, design and colour, but bearing the lettering Been Brand.

The word Been has been defined in Websters New International Dictionary, 2nd Edition, Vol. I, as being a Hindi word derived from the word Bina in music and as a variety of Veena and meaning a snakecharmers clarionet-magudi.

The case for the plaintiff is that though this mark is described as a Been it is in reality a pirating of the Conch mark and that a mere look at both the marks will establish it beyond doubt.

Therefore, the plaintiff started to contact the persons pirating his mark and giving no more details of themselves excepting as Satguru Traders, Madras. But all his letters were returned with the endorsement Not found. Returned to Sender. Therefore he complained to the Presidency Magistrate. The Magistrate threw it out on the ground that the evidence was mere hearsay and nothing more.

The exploiters of the Been Brand then disclosed their hand to this plaintiff in an advertisement in the Trade Marks Journal issued on 1st April 1957. The relevant advertisement is in page 76, The user claimed it from 7th August 195

6. The plaintiff thereupon sent a lawyers notice to the address given therein and entered his opposition to the above application. But even this letter was returned as not found. There was no sign board or other indication in the premises mentioned as the address of the defendant. In fact the plaintiff, not to put too fine a point, says that this was a nankewasthe business intended to do nothing mere than pirate and exploit the established trade mark of the plaintiff. This gathers corroboration from the fact that the defendant has not produce his accounts and in fact though he said that a lot of purchases have been made from him all the correspondence he was able to produce before me consisting chiefly of post cards Was trade enquiries from alleged traders of whose substantiality or genuineness or otherwise we do not know.

The defendant, it is found, has even gone one step further, and, on the butter paper cover has added the word Regd. and giving their Madras particular address with their trade name still as Satguru Traders but without their personal names. The addition of the word Regd. meaning registered is undoubtedly a fraudulent description and the explanation of the defendant is that he was informed by his Bombay Solicitor, that his trade mark was sure to be registered and that therefore, he anticipated a little the certain result.

It is in these circumstances that the plaintiff has come forward with this suit against the defendant for infringement of his trade mark and a passing off action and has filed an application for an interim injunction pending the suit.

The case for the defendant is that the Been Brand is not pirating of the Chunk trade mark and that the plaintiff is not entitled to the relief asked for and that in any event the proper interim remedy is not injunction but asking him to maintain accounts.

The principles which should govern the Court in granting or withholding a temporary injunction in trade mark infringement actions are well-settled: See recent decision, Henry Hemmings Ltd. v. George Hemmings Ltd. (1951) 68 R.P.C. 47.As a temporary injunction is merely of a provisional nature and does not conclude the rights of the parties in any way, the Court will exercise its discretion in favour of the applicant only in strong cases. The plaintiff must make out a prima facie case in support of his application for the ad-interim injunction and must satisfy the Court that his legal right has been infringed and in all probability will succeed ultimately in the action. This does not mean, however, that the Court should examine in detail the facts of the case and anticipate or prejudice the verdict which might be pronounced after the hearing of the suit or that the plaintiff should make out a case which would entitle him at all events to relief at the hearing: Colman Ltd. v. Farrow & Co. (1899) 15 R.P.C. 198.; Hoover Ltd. v. Airway Ltd. (1936) 53 R.P.C. 399.; Upper Assam Tea Co. v. Herbert (1890) 7 R.P.C. 183.; Star Cycle Co., Ltd. v. Frankenburg (1906) 23 R.P.C. 337.In fact the Court will not ordinarily grant an interlocutory injunction if a large amount of evidence is necessary to support the plaintiffs case. The proper course in such a case is to ask for the trial of the action. The injury must be actual or imminent: Pinet et Cie v. Maison Pinet Ltd. (1897) 14 R.P.C. 933.Where the defendant disputes the plaintiffs title to the mark or contends that the plaintiff is not entitled to relief by reason of the acquiescence or delay or other estoppel or of the defendants concurrent rights, the Court will be guided by the balance of inconvenience which may arise From granting or withholding the injunction as well as the justice of the cause after considering all the circumstances in the suit. In other words, where the plaintiffs title is disputed or the fact of infringement or misrepresentation amounting to a bar to the action or some other defence is plausibly alleged upon the interlocutory motion, the Court in granting or refusing the interim injunction in guided principally by the balance of convenience that is by the relative amount of damage which seems likely to result if the injunction is granted and the plaintiff ultimately fails or if it is refused and he ultimately succeeds: Read v. Richardson (1881) 45 L.T. 54.; Hommel v. Baker (1903) 20 R.P.C. 801.

As the grant of temporary injunction is governed by equitable principles, the Court will refuse to interfere summarily by such relief notwithstanding the plaintiffs legal rights unless his conduct in the matter is free from blame and there is no acquiescence or other estoppel. The test of acquiescence required to disentitle the plaintiff to an interim injunction need not be strong as is necessary for the refusal of perpetual injunction at the hearing. It is necessary that an application for interlocutory injunction should be made immediately after the plaintiff becomes aware of the infringement of the mark. Improper and unexplained delay is fatal to an application for interlocutory injunction. The interim injunction will not be granted if the plaintiff has delayed interfering until the defendant has built up a large trade in which he has notoriously used the mark: North British Bubber Co. v. Gormully (1894) 12 R.P.C. 17.; Army and Navy Co-operative Society Ltd. (1902) 19 R.P.C. 574,; Hayward Brothers Ltd. v. Peakall (1909) 26 R.P.C. 89,; Yost Typewriter Ltd. (1902) 19 R.P.C. 422.; Royal Warrant Holders Association (1908) 25 R.P.C. 245.On a motion for interlocutory injunction the defendant may offer to give or the Court may ask for an undertaking and keep account of the sales until the decree in the suit is passed and the plaintiff may accept the undertaking in lieu of an interlocutory injunction. It is for the Court to decide whether in the given case the relief should be mould to suit the exigencies of the case and grant a interlocutory injunction or accept the undertaking by the defendant to keep accounts of the sales until the decree in the suit is passed. Interim injunction will be limited as closely as possible to what is sufficient to attain that end and it is only granted upon the plaintiff undertaking to abide by any order of the Court as to damages for the loss, if any, occasioned by it to the defendant should it turn out at the hearing that it ought not to have been granted. Enforcement of injunction is by committal or attachment or fine or costs. Committal is the proper remedy for doing a prohibited act and attachment is the proper remedy for neglecting to do some act ordered to be done.

Bearing these principles in mind, if we examine the facts of this case there cannot be the slightest doubt that the plaintiff is entitled to the interim injunction asked for. The plaintiff has been exploiting this Conch mark from 1928. In fact, he has himself come to be known as Chank Aboobacker. The trade mark which is the subject matter of the controversy was registered in 1944 and it has been again renewed for a period of fifteen years. The plaintiff has been widely advertising his products. He has opened many branches and has got an assured sale. It is in these circumstances that the defendant, who is stated to be a refugee from Karachi, has started using the mark in question from 195

6. We have no evidence worth mentioning about his goods having found a market. His accounts are not forth coming. His address is nebulous.

There is no ostensible abode for this business. His application itself to have his mark registered has been opposed. But with optimism worthy of a better cause he has already printed on his butter covers that this trade mark has been registered. The mark itself, as can be seen by a comparison, is a thorough imitation. It cannot be got over by saying that it is a snake-charmers magudi placed on the ground in a horizontal position. It really the defendant wanted only a magudi to be his trade mark there was nothing to prevent him from making it vertical or inclined vertically which is the position in which a magudi is always played. In fact I suggested that this futile litigation could be avoided by a slight alteration of the device, a position which would avoid confusion and passing off the wares of one as the wares of the other. The defendant was averse to making any alteration because that would apparently defeat his object, viz., to make his wares pass off as the established chank products of the plaintiff This is not a case where the keeping of accounts would meet the ends of justice. It would only give the defendant an opportunity to entrench himself further into the handkerchief business which he would not otherwise be able to do but for assuming the guise of the plaintiffs chank mark.

The ad interim injunction granted will stand made absolute.

This application is allowed with costs.