Mahinder Narain, J.

1. The plaintiff Mrs. Pampa Kapoor is carrying on the business under the name of M/s HIDESIGN at and from 4, Caserne Street, Post Box No. 92, Pondicherry. It is stated in the plaint that she is engaged the business of manufacturing, processing, exporting and selling leather garments, bags, belts, brief- cases, wallets, etc. for the past several years.

1a. It is asserted by the plaintiff that the plaintiff adopted the trade mark HIDESIGN, which was represented in a special and particular manner, on 5.5.1977. It is stated that the plaintiff used the mark not only as a trade mark, but also a trade description, and it is further stated that the said mark appears permanently on all the products and all the literature of the plaintiff during the course of her business.

2. The plaintiff claims that she is the prior adopter of the said trade mark vis-a-vis the defendant, and is entitled to use the said name as a prior adopter of the said design. It is also asserted that in view of the established business and sale promotion and extensive and continuous regular commercial user, the said trade mark HIDESIGN had acquired secondary meaning with regard to the goods of the plaintiff, and has earned a valuable good-will and enviable reputation. This plea does not seem to be applicable as the concept of secondary meaning comes into play when the primary meaning is different. As the word combination HIDESIGN is not a word found in English Dictionary, secondary meaning concept is inapplicable.

3. The plaintiff asserts that in April, 1980, she became aware that the defendants are manufacturing and selling the same goods or description of goods as that of the plaintiff, under the same or deceptively similar trade mark HIDESIGN.

4. It is also asserted in the plaint that the defendants were unaware of the constitution of M/s. HI-DESIGN CREATIONS, which is a firm carrying on business at Delhi,

5. The plaintiff, therefore, sought an interim injunction, restraining the defendants from passing off their goods under the offending trade mark HIDESIGN. The plaintiff in the suit, also sought other reliefs, like delivery up and rendition of accounts.

6. Alongwith the suit, the plaintiff also filed an application (I.A. No. 5958 of 1990) under Order 39 Rules 1 and 2 read with Section 151 of the Code of Civil Procedure, by which the plaintiff prayed that during the pendency of the suit, the defendants, their servants, agents, stockists be restrained from using the trade mark HIDESIGN, or any other deceptively similar trade mark with regard to leather garments, etc., and sought an ad interim injunction without notice to the defendants/respondents.

7. On the averments made in the plaint and in the application, by my order dated 3.8.1990, I granted an ad interim injunction sought, restraining the defendants from carrying on the business as HI-DESIGN CREATIONS, and putting labels on the goods mark HIDESIGN. This injunction was in the first instance, issued till the next date of hearing, but it was later on continued.

8. The respondents put in appearance, filed their reply to the application, and also filed written statement.

9. I have heard parties Counsel, and I proceed to dispose of the interim application.

10. Prima facie, the word HIDESIGN is a very unusual word combination, once it is kept in view that the articles to which this mark is applied are made of leather. Broken up in a particular way, it may read as HIDE-SIGN. One of the documents filed by the plaintiff as Annexure A has a stylised representation of the face of a bull/buffalo, with horns on the head. In this stylised form the face of the bull and the horns would indicate HIDE-SIGN or sign of hide.

11. Written in another way, the word HIDE-SIGN becomes HIDESIGN. The purpose of mentioning of this is that the alphabets selected to make up the trade mark lend themselves to two distinct representation and meanings, and this by itself makes this a very unusual word combination. It is not disputed that the word HIDESIGN does not appear in English language dictionaries. The way the logo design is made up, (it is split up and written at two levels) also makes it appear that it is the intention of the maker of the word combination to use it either as HI-DESIGN or HIDE-SIGN.

12. It is the contention of the plaintiff that the words HIDESIGN or HI-DESIGN were coined and invented words, and that they were invented or coined by Dwarka Das, who is the husband of Ms. Pampa Kapoor, It is the Pampa Kapoor and Dilip Kapoor, her son, who are carrying on the business at and from Pondicherry, and selling their leather goods under the name HIDESIGN.

13. It is also the case of the plaintiff that Bunty Kaiker defendant who is carrying on business as HI-DESIGN CREATIONS from 6A, Yashwant Place, Chanakyapuri, New Delhi, approached the plaintiff in 1986-87, saying that he wished to sell the goods manufactured by the plaintiff at Delhi. The plaintiff, it is not disputed by the defendant, sold the goods to the defendant uptil 1987, but owing to some disputes, the transactions between the parties were stopped thereafter.

14. It is further the case of the plaintiff that it came to known in about April, 1990 that Bunty Kaiker is manufacturing and selling same goods as the plaintiff, in the name of HI-DESIGN CREATIONS, which he could not do in view of the fact that the plaintiff was the sole person entitled to carry on the business in the name of HI-DESIGN CREATIONS.

15. The Counsel for the plaintiff also dealt with the contention of the Counsel for the defendant, that the word HIDESIGN is an abandoned mark, by saying that this is a mere bald assertion for the reason that the plaintiff continues to carry on the business under the name and style of HIDESIGN since 1977.

16. The Counsel for the plaintiff also dismissed the contention of the defendant that the word HIGHDESIGN is a commonly used word in connection with leather trade. The Counsel for the plaintiff asserts that this contention of the defendant is based upon the fact that Boutique Hidesign was being run at Bangalore. The plaintiff submits that this Boutique Hidesign at Bangalore, was in fact a business which was being carried on by the plaintiff Ms. Pampa Kapoor and her son Dilip Kapoor in partnership with one Jayant Patel. It is also asserted by the plaintiff that Jayant Patel is no more connected with Boutique Hidesign, and that the only person carrying on business under the name of HIDESIGN is the plaintiff and her son.

17. As regards the contention of the defendant that the word HIDESIGN is common to the trade, and that the word, HIDESIGN occurs as trading style in U.K., Germany and Australia, the plaintiff explains that the businesses in U.K., Germany and Australia, which are being run under the name HIDESIGN, or have the word HIDESIGN in their name, are in fact outlets of the plaintiffs goods. Before conclusion of the arguments, the plaintiff, in fact, showed some copies of the agreements which have been entered into between the plaintiff and the parties in U.K., Germany and Australia in that connection.

18. The plaintiffs Counsel contends that the defendant admits connection between himself and the plaintiff.

19. This connection, according to the plaintiff, is that of agent of the plaintiff. The defendant himself in support of his case, has filed certain bills which have been produced to indicate that the plaintiffs were aware of the fact that he had been carrying on business under the name and style of HI-DESIGN CREATIONS at least in the year 1986. One of the bills produced by the defendant is a bill, indicating purchase of goods from the plaintiff on 16.4.1986. That bill indicates that the goods were purchased by one Bunty Kaiker. This Bunty Kaiker is none other than the defendant, as it is Bunty Kaiker who is carrying on business under the name of HI-DESIGN CREATIONS.

20. The plaintiff refers to the judgment reported as (1936) 53 RPC 79 Ch.D(The Robert Numbering Machine Co.). In this case the facts were that the plaintiff company was carrying on business in New York, of manufacturers of numbering machines. In 1910 they entered into an agreement with the defendant for sale of the plaintiffs machine in the U.K. The relationship was not of agency in the strict sense. Under the agreement, the defendant purchased the machine from plaintiff company and paid for them according to terms. Defendant carried on business in such machines under the same name as plaintiffs. The machines also bore the name of the plaintiff company. After termination of the agreement in 1933 the defendant continued to carry on business under the name and claimed the right to do so. Plaintiff then brought an action for passing off to restrain the defendant from using the name and also for breach of contract. They alleged that it was a term of agreement that the defendant should not deal in such numbering machines or be interested in the business of any competitor of plaintiff company. Defendant contended that the plaintiff carried on no business in the U.K. and the name meant his business. He pointed out that since 1917 he had continued to be registered under the Registration of Business Names Act, 1916 under the said name. The Court held that the plaintiff company had, acquired sufficient reputation in U.K. for its machines to be entitled to protect the use of the name there, and that the defendant merely had a revocable licence to use the name which was revoked on the termination of the agency agreement, and an injunction was granted restraining defendant from using the name the Roberts Numbering Machine Company or any name so similar to it as to be calculated to cause the belief that defendants business was a branch of, or in any way connected with the business of plaintiff company, and an enquiry was ordered as to damages in respect of the breach of agreement.

21. In view of what is stated in the aforesaid judgment, and the admitted position in the instant case that the defendant purchased goods from the plaintiffs as the goods of the plaintiff, and sold such goods, applying the principles of the said case to the instant case, it cannot be said that the plaintiffs had consented and acquiesced the use of the name or the word HIDESIGN in the trading style of the plaintiff.

22. The plaintiffs claim that, as established by the bill dated 16.4.1986, the defendant had purchased plaintiffs goods for the purpose of resale, and for that reason the plaintiff did not object to the use of the name of HI-DESIGN CREATIONS by the defendant has force. When the relationship of dealer of plaintiffs goods came to an end between the plaintiff and the defendant, the defendant could not continue to use the unique name HIDESIGN as a part of its trading style. In view of the judgment in 53 RPC 79, there is force in the contention of the plaintiff.

23. The plaintiff also contends that it is settled law since 13 RPC 218 (Reddaway v. Banham), Camel Hair belting case, that nobody has any right to represent his goods as goods of somebody else. It is also equally settled that no person has any right to represent that he has a connection in the course of trade with another business when in fact, there is none. In the case before me, so long as the defendant Bunty Kaiker was purchasing goods from the plaintiff for the purposes of re-sale, he could have used the words HIDESIGN CREATIONS as he was selling the HIDESIGN goods, but as soon as the relationship had stopped, following the dicta of the Robert Numbering Machine Co.s case (supra), he did not have any legal right to continue to use the unique name HIDESIGN in connection with his trading style or goods sold on his trading outlet. The Counsel for the plaintiff also referred to 1978 Delhi 250, which deals with the right of the prior user of any name to continue to use the name, and to restrain any subsequent user thereof. It is not disputed by the defendant in the instant case that the plaintiffs are prior user of the word HIDESIGN in connection with their business. In fact, the case of the defendant that he started the business under the name HIDESIGN CREATIONS only in February, 1986, and he stopped buying goods from the plaintiff in the year 1987. There is no serious dispute regarding the plaintiff being a prior user of the word HIDESIGN in connection with his trade.

24. It is note worthy that in the instant case, we do not have to deal with the concept of deceptive similarity as the instant case is one of identity, namely, HIDESIGN AND HIDESIGN CREATIONS. HIDESIGN being the mark placed by the plaintiff upon its goods, and HIDESIGN CREATIONS being the trading style of the defendant. Since the mark HIDESIGN relates to the garments, the word CREATIONS is linked up with the garment trade, and the added matter comprising of the word CREATIONS in the title HIDESIGN CREATIONS, in my view, is not sufficient to distinguish the two, especially when considered along with the fact that the defendant was admittedly buying the goods marked HIDESIGN from the plaintiff for selling it during the period 1986-87.

25. The defendant has made a bold assertion when he states that the word HIDESIGN is common to the trade. As a justification of it being common to the trade, the defendant contends that some persons in U.K., Australia and Bangalore are also using the same word, as mentioned earlier, the Bangalore enterprise was also of the plaintiff. That was a partnership business between Pampa Kapoor, her son and Jayant Patel. As stated by Mr. S C. Gulati, Advocate during the course of arguments, Jayant Patel is the brother-in-law of the defendant Bunty Kaikar. The defendant was aware of the said Jayant Patel carrying on the business in partnership in Bangalore with Pampa Kapoor and Dilip Kapoor at Bangalore. This partnership, however, lasted for a short while, and has since been dissolved. Since the plaintiff was actively involved in that partnership, the fact that the partnership was carried out in the name of HIDESIGN Boutique, where HIDESIGN marked garments of the plaintiffs were sold, cannot, in my opinion, mean that the name or the mark HIDESlGN is common to the trade.

26. Similarly as stated above, the word HIDESIGN has been used in connection with the business in U.K., Australia by plaintiffs outlets, which deal in with the goods marked by the plaintiff as HIDESIGN. For this reason, I do not think there is any substance in the contention of Mr. Gulati that the word HIDESIGN is common to the trade.

27. The defendant strongly urges that the plaintiff is guilty of suppression of the fact of prior dealing between the plaintiff and the defendant in the plaint. It is asserted that the plaintiff ought to have disclosed that the plaintiff and the defendant had known each other for many years; that they were at one time having business dealings with each other; that the said non-disclosure would disentitle the plaintiff from the relief of injunction which is sought.

28. It is also stressed by the defendant that the plaintiff is guilty of acquiescing in the use of the word HIDESIGN in the trading style of the defendant, and that the plaintiff has made out a new case in the replication regarding the nature of the dealings between the parties, and ought not to he, therefore, read in support of the injunction.

29. In answer to the contentions, Counsel referred to Section 106 of the Trade & Merchandise Marks Act. He submits that it is the requirement of that Section that the defendant must be unaware of the fact that the marks which he is using, are being used by the plaintiff. In the instant case, the defendant was purchasing goods from the plaintiff, and he was aware that the plaintiff was selling its goods under the mark HIDESIGN. In my view, the defendant has all along been aware, in view of his dealings with the plaintiff, that the mark HIDESIGN belongs to them. It is not open to him to contend that merely because the fact of these dealings are not mentioned in the plaint, the plaintiff is estopped from mentioning the same in the replication. As I see it, no possible prejudice has been caused to the defendant in non-disclosure of the fact of prior dealings between the parties in the plaint, as the defendant has all along been aware of the same. In any case, having had special and personal knowledge about the use of the word HIDESIGN upon the goods manufactured by the plaintiff, the defendant ought to have, after he stopped purchasing the goods of the plaintiff, ensured that he broke his link to not only between himself and the plaintiff, but also between himself and the persons who came and sought to buy the HIDESIGN goods at his shop after 1987, the year he stopped buying the goods of the plaintiff from the plaintiff. The defendant cannot have the advantage of the mark/name HIDESIGN by continuing the use thereof in his trading style, and even upon the goods which were got manufactured by defendant, which were not manufactured by the plaintiffs. This is the settled position since Reddaway v. Banham (supra).

30. The fact that the plaintiffs have outlets U.K., Australia, would have been known to the defendant, as a result of the dealings between the plaintiff and the defendant.

31. I shall advert to the matter of pleadings of the plaintiff regarding the alleged suppression of material facts from para 9 of the plaint. Full disclosure has not been made to Court it will need to be dealt with specifically.

32. Now I have to deal with the contentions raised with regard to delay and acquiescence in connection with filing of the suit, and the contention regarding acquiescence made by the defendant with regard to the use of the word HIDESIGN by the defendant.

33. Regarding the question of delay, it is contended by Mr. S.C. Gulati on behalf of the defendant, that whereas the dealings of the defendant with the plaintiff as purchaser of the goods marked with the word HIDESIGN which is evidenced by copies of bills dated 6.5.1986 to 22.7.1986 came to an end in around September, 1987, whereafter the defendant ceased to be a dealer of the goods marked with the plaintiffs mark HIDESIGN, and yet he continued to use the words HI-DESIGN CREATIONS with respect to it at shop at Yashwant Place. He started manufacturing leather garments in the name of HIDESIGN from 1987 onwards, and selling them.

34. It is only in the year 1990, three years later, that the instant suit was filed on 27.7.1990. The case in which the Court dealt with delay, which have been cited by the defendants Counsel, are 1923 RPC 133 (Cordes and Others v. R. Addis and Sons) (in which delay in filing of the suit is of ten years); and 1902 RPC 422 (Yost Typewriter Company, Ld. v. Typewriter Exchange Company) (in which the delay in filing of the suit was of five years). Mr. Gulati has also cited 1941 Madras 31 (Messrs Devidoss and Co. v. Alathur Abboyee Chetty and Co.), in which it was established that the plaintiff had the knowledge of the defendants use of the impugned mark on 18.4.1931, yet the suit was filed after expiry of more than 4 years on 27.7.1935. In the last cited case, the High Court of Madras dealing with the question of delay, held that no hard and fast rule can be made with regard to the effect of delay. It is on fact of each case that the decision of the Court to grant or not to grant, injunction must depend.

35. In the instant case, the alleged delay is slightly under three years. In 1923 RPC 133, there was no prior relationship of buyer and seller between the parties, inter se, the delay is of 8 years. For such a delay, it may be possible to contend, that in case of passing off action, such a long delay of 8 years may amount to acquiescence.

36. I do not think that the same principle would apply to a case of passing off, like the present, when admittedly the facts are that the defendant was dealing in the plaintiffs goods after purchasing the same from the plaintiff, that the defendant Bunty Kaiker had been known to the plaintiff for a very considerable period prior to his commencing dealing in plaintiffs goods and more importantly the plaintiff is admittedly carrying on business at and from Pondichery, exporting its goods to different countries, and the defendant has only one outlet at Delhi, Delhi being at a considerable distance from the place where the defendant is carrying on business, a distance of over 1000 kms.

37. The case in 1902 RPC 422 (Yost Typewriter Company, Ld. v. Type writer Exchange Company), relates to certain yost pads which were used in typewriters, most probably ink pads. Things are not quite clear from the report, and I would rather not act upon acquiescence having been established in connection with an article like yost pads, nature of which I am unable to appreciate at present. I am also not able to appreciate how and in what manner they were used in connection with the typewriters. Ever since the typewriters have been known to me, they have used inked ribbons for the purposes of conveying impression upon paper. I note that the plaintiff in that case was Yost Typewriters Co., an American concern, which was selling typewriters manufactured by it can America and in England. The Judge declined to give injunction, as he held that it will be determined at the trial whether Yost Pad meant the articles manufactured by the plaintiff company, or whether they mean pads manufactured for use upon Yost Typewriting machine. In these circumstances, that judgment cannot be of any help to Mr. S.C. Gulati. He has not brought to my notice as to what happened in the Yost Typewriter Co. case after trial.

38. During the course of arguments, Mr. Gulati has referred to Halsburys Laws of England Third Edition, Volume 38, page 635, para 1043. This para, however, merely deals with the defenses to action of passing off, and does not advance the case of the defendant in any way. Mr. Gulati also relies upon para 1046, which reads as under:

1046. Acquiescence. In general mere delay after knowledge of infringement does not deprive the registered proprietor of a trade mark of his statutory rights or of the appropriate remedy for the enforcement of these rights, at any rate so long as the delay is not of inordinate length. If, however, a person allows another person who is acting in good faith to build up a reputation under a trade name or mark to which the first person has rights, he may lose his right to bring proceedings for infringement or passing off in respect of the use of the mark by the other person, and may even be debarred from himself using a trade name. On the other hand even long user by another, it fraudulent, does not affect the plaintiffs right to a final injunction.

The said paragraph states that when the delay is of not inordinate length, would not deprive the registered proprietor of his statutory rights. One of the cases mentioned in the foot-note is the case of Electrolux Ltd. v. Electrix Ltd., (1954) 71 RPC 23. This case related to a registered trade mark. The contention that ten years delay has the effect of destroying the statutory rights to the exclusive monopoly, was rejected by Lord Evershed M.R. The instant case, however, relates to an unregistered mark.

39. The observations in that case relate to registered proprietor of a trade name or a trade mark. That case did not relate to common law passing off action.

40. The other observation in the aforesaid paragraph 1046 concerns a person, who acts in good faith, and builds up a reputation under a trade name or a trade mark. In view of the facts and circumstances of the present case, I do not think it is open to the defendant to contend that he has built up his trade, acting in good faith, inasmuch as admittedly the defendant Bunty Kaiker has known the plaintiffs Pampa Kapoor and Dilip Kapoor through family friendship/acquaintance for a long time. The defendant admits to having purchased the goods manufactured by the plaintiff under their mark HIDESIGN during the period 1986-87, when a dispute brought the transaction between the two to an end. Significantly, it is not asserted by the defendant that even prior to his commencing dealings with the plaintiff, and purchasing of the plaintiffs goods under the name HIDESIGN, he was himself using the word HIDESIGN in connection either with manufacture, or sale of any kind of leather articles. In this view of the matter, priority of use of the word HIDESIGN is prima facie with the plaintiff. Had it been otherwise, the defendant would have stated so in the written statement. No such assertion of priority of use of the word HIDESIGN by the defendant, has been made in the written statement.

41. In these circumstances, continued use of the word HIDESIGN by the defendant after dispute with the plaintiff, cannot be stated to be an act of good faith. He was apparently conscious of the distance between New Delhi and Pondichery, and wanted to continue trading as HI-DESIGN CREATIONS to take advantage of the reputation of the plaintiff and transactions between the defendant and the plaintiff during 1986-87.

42. In order to make out a case of acquiescence, the defendant states that he spent money in one advertisement which has been made in a telephone directory, and has also participated in a Garment Exhibition, having shop No. 8, Anarkali Bazar, Pragati Maidan, New Delhi. This is evidenced by electricity bill for the period April, 1987 to September, 1987. Mr. Gulati has also filed electricity bills regarding participation of the defendant in a fair held during 1986-87 in Pragati Maidan, New Delhi.

43. To my mind, a single insertion of an advertisement, and participation in an exhibition only once, cannot be considered to be such an activity in which a very great deal of money has been spent for the purposes of building up a reputation in the defendants goods. It is only when the plaintiff sits idly by, while the defendant spends a great deal of time, effort money in building up of a trade in the goods in the impugned name, to which the plaintiff claims exclusive right, can a contention of acquiescence be raised. For example in the case of Vine Products Limited & Others v. Mackenzie & Company Limited & Others, (1969) RPC 1. Sherry had been sold in England for over 100 years. The growers of Sherry in Spain in a town called Jerez, from (which the word Sherry originated), were denied an injunction, which the Spanish had sought.

44. Mr. S.C. Gulati has cited the case reported as 1923 RPC 133 under some misapprehension. That case related to selling of tooth-brushes, which bore the term Prophylactic thereon, and marketing them in a get-up which was of a particular nature. The Court, as a fact, found that the get-up was common to the trade of tooth brushes, and that the word Prophylactic was also common to the trade. There is no material on record of this suit which can support such averment regarding HIDESIGN having become common to the trade in leather garments. From the plaint, and the replication, it appears that HIDESIGN is used only in outlets with which the plaintiff is connected.

45. In any case, I cannot accept the proposition that the word HIDESIGN is common to the leather garments trade, inasmuch as there is no suggestion in the written statement that any person other than the plaintiff or its associates are carrying on the trade by branding their articles as HIDESIGN.

46. A reference has been made to two oral judgments, delivered by B.N. Kirpal, J. of this Court. The first in the point of time, being judgment delivered on 19.8.1988 in the matter of M/s. R.P. Locks Co. v. Sehgal Locks Co. and Others, and the second judgment delivered on 23.1.1989 in the matter of Messrs Hindustan Pencils Pvt. Ltd. v. Messrs India Stationery Products Co. & Another. In matter of acquiescence, it was stated that inasmuch as Sections 28 and 29 of the Trade & Merchandise Marks Act, read together, gave an exclusive right to the registered holder of the mark, any infringement of the mark is illegal, and continued user of an infringing mark by the defendant is likely to adversely affect the business reputation of the plaintiff. The Court came to the conclusion that keeping in view Section 106 of the Trade & Merchandise Marks Act, once the Court prima facie comes to the conclusion that the mark of the defendant is deceptively similar to that of the plaintiff, then it would be in the interest of all that interim injunction should be granted.

47. In the instant case the word HIDESIGN is not a registered mark. The action which has been brought, is one of passing off. Passing off action, as it is well settled, is a common law remedy, being in substance an action for deceit. This was so stated in 1965 Supreme Court 980 (Kaviraj Pandit Durga Dutt Sharma v. Navaratna Pharmaceutical Laboratories).

48. In the case of Messrs Hindustan Pencils Pvt. Ltd. v. Messrs India Stationery Products Co. & Another, 1969 PTC 61, B.N, Kirpal, J., again by an oral order examined the position of the defence of laches or inordinate delay. That case also related to registered trade mark, NATRAJ. The word NATRAJ was registered for pin clips in class 16 under No. 260466 dated 6.11.1989, and the device of the NATRAJ was registered under No. 283730 dated 27.10.1972. The plaintiff that suit had got it registered for pencils, refills for propelling pens, and pencils, pen sharpeners, fountain pens erasers, pin clips and staples included in class 16. The plaintiff also got it registered for pencils all kinds, erasers, refills for propelling pens and pencils, pencil sharpeners, pens, fountain pens, pins, clips, wire staples for stapling presses and pins.

49. The defendants in that case, were making pins. The defendants in that case, had obtained copyright registration for a label with a dancing figure with respect to pins.

50. It is stated in the judgment, that in June, 1985, the plaintiff had applied for rectification of copyright, and the suit for injunction was filed in 1988. Inasmuch as the knowledge of the plaintiff was clearly there in the month of June, 1985, when they sought rectification of the copyright registration, and the suit was filed in 1988, it was contended by the defendant that there was inordinate delay on the part of the plaintiff in filing the suit. It was contended by the defendant they had been advertising their pins since the year 1982, and, therefore, the delay was of six years. A large number of English and American cases including Trade-marks and Unfair Competition by J. Thomas McCarthy were referred to.

51. Kirpal, J. referred to the observations of Romer, J. in J.R. Parkington and Coy. Ld., 63 RPC 171, that the circumstances which attend to the adoption of trade mark in the first instance, are of considerable importance when one comes to consider whether the use of that mark has or has not been a honest user. If the user in its inception was tainted, it would be difficult in most cases to purify it subsequently.

52. I am in respectful agreement with the said observations of Romer, J. I have also so held in the matter reported as 1990 (3) Delhi Lawyer 329 at 331. I said the word (AEVIS) is not in a dictionary. Its adoption by the defendants, therefore, needed to be explained, which the defendants have not explained in the pleadings before the Court.

53. The plaintiff claims to be an originator of the word HIDESIGN. I have mentioned above, the words devised is capable of being read as HIDESIGN as well as HIDESIGN, which by itself is unique. The word is not found in any English Dictionary. The only reason for the defendants use of the word HIDESIGN in the name of his shop HI-DESIGN CREATIONS was because of he was selling the goods manufactured by the plaintiff under the name HIDESIGN. Once the relationship came to an end, the defendant cannot justify the continued use, not only of the name HI-DESIGN CREATIONS, but also adoption the name HIDESIGN upon the goods manufactured by the defendant.

54. The acquiescence over a period of time, has to be on the basis of honest concurrent user of the mark. In the instant case, as the matter stands today, it cannot be said that the user of the word HIDESIGN comes within the meaning of the words honest concurrent user. Besides this, acquiescence also means that the plaintiffs have encouraged the defendant in using the infringing mark. Encouragement may be tacit or express. One of the essentials of such encouragement has to be that the plaintiff sits idly by, while the defendant spends large amounts in advertisements, and building up good will with respect to the plaintiffs name or mark.

55. No such facts have been averred in the written statement, with the exception of insertion of one single advertisement in a business/telephone directory, and participation in a single exhibition. To my mind, such an expenditure is too insignificant for the purpose of depriving the plaintiff of the exclusive use of their name, and mark HIDESIGN.

56. There is one more matter, which I need to deal with, which is the contention of Mr. S.C. Gulati that the plaintiffs have not complied with Order 39 Rule 3 of the Code of Civil Procedure, and on that account, injunction has to be vacated. He asserts that the order of injunction was issued on 3.8.1990, the process-fee for issuing notices was filed on 7.8.1990, which was returned under objections, and which was re-filed on 30.8.1990, and the process was issued by the registry on 31.8.1990, and the service was effected on the defendants on 5.9.1990. The Local Commissioner went to the premises on 8th August, 1990 at 3.30 P.M. It is contended by Mr. Gulati that the terms of Order 39 Rule 3 requiring the service on the following day, have not been complied with.

57. As against this, Mr. R.N. Prabhakar contends and replies that 3rd August was Friday, 4th August was Saturday, 5th August was Sunday and 6th August was holiday. The Local Commissioner could only be contacted on 7th August, and the service on the defendant was effected on 8th August of the order dated 3rd August. It is clear from the report of the Local Commissioner that the order of the Court was conveyed only on 8.8.1990, though the service was effected on 5th September, 1990.

58. In view of what Mr. Prabhakar says, I think it was sufficient compliance with the requirements of Order 39 Rule 3 of the Code of Civil Procedure.

59. I have now to deal with the matter for alleged suppression of facts in para 9 of the plaint. It is axiomatic, that every plaintiff before the Court must give full, frank and complete facts upon which he has to rely. He should not hide material and relevant facts nor should he suppress them in the plaint before the Court. Here the plaintiff has given less than full disclosure. I think he should be made to pay for this lapse. This case be done by imposing costs at this stage. Besides this fact of non-disclosure shall be a relevant fact at the time of final determination of the suit, and appropriate orders regarding costs should be made at that stage too. For the time being, I think it appropriate that I quantify costs to be paid to the defendant at this interim stage, which I quantify at Rs. 3,000. This should for the time being make fine the lapse of the plaintiff. This amount be paid to the defendant within one month from today. In the facts and circumstances of the case, I do not think that the plaintiff should be penalised by refusal of the injunction.

60. In the aforesaid circumstances, I reject I.A. No. 8171 of 1990 filed by the defendant under Order 39 Rule 4 of the Code of Civil Procedure for setting aside the ad interim ex parte order of injunction dated 3.8.1990. I allow I.A. No. 5958 of 1990 and confirm the said interim injunction.

61. Needless to add that the opinion expressed herein, is prima facie, and what is stated herein should not be so construed as to prejudice a final determination of the rights of the parties inter se after the trial of the matter.

62. I.A. Nos. 5958 of 1990 and 8171 of 1990 stand disposed of.