S. Ravindra Bhat, J.:— The Plaintiff manufactures and sells detergent products, and claims to have developed unique and novel detergent products based on its research. It markets and sells such products under the trade mark “SUPER BRIGHT” followed by suffixes, such as EL, EL-C, EL-81, HD ULTRA, etc., which identify specific detergent products. The plaintiff relies on documents show that it has been using the trade mark from 1990 in respect of detergent chemicals. In 1999 the plaintiff developed two different products and starting marketing them as ‘SUPER BRIGHT ULTRA’ and ‘SUPER BRIGHT EL-81’.

2. In 2001 the plaintiff initiated talks for supply of its “SUPER BRIGHT” range of detergent to various Army hospitals throughout the country. The plaintiff contends to having developed specific formulations for the Army and that on 12th October 2004 Director General of Armed Forces (Medical Services) called it for technical discussions regarding the products. The sample of the plaintiff's product was tested and approved by the army establishments. In June 2004 the plaintiff was awarded ISO 9001 : 2000 Quality System by International Certifications Limited. On 17th August 2006 the plaintiff applied for registration of its trade mark ‘SUPER BRIGHT’ under Class 3 of the Schedule to the Trade Marks Act, 1999; the application is pending registration. In the plaint the plaintiff has given the sale figures for the product ‘SUPER BRIGHT’ for the last four years are as follows:

Year Net Sales (Rs.) 2003-2004 1,26,44,573.36 2004-2005 1,43,75,606.61 2005-2006 2,43,36,047.47 2006-2007 4,87,17,617.88

3. The plaintiff claims ownership of SUPER BRIGHT on account of brand popularity and use and says that any use to the contrary to, or without its leave and consent would constitute passing off. On 20th December 2004 the Director General of Ordinances Services (Procurement Division) invited tenders for supply of “SUPER BRIGHT Bleached (not for coloured cloth)”. The technical specifications of the product were also indicated. The requirement as to marking on the packages, as indicated in the terms and conditions attached to the tender form reads as under:

“6. Marking: On initial pack,

(a) Cat/Part No. NIV, Nomenclature, Name of manufacture, quality contained therein shall be legibly and indelibly marked on each container.

(b) On final pack. Cat/part No. NIV, Nomenclature, Name of manufacture, quality contained therein shall be legibly and indelibly marked on each container also A/T No. and date, inspection Note No. and date, Name and address of manufacturer, Name and address of the consignee should be clearly visible.

The tenderer has also to fill the questionnaire which is column No. 8 requires to indicate “whether you are the manufacturer of the stores”

4. The plaintiff, states that it came to know sometime in June 2007 that the defendant had bid for the supply of the SUPER BRIGHT range of chemicals to Army Hospitals. Immediately the plaintiff published a trade mark caution notice in leading newspapers cautioning the public not to deal in the products under the trade mark SUPER BRIGHT except those originating from it (the plaintiff). It also wrote to the Government authorities (Armed Forces) informing that the trade mark ‘SUPER BRIGHT’ is its property and that the defendant had no authority to use that trade mark. A legal notice was issued to the defendant. The plaintiff contends that there was a likelihood of confusion on the part of the public, in respect of the trade mark ‘SUPER BRIGHT’ since the mark and goods are identical and that the defendant's use of such mark was both deceptively and confusingly similar, and dishonest and mala fide. The plaintiff therefore, filed this suit on 13th August 2007. The interim injunction application (IA No. 9140 of 2007) was also moved. After summons were issued, the defendant appeared, and caused a statement to be made on its behalf, on 20th August 2007 that it “… has been supplying goods to Army and other authorities under the same trademark since the year 2005.” This court then made a conditional order on 20th August 2007 that no injunction was being issued, and that in case the statement was wrong, the court would consider making a compensatory order.

5. The defendant contends that the Army follows two separate processes for inviting tenders. One is PAC tendering, resorted to when the Army seeks to purchase a proprietary product of a manufacturing firm. There is also an open tender mode of procurement for common use items of generic or commercial specifications to ensure adequate competition. The tender in the instant case was invited following an “Open Tender” procedure whereby the Army had used the word ‘SUPER BRIGHT’ as a descriptive term to describe the product as per specifications provided in the tender documents, and not as a brand name for the plaintiffs products. Ten parties participated in the tender for supply of the product ‘SUPER BRIGHT’ detergent.

6. The defendant submits that it was awarded contract by the Army for supply of both products ‘SUPER BRIGHT EL and EL-81 on 23rd June 2005. Likewise tenders were invited by the Army for the supply of “SUPER BRIGHT Bleach” in February 2006 and pursuant to the bid offered by it; the defendant was awarded that contract on 25th April 2006. Another tender advertisement was issued on 28th September 2006 for ‘SUPER BRIGHT Bleach’ and the defendant was awarded that contract on 31st May 2007. This court took up the application IA No. 9140 of 2007 for disposal and formulated the following question:

“5. The interesting question of passing off that arises is - whether in such circumstances, where a single consumer invites tenders for a particular product using the mark ‘SUPER BRIGHT’ along with its suffixes and several persons submit their bids for the same products, do such persons intend to pass off their products as those of others?”

7. The court held that the question was a debatable one, and could not be decided at that stage “without examining the evidence that may he led by the parties.” The court also held that the plaintiff was aware in December 2004 that “there was (sic were) other parties, including the defendant, who were submitted their bids and that at times the tenders were not being awarded in part or in whole to the plaintiff.” This, it was held that this would “disentitle the plaintiff to an interim injunction and the plaintiff would have to wait for a final decision in the suit.”

8. The plaintiff appealed against the above judgment of this court. The Division Bench, by its judgment and order, upset the order, and granted temporary injunction. It was, inter alia, held that:

“Admittedly, the defendant is supplying the product in question, using the plaintiff's

trade mark ‘SUPER BRIGHT’. The only defence of the defendant is that as far as the army is concerned there is no deception and since the supplies are being made only to the army and in strict consonance with the terms of the tender and therefore there is no cause of action in a suit for passing off. The precise averment made by the defendant/respondent in para 8 of its reply dated 1st September 2008 in the present appeal is: “…the Respondent only supplies its product to the Army and has been using the words “Super Bright” in relation to its product and in connection with the tenders invited by the Army since 2005.” It is not possible to accept the submission of the defendant that the army is under no deception that the product supplied by the defendant is manufactured by the plaintiff and not the defendant. Admittedly, the defendant does not manufacture the product in question under the trade mark ‘SUPER BRIGHT’. It uses this mark for its products only when supplying to the Army. This alone should be sufficient to negate the claim of the defendant about there being no deception. Further, it is clear from the authorisation letter dated 4th June 2007 that what was tested by the Army authorities and cleared for supply were only the product of the plaintiff and that “no other products were tested/approved.” Given the open tender process it is possible that the army was under the impression that the defendant and other manufacturers had purchased the product of the plaintiff in the market and were supplying it to the army. This is very much contemplated from the questions asked of each tenderer in the open tendering process, which have been set out earlier. The defendant in the instant case does appear to have held out to the army that the product supplied by it is ‘SUPER BRIGHT’. It is not as if the defendant informed the Army that the product supplied by it is not the plaintiffs product purchased from the market. In the circumstances, it is not possible to accept the defendant's contention that the Army was not under any confusion that the defendant is supplying its own product and not that of the plaintiff's. The supply of its product by the defendant under the mark SUPER BRIGHT without informing the army that it is not manufacturing the said product under the mark SUPER BRIGHT is prima facie a dishonest use of the plaintiffs mark. This essential feature of the case cannot be ignored and belies the claim of the defendant about there being no deception..

32. Accordingly the impugned order of the learned Single Judge is set aside. There will be injunction in favour of the plaintiff appellant restraining the respondent defendant from manufacturing or authorising the manufacture, selling or offering for sale, marketing, advertising, promoting, displaying or in any other manner whatsoever using the trade mark SUPER BRIGHT and/or SUPER BRIGHT EL and/or SUPER BRIGHT EL-C and/or SUPER BRIGHT EL 81 and/or SUPER BRIGHT HD ULTRA and/or SUPER BRIGHT Bleach and/or any other trade mark which is deceptively or confusingly similar to the above trademarks. The injunction will operate prospectively subject to the condition that the defendant will maintain complete accounts of all the sales made by it of the products sold to the army or any other persons till the date of the present order. The injunction will continue till the disposal of the Suit. We are informed that the Army authorities have since desisted from inviting tenders for supply of SUPER BRIGHT products through the open tender process. In any event, the law as explained in this judgment will continue to govern future similar tenders…”

9. The defendant carried the matter in appeal by special leave, to the Supreme Court, which set aside the order of the Division Bench, but desisted from expressing any opinion, and instead required this court to hear the injunction application afresh and make an order in accordance with law.

10. Learned counsel for the parties reiterated their respective positions. It was urged by the plaintiff that it developed special formulations for the Army and on 12-10-2004, the Director General of Armed Forces called it for technical discussion about the chemicals. It is alleged that the plaintiff's products were tested, and that as on date, it is the only concern whose products are approved, (in the concerned class), for use by the Army. It is alleged that the cause of action for injunctive relief arose, the moment the plaintiff became aware, in 2007 that the defendant sought to use the mark on the packages for supply to the Army. It is urged that the submission of bids, and the grant or refusal of tenders to any concern, are not matters of public exercise since it is not possible for tenderers to know which others submitted their bids. Reliance is also placed on the tender bid furnished to the Army authorities, by the defendant, in 2005, which cited the protocol or standard used, to be NP-5, NP - 4.4 and NP-3; it is submitted that “NP” denotes Navin Polycon, i.e the plaintiff concern. The plaintiff argues that Ministry of Defence communications of 4th June, 2007 also establish that its products were tested and found to be most suitable.

11. The plaintiff, to establish its claim for prior user and widespread reputation, also relies upon invoices evidencing supplies of its products, in April 2004 (Hotel Le Meridian); 2005 (Hotel Taj Palace); 21-10-2003 (the Grand Hotel); 28-11-1996 (The Surya Hotel) and purchase orders issued by Hotel Surya in March and April, 1990.

12. Reliance is placed on the decisions reported as Ramdev Food Pvt. Products v. Arvindbhai Rambhai Patel, 2006 (33) PTC 281 and Globe Super Parts…Plaintiff; v. Blue Super Flame Industries…Defendant. 1986 PTC 61 to emphasize that the denial of temporary injunction to the plaintiff would destroy the efficacy of its trademark, which has been in use for over 18 years. It is argued, on the strength of the decisions reported as 1. Baker Hughes Limited…Plaintiff v. 2. Baker Hughes Incorporated…Plaintiff 1998 (18) PTC 580, and Cadilla Health Care v. Cadilla Pharma 2001 (5) SCC 73, that the products or goods, as well as the sophistication of the buyer(s) is a very relevant consideration. In this case, the plaintiff's products were not only approved by the army authorities, but in fact constituted the standard for its decision to procure them from the market. In these circumstances, the defendant's attempt at appropriating the mark, for use in relation to identical goods, is plainly not bona fide.

13. The defendants argue that the claim for injunction cannot be entertained. It is submitted that the plaintiff has not disclosed that the Army had, during the period 2004 and 2007, issued as many as 11 invitations to tender, seeking quotations from willing suppliers of detergents. The army followed the “Open Tender” procedure in which procurement of items of common use of generic or commercial specifications to ensure adequate competition. The defendants highlight Section 4.4.1 of the Defense Procurement Manual, for 2006 and Para 4.13.3 which read as follows:

“….4.4.1 The details of award of tenders/contracts must invariably be placed on the website/bulletin of the organization as directed in the Commission's Order No. 13/3/05 in F. No. 004.VGL/4 dated 16.3.2005…

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4.13.1 In order to facilitate the bidders to submit their bids in time and with assurance of receipt by the department, a tender box is to be placed in an easily accessible but secured place clearly indicating the name of the department and the term “Tender Box”. On the pre-published tender opening date, the box is to be opened by the tender opening official, preferably a committee of at least two officials, at the time and place already promulgated. The firm's authorized representatives are invited and permitted to attend the tender opening.

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4.13.3 The tender opening officer/committee, should open the envelops in presence of the trade representatives, serially number each bid and initial with date on each page of the tender. The prices and important terms and conditions should be encircled and initialed in red ink and any alterations in tenders made by the firm should be initialed in red legibly to make it perfectly clear that such alterations were present in the tender at the time of tender opening. The tender opening officer/committee should read out the name of the firm, EMD if any, and the prices, taxes, duties quoted by the firm…”

14. It is submitted by the defendant that the plaintiff was aware about the award of contract to it (the defendant) as of June, 2005, since its complaint, made to the army authorities, in 2006, led to the award of contract being kept in abeyance. The defendant relies on the documents supplied by the army authorities, pursuant to the queries under the Right to Information Act, in June, 2006, copies of which have been filed along with IA 13138/2009. It is therefore argued that the plaintiff's claim for injunctive relief cannot be granted, as it is hit by laches as well as acquiescence. It is submitted that the combination of SUPER and BRIGHT, in respect of detergent products, are generic and descriptive, as they have distinct association with the goods and their perceived or claimed attributes. The defendant urges that having regard to the totality of circumstances, the injunctive relief claimed cannot be acceded to.

15. The question which the court is called to rule upon, in these interlocutory proceeding, is whether the plaintiff has prima facie established that it is the owner and continuous user of the trademark SUPERBRIGHT in relation to a specific kind of detergent.

16. The plaintiff's claim is founded on claimed continuous use of the mark, since 1990; a few invoices in support of use, are relied upon. The distinctiveness acquired, and the association of the word mark in relation to detergent, is sought to be reinforced, through representations in the print media, for which copies of advertisements, are produced. Copies of such advertisements are at pages 16 to 27 of the plaintiff's list of documents. These include the brochure/write up of the plaintiff's range of products, and write ups/advertisements in the “Hotel and Food Service Review” for some months in the year 2004; a couple of advertisements and write ups in the “Hospitality Talk” (magazine?) have been produced. The plaintiff also relies on its growing sales figures, and advertisement expenditure, incurred by it, over the years. The defendant, on the other hand, urges that the plaintiff's mark cannot claim distinctiveness, as it is descriptive, and more importantly, that the present action cannot be pressed into service as a tool to stifle competition. The latter contention is in the context of the army authorities inviting a tender for supply of superbright detergents. The defendant also urges that it participated in no less than 11 public tender processes, issued by the army authorities, and that in fact its bid was accepted in 2005; consequently, the present suit for injunction based on alleged passing off, is hit by laches and acquiescence. The defendant claims to be using the SUPERBRIGHT mark in relation only to detergent supplies made to army authorities.

17. In an action for passing off, unlike a trademark infringement suit, the claimant has to establish three essential elements, i.e the mark's extensive use by the plaintiff, to disclose its distinctiveness (as a source identifier of its products), the appropriation of the mark by the defendant, and the trademark owner's injury, or a reasonable likelihood of such injury (Ref. Safyam Infoway Ltd. v. Sifynet Solutions Pvt. Ltd. (2004) 6 SCC 145 : AIR 2004 SC 3540; Cadilla Healthcare Ltd. v. Cadilla Pharmaceuticals Ltd. 2001 (5) SCC 73). In Cadilla, in fact, on a detailed review of the previous judgments, the Supreme Court indicated the guiding principles as follows:

“35. Broadly stated, in an action for passing-off on the basis of unregistered trade mark generally for deciding the question of deceptive similarity the following factors are to be considered:

(a) The nature of the marks i.e whether the marks are word marks or label marks or composite marks i.e both words and label works.

(b) The degree of resembleness between the marks, phonetically similar and hence similar in idea.

(c) The nature of the goods in respect of which they are used as trade marks.

(d) The similarity in the nature, character and performance of the goods of the rival traders.

(e) The class of purchasers who are likely to buy the goods bearing the marks they require, on their education and intelligence and a degree of care they are likely to exercise in purchasing and/or using the goods.

(f) The mode of purchasing the goods or placing orders for the goods.

(g) Any other surrounding circumstances which may be relevant in the extent of dissimilarity between the competing marks.”

18. The plaintiff's stated claim is that its products and detergents are useful in removing persistent stains, such as grease and blood and medical stains. Its use has also been in the hospitality sector, where its customers have ordered the products from 1990. As far as publicity is concerned, the copies of advertisements placed on record reveal that they too, were confined to the hospitality sector.

19. The defendant has placed on record documents, which prima facie point to the use of “Super Bright” by the Army for procurement of detergents, since 2004 (Tender documents, dated 20-12-2004 and February, 2006. Ref to defendant's documents at Pages 1-32 and 54-70). The defendant bid in some of these tender processes, and succeeded in securing the tender on 23-6-2005 (Ref Defendants documents at pages 52-53). The Letter of intent apparently was issued to the defendant on 31-5-2007. The plaintiff's answer to these is that the tendering process is confidential, and each bidder does not know the identity of his competitor. This is prima facie, not a sustainable argument, in view of Paras 4.1.11 and 4.1.13 of the Tender processing procedures contained in the Manual, which have been extracted in the preceding portion of this judgment; they disclose that rival bidder's representatives are present at the bid opening stage. This would mean that the plaintiff had occasion to be represented when the defendant participated in the bids in 2005. Furthermore, the answer to the defendant's query in the appeal filed under the Right to Information Act, in the form of list of bidders in the thirteen tender processes between January 2005 and September, 2007 would reveal that both the plaintiff and the defendant participated in the bid on 12-1-2005, 13-1-2005, 17-2-2005, 23-1-2007, 24-1-2007 and later on 19-9-2007 (Page 362, Part III of the court file). Further, the copy of the official notings supplied to the defendant, again under the RTI Act, would reveal that in June, 2006, the army authorities had to deal with a complaint by the plaintiff. The recommendation sheet, suggesting action, inter alia, says as follows:

“4. From the above it can be inferred that the complaint is based on rivalry between the 2 parties, and no strength is available in the complaint. Hence may be ignored. If Navin Polycon is convinced that we have favoured S.B Equipments they may be called for open discussion which we may reply suitably….”

The noting contained in the said document, reads as follows:

“Pending resolution of the issue of complaint by Navin Polycon a commn has been sent to SQAE (GS) to hold over letter of 29th May 2005 (regarding amendments to test protocol of S.B Equipments in abeyance till further comm. (Flag A).. Submitted for orders please…”

20. The documents (Page 375 of the court file, Part III) also reveals that the recommendation to withdraw the letter keeping the defendant's request in abeyance, was made on 31 August, 2006. These are not speculations, but prima facie, unassailable matters of the record, as they are answers under the Right to Information Act. They point to the plaintiff's knowledge, about the defendant's use of the SUPERBRIGHT mark, in relation to detergents, and also its moves, within the army decision making process, to stall issue of contract, that would have paved the way to the defendants, goods being supplied to the Army. In these circumstances, the court is of the view that the plaintiff did not reveal the truth, while approaching the court, when it did, and asserting that it became aware “recently” in June, 2007 that the defendant was using the said mark. Having regard to the fact that the suit is a passing off claim, and not one founded on a registered trademark, this aspect assumes considerable significance, as the relief of injunction - even temporary injunction, is equitable, and pre-supposes that the plaintiff reveals all material facts and does not suppress anything important. The plaintiff in this case clearly was aware that sometime in 2005-2006, the defendant was in the same business, and had placed a bid successfully, for supply of the Superbright class of detergent products; the defendant had apparently bid a lower amount, and sought for amendment of testing protocols (as did the plaintiff). The latter sought to block the request, and succeeded in stalling the process for nearly a year. These are material circumstances, which weigh against the plaintiff.

21. The other aspect which the court has to consider is the nature of the plaintiffs use of the SUPERBRIGHT trademark. Its claim to be first user and reputation is premised on a “sister” concerns alleged continuous use, since 1978; it also says that the mark has been used since 1990, when several prominent hotels had placed orders for its products. Similar purchase orders and invoices, for the years 1994, 1996, etc. have been relied on. However, as far as widespread use, and publication in the publication goes, the plaintiff has relied on advertisements in 2003 and 2004 in certain hospitality based or related magazines. The circulation and readership of these magazines is unknown; it is unclear whether they cater to other segments of the detergent market, like hospitals and public users. Here too, the lack of any clarity in information is important, because injunctive relief in trademark passing off claims is primarily founded on acquired distinctiveness. It is not every trader or retailer's name, which is entitled to protection, but the distinctiveness associated with the mark, based on widespread knowledge among the consumers, as a result of diligent and continuous effort toward that end, by the trademark user, which is entitled such treatment. As held by this court in Rob Mathys India Pvt. Ltd.… v. Synthes Ag Chur… 1997 (PTC) 669 (Del) “Goodwill, as the subject of proprietary rights, is incapable of subsisting by itself. It has no independent existence apart from the business to which it is attached.” In Cadilla, the Supreme Court, while emphasizing the proper approach and indicating the tests, significantly, held that the following two indicators are relevant:

“(e) The class of purchasers who are likely to buy the goods bearing the marks they require, on their education and intelligence and a degree of care they are likely to exercise in purchasing and/or using the goods.

(f) The mode of purchasing the goods or placing orders for the goods.”

In this case, the argument about plaintiff's injury to its goodwill and reputation is directly founded on the defendant's entering into contract with the army authorities for supply of detergents. Both the parties are clearly competitors. The goods - rather the customer is common, i.e the Indian Army. This customer, or class of customer is unquestionably discerning. The plaintiff's other customers and clients, are also clearly institutions, which have placed orders on it, based on the performance of its product. In these circumstances, the prima facie indications are that there is little or insignificant scope for consumer confusion, or likelihood of deception.

22. An important aspect of this case is also that the rival word marks are concededly SUPERBRIGHT, which is a combination of two common words SUPER and BRIGHT. There is some association with the product, i.e detergents, which cleanse articles such as clothes, and other objects. The descriptive association clearly is a claimed attribute of the product, i.e its ability to cleanse the goods thoroughly (and therefore, the “bright”). The SUPER part of the mark, apparently is reference to the attribute of superlative (SUPER) performance of the detergent. In such cases, there is a body of authority starting with Office Cleaning Service v. Westminister Window and General Cleaners 1946 RPC 39 which says that unless a descriptive mark has acquired a degree of secondary meaning, the use by a competitor in the trade, with some modification does not constitute passing off. These judgments include Victory Transport Co. Pvt. Ltd. v. District Judge AIR 1981 All 421; Durga Putt Sharma v. Navaratna Pharmaceutical Laboratory AIR 1965 SC 980 - where the rival marks included “Navratna” in relation to pharmaceuticals and Universal Winding Co. v. George Hattersley & Sons 1915 (32) RPC 479. In a similar vein, in Sona Spices Pvt. Ltd. v. Soongachi Tea Industries 2007 (34) PTC 91, the aspect of the plaintiff being required to establish, even prima facie, reasonable likelihood of confusion, on an overall consideration of the circumstances, based on the acquired distinctiveness and reputation of the trademark in question, was underlined.

23. The judgments relied on by the plaintiff - Globe Super Parts…Plaintiff; v. Blue Super Flame Industries…Defendant. 1986 PTC 61 and Super Seals India Pvt. Ltd. v. Mantri Brothers 1986 PTC 341, are inapplicable. In the latter case (Super Seals) the claimant was proprietor of a registered trademark, which meant that the action was one for infringement, not passing off. The principle applicable in such cases is that if resemblance or identity is established, the court looks no further, and is expected to injunct the defendant (Ref. Midas Hygiene Industries (P) Ltd. v. Sudhir Bhatia 2004 (28) PTC 121). In the other case (Globe Super Parts) though the action was one for passing off, the judgment was a final one, after a full trial, and after the court weighed all the evidence led before it. In the present case, the parties have only relied on documents, and have not tested the strengths of their respective cases in a full blown trial. The court has to see the broad elements of the two sides, based on a prima facie consideration. Necessarily, therefore, the standards applicable before and after a trial, are, therefore, different.

24. The court is constrained to attach significance to the defendant's contention that the plaintiff, despite knowledge of the defendant's use of the trademark - witness the complaint preferred by it to the army authorities - chose to remain silent, and approached the court almost one and a half year after becoming aware of the defendant's trademark usage, (of the SUPERBRIGHT mark). The importance of this element - of acquiescence - was underlined by the Supreme Court, Power Control Appliances v. Sumeet Machines (Pvt.) Ltd., 1994 (2) SCC 448 as follows:

“Acquiescence is one of the defences available under Section 30(1)(b) of the 1958 Act Acquiescence is sitting by, when another is invading the rights and spending on it. It is a course of conduct inconsistent with the claim for exclusive rights in a trade mark, trade name, etc. It implies positive acts; not merely silence or inaction such as is involved in laches. “It is important to distinguish mere negligence and acquiescence.” Acquiescence is one facet of delay. If the plaintiff stood by knowingly and let the defendants build up an important trade until it had become necessary to crush it, then the plaintiffs would be stopped by their acquiescence. If the acquiescence in the infringement amounts to consent, it will be a complete defence”

The materials on record suggest that the plaintiff was aware and was indeed a knowing competitor of the defendant, in the trade when both of them were submitting rival bids to the army. Even if the plaintiff's knowledge is assumed to be in 2005, besides the fact that it made a complaint to the Army which successfully stalled grant of contract, no action was taken by it to assert the right in a court of law. This clearly points to delay, and strongly suggests acquiescence, disentitling it to temporary injunctive relief.

25. In the light of the above prima facie conclusions, the court is of the view that the plaintiff is not entitled to ad-interim temporary injunction. Consequently, IA 9140/2007 is dismissed.