R.C. Lahoti, J:

1. Plaintiff has sought for an ad-interim injunction restraining passing-off by the defendants of its goods those as of the plaintiffs, in a suit seeking permanent injunction of a similar nature.

2. According to the plaintiff it has been carrying on the business of manufacturing refined oil under the name and style of Pakwan from the year 1984. The trade mark having been invented, adopted and used ever since 1984 by the plaintiff, it has acquired a proprietory interest therein. The plaintiff has incurred substantial expenditure on popularising the trade mark. It is having substantial sales running into lacs per year. Shortly before the filing of this suit on 17.5.94 the plaintiff learnt that the defendant had started manufacturing and marketing its own oil in the trade name of Pakwan which is likely to deceive unwary customers leading them into believing the defendants oil to be of the plaintiffs.

3. The plaintiffs prayer for the grant of ad-interim injunction has been contested by the defendant mainly on two grounds. It is not disputed that the plaintiff is a previous user of the trade mark Pakwan. However, it is submitted that the plaintiff had discontinued the user of the trade mark Pakwan sometime in the year 1986-87. The defendant made enquiries from the market and learnt of the plaintiffs trade mark Pakwan being not in its user and so defendant came to the market bonafidely in the years 1993-94 alongwith the trade mark Pakwan on its product. Secondly, it is submitted that Pakwan is descriptive of merely a quality of the food products and so the word is incapable of being acquired as a trade mark.

4. Vide para 28 of the plaint, the plaintiff has set-out figures of sales and sales promotion expenses incurred on advertisement and publicity between the years 1983 -84 and 1991-92. The figures are substantial. Invoices and letters from the customers have been filed by the plaintiff showing its having marketed its oil in the trade name of Pakwan during these several years. A copy of the prospectus issued while going to the capital market in October/November, 1985 has been filed wherein the products of the plaintiff shown in the trade name Pakwan are micro refined Soyabean oil, Soyameal, Soya flour, Soya foods etc.

5. I am not impressed by the submissions of the learned counsel for the defendant that the documents filed by the plaintiff show the plaintiff having supplied its products to merely a very limited set of customers such as hotels or Government departments where the edible oil might have been supplied in large containers without any trade name and that the plaintiff has adduced no documentary evidence of having been in the retail market with the trade name Pakwan on its refind oil. The learned counsel for the plaintiff has rightly submitted that the invoices produced by the plaintiff show large scale supplies which were under the name Pakwan while the plaintiff was also marketing its products in general market.

6. The defendant has filed a few letters from some brokers or businessmen stating that they had not heard of the plaintiff marketing Pakwan products. These documents are of no evidenciary value. So also merely because the plaintiff had at a point time in the past sought for registration of trade mark Pakwan and then withdrawn the application that does not mean that the plaintiff had abandoned its trade mark.

7. The plaintiff has filed a copy of the prospectus issued by the defendant while it was going to the capital market with a public issue of its equity shares in March/April, 1994. On page 11 of its prospectus, it is stated that the defendant was dealing in non-edible oils and its refind edible oil under the brand of Savera and Pakwan in consumer packs were launched in markets in Northern India. Registration was applied for by the defendants in the year 1993. All these documents show the defendants recent arrival in the market in the trade name Pakwan.

8. The dictionary meaning of Pakwan is "cooked food; bread-cake; pasty or sweet fried in ghi e.g. puri , kachauri." (Oxford Hindi-English Dictionary, 1993 edition at page 588). Reliance on Section 34 of the Trade and Merchandise Marks, 1958 by the defendants counsel is misconceived as the term Pakwan is not merely descriptive of character or quality of goods such as oil.

9. During the course of hearing, learned counsel for the defendant stated that colour scheme of the wrappers used by the defendant on its products was different from that of the plaintiffs and the defendant was further prepared to prefix the trade name Pakwan with the words "Chattars" preceding while plaintiff may use the trade name Pakwan with the word "Kochars" preceding which would clearly distinguish the defendants product from that of the plaintiffs. However that offer has not been accepted by the plaintiff. In the opinion of this Court so long as the defendant continues to use the trade name Pakwan, though the two parties may per-fix their own respective names to the trade mark that would not protect the unwary customers and confusion, also the possibility of deception, would continue to prevail.

10. Teju Singh v. Shanta Devi, AIR 1974 AP 274 [LQ/TelHC/1973/98] and J.P. Coats Ltd. v. M/s. Chadha & Co., AIR 1967 Delhi 141 relied on by learned counsel for the defendants do not lay down any law supporting his contentions. No man is entitled to represent his goods as being the goods of another man; and no man is permitted to use any mark, sign or symbol, device or other means whereby without making a direct false representation himself to a purchaser who purchases from him, he enables such purchaser to tell a lie or make a false representation to someone else who is the ultimate customer. That is the essence of an action in passing-off.

11. In the opinion of this Court, the plaintiff has made out a good prima facie case for the grant of injunction against the defendant. The balance of convenience lies in favour of the plaintiff and in the absence of the grant of injunction, the plaintiff is likely to suffer irreparable injury.

12. The application is allowed. It is directed that during the pendency of this suit, the defendant company, its owners, agents, servants or anyone acting on its behalf shall remain restrained from manufacturing, selling or offering for sale, advertising directly or indirectly, dealing in oil under the trade mark Pakwan or any other trade mark which is identical or deceptibly similar with the plaintiffs trade mark.