Veerumal Praveen Kumar v. Needle Industries (India) Ltd. And Anr.

Sanjay Kishan Kaul, J.— A suit was filed by the respondents against the appellant herein for permanent injunction and recovery of damages under Sections 105 and 106 of the Trade and Merchandise Marks Act, 1958 (hereinafter referred to as the Act) read with Section 1962 of the Copyright Act, 1957. The suit is in respect of Snap Fasteners and the respondents claimed relief against packaging with the colour scheme orange and grey and a lay out and get up identical or deceptively similar being used by the appellant to that of the respondents under the copyright of ‘Pony Card’ and/or use of the trademark ‘555’ and/or impugned cards bearing the trademark ‘555’ apart from claiming a money decree for damages. Respondent No. 1 stated in the plaint that they were a subsidiary of a British manufacturer of hand sewing needles, knitting pins and other similar products and during its growth benefited from the technology and skilled personnel from respondent No. 2. There was a licence agreement between the two respondents during the period 1963 to 1981 to manufacture press studs. Respondent No. 1 further claimed that it had sold products bearing trademark ‘555’ during the period from 1963 to 1981. It was further alleged in the plaint that though the licence agreement between the two respondents came to an end in 1981 the trademark ‘555’ had till the date of the suit been retained on the trademark register and continues to retain much residual good will and reputation in the Indian market and the same was further supplemented and enriched by respondent No. 2's sales and publicity of the product bearing the said trademark in a large number of countries throughout the world. A claim was also made in respect of the product of respondent No. 1 bearing ‘Pony Card’ which is stated to have been regularly advertised in major journals all over the world. Details of sales were given for the period 1979 to 1993-1994. It was further alleged in the plaint that respondent No. 1 came to know of the appellant marketing the product and infringing the rights of the respondents in around June, 1993 and consequently sent a legal notice dated 23th June, 1993. Certain communications ensued between the appellant and respondent No. 1 in respect of the claim of respondent No. 1 but no settlement was arrived at and consequently the suit was filed.

2. The appellant resisted the suit of the respondents. Plea of undue delay and laches was raised as the appellant claimed that they had been using the trademark and label entitled “V.R” with the device of SWAN and numerals 555 since the year 1989 for Spring Snab Fasteners. The plea was raised in the written statement that assuming the existence of licence agreement alleged by the respondents, the admitted position was that the agreement had expired in 1981 and the trademark 555 had never been used in India either in respect of Spring Snab Fasteners or any such allied product at any time by the respondents. Thus it was claimed that since no goods were sold under the alleged registered trademark ‘555’ in the Indian market, there was no question of effecting any sales.

3. At the stage of filing of the suit an interim application was also filed by the respondents under Order 39 Rules 1 and 2, read with Section 151, CPC being IA No. 8748/95. This application was disposed of by the impugned order dated 28th March, 2000. In terms of this order the learned Single Judge was of the view that the there could not be any confusion in the mind of the customer while purchasing the same type of goods as the features of the two cards were distinctive and the plaintiff was not entitled to injunction in respect of the card with which the fasteners were being displayed and sold to the customers. However, insofar as the question of use of the figure ‘555’ as trademark was concerned, the learned Single Judge came to the conclusion that the registration of the mark in favour of the respondents coupled with the adoption of the mark by the appellant not being honest the respondents were entitled to a restraint order against the appellant from using the said trademark ‘555’ or any other mark deceptively similar to the same.

4. The appellant aggrieved by the said restraint order preferred the present appeal. The appeal was admitted on 4th May, 2000 and the operation of the impugned order was stayed. The respondents, on the other hand, being aggrieved by the refusal of learned Single Judge to grant them relief with respect to their other prayers in the application have filed cross-objections.

5. Mr. R.K Aggarwal, learned Counsel for the appellant, drew our attention to the fact that the learned Single Judge had found that the impugned labels/cards of both the parties were entirely different yet proceeded to injunct the appellant from the use of the trademark ‘555’. The learned Counsel contended that the respondent shad never used the trademark for the last 40 years in India except for the period of 1977 to 1979. The learned Counsel referred to the fact that admittedly the licence agreement between the two respondents did not survive after 1981 and there had been no user for the trademark in India at least since that date. Mr. Aggarwal, further contended that the respondents had failed to substantiate their claim of global reputation or any advertisement in India since no document for the same was filed on record.

6. The suit is also claimed to have been filed belatedly and thus suffered on grounds of delays and laches as admittedly the cause of action of para 36 of the plaint was stated to have arisen in June, 1993 while the suit was filed in 1995. Further submission was made by learned Counsel for the appellant that respondents were not granted any interim injunction till the date of the impugned order on 29th March, 2000 which order as also stayed by the Division Bench on 4th May, 2000.

7. Mr. R.K Aggarwal, learned Counsel for the appellant, submitted that the findings of the learned Single Judge to the effect that plea of non-user had not been taken in the written statement by the appellant was not borne out of the record because the appellant throughout the written statement had contended that the respondents were not using the trademark in India. Learned Counsel has also impugned the finding of learned Single Judge to effect that the respondents had placed on record invoices to show that at least till 1981 the goods with the trademark ‘555’ were being exclusively sold in India. Learned Counsel drew our attention to the invoices filed on record to show that the same related only for a brief period of about a year and a half between 1977 and 1979. Similarly the finding of the learned Single Judge in respect of the reputation of the goods of the respondents in India in 1960's and 1970's was stated to be not borne from the record as there was nothing placed on record to substantiate the same. It was thus the submission of learned Counsel for the appellant that the non-user of the trademark over along period of time is fatal for the owner of the trademark when it approaches the Court of Law for its protection since the trademark cannot exist in vacuum. The claim of global reputation has to be substantiated by documentary evidence and in the absence of the same it was contended that the respondent had made out no case for the same.

8. Mr. Aggarwal further contended that the use of mark has to be continuous, open, regular and uninterrupted and very registration of the mark would not given any right or entitlement to the owner of the mark to claim monopoly over the same until and unless it was in use. The use of the trademark was claimed by the Counsel for the appellant to be superior to the registration of the mark. The equities were claimed to be in favour of the appellant as also the balance of convenience because the appellant had been using the impugned label for more than last 11 years while the respondents had not been using the trademark at least since 1981. The last submission advanced on behalf of the appellant by Mr. Aggarwal is that the label has to be compared as a whole and not in isolation. It was contended that the composite mark/label has to be compared without the same being dissected.

9. Mr. R.K Aggarwal, learned Counsel for the appellant, referred to the documents filed on behalf of the respondents to substantiate its claim of sales and submitted that they were for sales in 1979 in India and the remaining were for the sales in Hongkong and not in India or anywhere else. Thus it was contended that the respondents had failed to establish any worthwhile reputation in the world for the sale of the product to entitle them to any protection in terms of the judgment in N.R Gongre v. Whirlpool Corporation, (1996) 5 SCC 714.

10. Learned Counsel referred to various judgments to substantiate his contentions. Mr. Aggarwal referred to the judgment of the Supreme Court in Corn Products Refining Co. v. Shangrila Food Products Ltd , AIR 1960 SC 142. The Supreme Court observed in para 15 as under:

“Now of course, the presence of a mark in the register does not prove its user at all. It is possible that the mark may have been registered but not used. It is not permissible to draw any inference as to their user from the presence of the marks on the register.”

11. The learned Counsel next referred to the judgment of the Court of appeal in Imperial Group Ltd. v. Philip Morris & Co. Ltd., 1983 FSR 72, and drew our attention to certain observations in the judgment which are as under:

“Unlike a copyright, a trademark does not arise from the mere use of a word or words or a formula or a mark; it derives from the use of words or marks in relation to a course of trade in goods giving rise to a good will connecting the trader with the goods by reason of the trade mark under which the goods are marketed. It follows that where, in relation to particular goods, there is no such course of trading as to give rise to a goodwill, there is not interest to be protected by a trademark and no such mark can subsist in vacuo.”

“…….In my judgment “a bona fide course of trading” involves a trading activity pursued with the primary intention of deriving from it a trading profit coupled with a trading goodwill, these being the ultimate and legitimate objectives of trade.”

12. The learned Counsel for the appellant relied on Cluett Peabody & Co. Inc v. Arrow Apparels, 1998 PTC(18) 156. The Bombay High Court considered the issue of delay as a defence when the mark had been copied and agreed with the submissions of learned Counsel for the defendants that in a suit for infringement of trademark priority in use could not be dishonest. The High Court observed that the right of exclusive use is acquired by user or by registration or by assignment but the essential feature for constituting the proprietary in trademark is that it should be used by the proprietor in his business or in connection with his vendible commodity. The Court was of the view that though the delay by itself was not a defence but non-user of the mark loses its distinctiveness. A trademark which drops out of the use dies for non-user. Where there are no goods offered for sale, there is no use of trademark.

13. The learned Counsel for the appellant, to substantiate his contention that the label has to be read as a whole and could not be dissected, referred to the Division Bench judgment of this Court in Kellog Company v. Pravin Kumar Bhadabhai, 1996 PTC (16) 187. The Division Bench was of the view that the trade dress or rather the whole thing must be seen in its entirety and not parts in isolation. The case of Schewappers Ltd. v. Gibbens, (1905) 22 RPC, was referred to where it was held that the fraudulent intention could not be presumed in respect of the similarities in the bottle of Sedawater labels and colours because the distinguishing feature of the name adopted show that it had no intention of deceiving the purchasers. Observation in this case were quoted with approval to the effect that—

“and if a person is so careless that he does not look, and does not,…..treats the label fairly but takes the bottle without sufficient consideration and without reading what is written very plainly indeed up—the face of the label on which the trader has placed his own name, then you certainly cannot say he is deceived—in fact, he does not care which it is. That would be the true interference which I think a person would draw from conduct so described.”

14. Lastly the learned Counsel in support of his plea of equity and balance of convenience referred to the judgment of Synthetic Moulders Ltd.… v. Semperit Aktiengesellschaft…, 1980 RLR 263, to contend that interim injunction should be granted against an alleged Infringer only if the equities are in his favour and he moves the Court without delay. The Division Bench of this Court in Synthetic Moulders' case (supra), was of the view that mere registration of the trademark would not establish rights under Section 28 of the Act to grant temporary injunction and that the balance of convenience in granting temporary injunction was to be determined by relative amount of damage which is likely to result after the injunction is granted and the plaintiff ultimately fails. (Stated to be as per Kerly Tradermarks and Tradenames, 10th Edition paragraph 15.65).

15. Mr. Naveen Chawla, learned Counsel for the respondent, on the other hand, contended that the design of the label and the use of trademark ‘555’ was to give a distinct impression to the public that the appellant was a successor to the product of respondent No. 1 Mr. Chawla, strongly relied on the failure of the appellant to even seek the cancellation of the registered trademark of the respondents ‘555’ which was so registered in 1951.

16. Mr. Chawla while referring to the various provisions of the Act submitted that there were rights conferred under Section 28 of the Act and the registered proprietor of the trademark had the exclusive right to use the trademark in relation to the goods in respect of which the trademark was registered. Section 29 refers to the infringement of the trademarks. We may clarify here that Section 29(2) provides that in an action for infringement of a trademark registered in Part B of the register an injunction or other relief was not liable to be granted to the plaintiff if it was established to the satisfaction of the Court that the mark was not likely to deceive or cause confusion between the goods of the parties. Section31 provides registration to be prima facie evidence of validity and Section 46 provides for the removal from the register and imposition of limitation on ground of non-use. In terms of Section 46(1)(b) a trademark may be taken off the register in respect of any goods of which it is registered on an application being made in the prescribed manner on the ground that upto a date one month before the date of application, a continuous period of 5 years or longer had elapsed during which the trademark was registered and during which there was no bona-fide use thereof in relation to those goods by any proprietor for the time being.

17. Thus Mr. Chawla contended that the appellant if so aggrieved by the nonuser by the respondents, was entitled in law to seek cancellation under Section 46(1)(b) of the Act which admittedly the appellant had not done. It was thus contended that in an infringement action the registered user was entitled to an injunction if the mark was being used by another party. It was further contended that no plea was raised in the written statement by the appellant as to why the figure ‘555’ was being used by him and thus the balance of convenience was in favour of dropping the said mark. It was further contended that no issue in the suit had been framed on account of non-user by the respondents. It was also contended that admittedly, there was prior to adoption of the mark by the respondents apparent from sales figures having been given since at least 1979. Mr. Chawla referred to the judgment of Supreme Court in Ruston & Hornsby Ltd. v. Zamindara Engineering Co.†., (1969) 2 SCC 727, to point out the distinction between an infringement action and a passing of action. It would be useful to reproduce the relevant passages of the judgment which are as under:

“3. The distinction between an infringement action and a passing off action is important. Apart from the question as to the nature of trademark the issue in an infringement action is quite different from the issue in a passing off action. In a passing off action the issue is as follows:

Is the defendant selling goods so marked as to be designed or calculated to lead purchasers to believe that they are the plaintiff's goods?

But in an infringement action the issue is as follows:

Is the defendant using a mark which is the same as or which is a colourable imitation of the plaintiff's registered trademark.

4. It very often happens that although the defendant is not using the trademark of the plaintiff, the get up of the defendant's goods may be so much like the plaintiff's that a clear case of passing off would be proved. It is on the contrary conceivable that although the defendant may be using the plaintiff's mark the get up of the defendant's goods may be so different from the get up of the plaintiff's goods and the prices also may by so different that there would be no probability of deception of the public. Nevertheless, in an action on the trade mark, that is to say in a infringement action, an injunction would issue as soon as it is proved that the defendant is improperly using the plaintiff's mark.

5. The action for infringement is a statutory right. It is dependent upon the validity of the registration and subject to other restrictions laid down in Sections 30, 34 and 35 of the Act. On the other hand the gist of a passing off action is that A is not entitled to represent his goods as the goods of B but it is not necessary for B to prove that A did this knowingly or with any intent to deceive.

6. xxxxxx

7. In an action for infringement where the defendant's trade mark is identical with the plaintiff's mark, the Court will not enquire whether the infringement is such as is likely to deceive or cause confusion. But where the alleged infringement consists of using nor the exact mark on the register, but something similar to it, the test of infringement is the same as in an action for passing off. In other words, the test as to likelihood of confusion or deception arising from similarity of marks is the same both in infringement and passing off actions.”

18. The learned Counsel then referred to the judgment of Kaviraj Pandi Durga Dutt Sharma v. Navaratna Pharmaceutical Laboratories, AIR 1965 SC 980, where the Supreme Court was of the view that if the essential features of the trademark had been adopted the effect that the get up, packing and other writing on the packets or the goods or on the packets in which the goods were offered for sale show mark differences or indicate clearly a trade origin different from that of the registered proprietor of the mark would be immaterial whereas in the case of passing of a party may escape liability if it can show that the added matter is sufficient to distinguish the goods of the parties. A reference was then made to a Full Bench judgment of this Court in Metro Plastic Industries (Regd.) v. Galaxy Footwear, New Delhi, 2000 PTC 1 (FB). The Full Bench while dealing with the provisions under the Designs Act, 1911 observed that any application under section 51a of the designs act brings into cloud the registration of the design and in the absence of an application for cancellation of the design such a right can be enforced and no defence can be taken based on a ground of cancellation. This was to harmoniously construe the provisions of Section 51A and Section 53 of the Designs Act, 1911. A reference was also made to the judgment in Philip Morris Belgium S.A… v. Golden Tobacco Co. Ltd.…., AIR 1986 Delhi 145, where learned Judge relied on the observations in the M/S Atlas Cycle Industries Ltd.… v. Hind Cycles Limited…, ILR (1973) 1 Delhi 393, to observe:

“In an action for an alleged infringement of a registered trademark, it has first to be seen whether the impugned mark of the defendant is identical with the registered trademark of the plaintiff. If the mark is found to be identical no further question arises and it has to be held that there was infringement.”

19. Referring to the judgment in Wearwell Cycle Co. (India) Limited…Petitioner v. Wearwell Industries & Another…S, Ludhiana, 5 (1969) DLT 469, it was observed that the question of balance of convenience while dealing with the Order 39 Rules 1 and 2 of the Code of Civil Procedure, 1908 in case of a passing off action was relevant when prima facie the two parties were on the same level and their rights were about equal. This was stated to be not so where a defendant has adopted in toto the registered trademark of the plaintiff which made it a clear case of infringement casting away the consideration of any balance of convenience.

20. Mr. Aggarwal, learned Counsel for the appellant in his rejoinder referred to the judgment of Bombay High Court in Consolidated Foods Corporation v. Brandon and Co. Private Ltd., AIR 1965 Bombay 35, to rebut the contentions advanced on behalf of the respondent and to advance his submission that mere registration without user would not give rights in law.

21. We have considered the submissions advanced on behalf of the appellant by Mr. R.K Aggarwal and on behalf of the respondents by Mr. Naveen Chawla. At the inception it may be stated that though the respondents have filed cross-objections but the same were not seriously pressed. Further, the learned Single Judge has eloquently dealt with the points raised in the cross-objections and had come to the conclusion that there cannot be any deception or confusion in the mind of the customer who wishes to purchase similar goods in the market. The appellant has the description of V.R at the top of the label with a device of Swan while in the case of the respondents the device of Pony is printed. Further the name of the manufacturer is displayed in case of the product both of the appellant and the respondents prominently and thus the features of the two cards can be immediately noticed by the customer. We are thus in full agreement with the conclusion of the learned Single Judge.

22. In view of the aforesaid, the question which needs examination is the rights agitated by the respondents in respect of the registered trademark “555”. Taking into consideration the submissions advanced on behalf of the appellant and the respondents the following aspects would require adjudication in the present appeal.

(1) The effect of the respondents being the registered owner of the trademark ‘555’, taking into consideration the allegations of non-use by the appellant.

(2) Whether the respondents were able to establish prima facie any word-wide reputation and sales under the trademark.

(3) The effect of the composite label as a whole including the use of the word ‘555’, and

(4) The allegation of delay and lapse of time in filing of the suit from the stated date of cause of action in the plaint.

23. The primary aspect in our considered view which needs to be examined is the issue relating to the respondents being the registered user of the trademark and whether the allegations of non-use has any effect of the same. The Counsel for the parties have taken us through the documents placed on record. The respondents had filed various documents to show their sales. These are in the form of invoices and other materials. We find force in the submission of learned Counsel for the appellant that the material placed on record shows sales only for a short period of time from 1977 to 1979. It is an admitted position that the inter se licence agreement between the two respondents did not survive after 1981, which prima facie show that there has been no sales by the respondents after 1981. Though the aspect of global reputation has been mentioned above, as the second issue, it would be pertinent to state at this stage that no material has been placed on record to substantiate this claim of global reputation. The invoices are for a limited period of time and some of the invoices relate to Hong Kong. There is also nothing on record to show any reputation of the goods of the respondents in India in 1960s and 1970s, as observed by the learned Single Judge. Thus we are also unable to agree with the factual finding of the learned Single Judge that there is material on record to show that there were sales by the respondents in India prior to 1981 other than for the period 1977 to 1979.

24. In view of the aforesaid factual position what has to be considered is whether the factum of the registration of the trademark in the name of the appellant is sufficient to grant relief in favour of the respondents or whether something more is required. This has to be considered in view of the submission of learned Counsel for the appellant that the trademark cannot exist in vacuum and in view of their being a non-user of the trademark since 1981, the respondents are not entitled to any protection.

25. The Bombay High Court has considered in depth a similar situation, though not identical, in the case of Cluett Peabody's case (supra). It would be useful to refer to the said judgment while examining the said aspect. Similar pleas had been advanced in the said case by the registered owner of the trademark to the effect that the mark being registered is conclusive as to its validity and till any rectification is carried out, the registered owner is entitled to its exclusive use. It may, however, be stated that in Cluett Peabody's case (supra), the opposite party had applied for rectification and removal of the plaintiff's name from the register while in the present case no such action has been taken by the appellant. It was the further contention by the registered owner that the non use of the mark in India was no defence to the infringement to the registered mark. The learned Single Judge of the Bombay High Court was of the view that the essential feature for constituting the proprietary right in trademark is that it should be used by the proprietor in his business or in connection with vendible commodity.

26. Though delay by itself would not be a defence but if there was a non-user for a long period of time the mark would lose its distinctiveness or the mark is then permitted to die for non-user. The Bombay High Court observed “It is well settled that lapse of time may bring about a change in the state of things in such a manner that to grant injunction in favour of the plaintiffs would be harsh and it may cause irreparable damage or harm to the rights of the defendants.” Thus the Bombay High Court was of the view that non-use of trademark does have a bearing in action for infringement specially at the interlocutory stage and equities would have to be balanced in such a situation. The Bombay High Court had further laid down certain principles in this behalf which have been reproduced in the impugned judgment. In point (f) of the order dated 28th March, 2000 it is stated that the object of the Act is to protect the right and not be a source of monopoly. In point (j) it has been observed that a mark can lose its distinctiveness by non-user. Thus the enforcement of the right of exclusive use of a trade mark will depend on continuous use of the mark by the proprietor. In point (k) it has been observed that the Court shall not protect the right of proprietor unless there is sale of the articles to which trade mark is attached or related.

27. The learned Single Judge though has considered the observations in the Cluett Peabody's case (supra), was of the view that the said judgment would have no application to the facts of the present case as in view of learned Single Judge the plea about the non-user had not been taken in the written statement and further registration of the trademark gives to the registered proprietor the exclusive right to use the same in relation to the goods in respect of which the mark is registered. The first reason which weighed with the learned Single Judge, in our considered view, is not borne out of the records because the written statement plea has specifically been taken of non-user by the respondents. Reference in this behalf may be made to para 7 and para 8 of the written statement. In para 8 the appellant specifically states “since no goods under the alleged trademark ‘555’ have ever been sold in the Indian markets there is no question of effecting any sales thereof to the tune of a single penny what to talk of the figures of the lakhs of rupees as alleged in para under reply of the plaint.”

28. Thus we find that a specific plea has been raised aboutnon-user and in view of the termination of the inter se agreement between the respondents in 1981 there is nothing to show any sales thereafter. Even prior to that date sales have been shown only for a short period of 1½ years from 1977 to 1979. No material has been placed to show transborder sales or reputation in the product.

29. We are in agreement with the view of the learned Single Judge of the Bombay High Court that if there is non-user for a long period of time then by mere registration of the mark continuing the respondents would not be entitled to any injunction. This view is further reinforced by the judgment in Imperial Group's case (supra), wherein it was held that where there is no trading to give rise to a goodwill there is no interest to be protected by a trademark and such a trademark cannot exist in vacuum.

30. Another aspect which is required to be considered is the contention of the appellant that for grounds of delays and laches the respondent is not entitled to any relief. There is no doubt about the proposition that mere delays and laches would not suffice if the rights were in respect of a registered trademark though it may have some bearing for consideration of injunction at the interlocutory state in weighing the balance of convenience. In terms of the cause of action paragraph 36 of the plaint, cause of action is stated to have arisen in June, 1993. Suit was filed in 1995. This fact has to be read along with the fact that the appellant had been using the card and the label with ‘555’ mark at least since 1991. At the same time respondent No. 1 has admittedly no production or sale in India since 1981. It is not even a case of production in India meant for exports. The trademark of ‘555’ was registered in 1951. The only sales in India as per record are for a short period in 1977 to 1979 for a period of 1½ years. All these factors taken together pursuade us against granting any interim relief to the respondents. It may be relevant to add that there was no interim order granted in favour of the respondents when the suit was filed and the interim order was granted for the first time vide impugned order dated 28th March, 2000 which was also stayed by the Division Bench soon thereafter on 4th May, 2000. Thus the appellant has been carrying on the business with his label and card for the last more than 10 years. There has also not been any material placed on record to show that respondent No. 1 has come back into business in India at any subsequent stage of time. We also draw strength from the Division Bench's judgment of this Court in Synthetic Moulders' case (supra), that while considering granting temporary injunction, the relevant amount of damage which is likely to result in case the plaintiff ultimately fails is also a factor to be considered.

31. It is no doubt true that the appellant has failed to avail of the remedy under Section 46(1)(b) of the Act for seeking cancellation of the mark but that would not be fatal for the appellant in the facts and circumstances of the case.

32. There can be no doubt about the proposition that the considerations in an action for infringement of a mark and in passing of action is different as set out by the Supreme Court in Rust on & Hornsby's case (supra). However, in the present case the learned Single Judge himself found that there was distinctiveness between the two cards and labels and we have agreed with the said conclusion. The mere mention of the trademark ‘555’ along with the other features prima facie, does not give any rights to respondent No. 1, taking into consideration the non-user of the registered mark for over a long period of 40 years (except in a short intervening period of about 1½years from 1977 to 1979).

33. On appreciation of the facts of the case we are unable to agree with the conclusion of the learned Single Judge that the adoption of the trademark ‘555’ is dishonest. Delay simplicitor may not be a defence in a suit for infringement of trademark but where a trader allows a rival trader to expend money over a considerable period in building up a business with the aid of a mark similar to his own he will not be allowed to stop his rivals' business. If he were permitted to do so great loss would be caused not only to the rival trader but to those who depend on his business for their livelihood. (Reference to Law of Trade Marks and Passing Off by P. Narayanan, 5th Edition, page 441).

34. It may, however, be pointed out that there cannot be any hard and fast rule in determining the cut-off point when non-use of the registered mark would disentitle the trader to any protection. It would depend upon facts and circumstances of each case.

35. There is another aspect to this matter. We are dealing with the matter at the interlocutory stage. The rights have yet to be finally decided in the suit. There can be a protective mechanism when rights of two parties are balanced in appropriate manner. The alternative to the interim injunction can be to direct the appellant to maintain an account of profits every year and file the same in the Court. We are pursuaded to take this direction as the object of the Trade Marks Act is to protect the proprietary right of a registered trademark holder but not to be a source of monopoly where the holder of the trademark does not, prima facie, carry on business for over a long period of time, as in the present case.

36. The result is that the appeal of the appellant impugning the part of the judgment dated 23rd February, 2000 restricting the use of the trademark ‘555’ is allowed and the impugned part of the judgment is set aside. The cross-objections filed by the respondents are dismissed. The appellant's application for interim relief is dismissed but subject td the condition of the appellant to maintain an audited account of profits every year, a copy of which shall be filed in the suit with an advance copy to the respondents on or before the 30th June. For the previous financial year the appellant shall file such accounts of the profit for the period commencing from 1st January, 1996 till date within a period of six weeks from the date of the present order.

37. In the facts and circumstances of the case, the parties are left to bear their own costs.

Appeal allowed.