Syed Sadat Abdul Masud, J. - (1.) This is an appeal against the order of S.P. Mitra, J. dated March 16, 1965, whereby the Plaintiff -Appellant's application for injunction, restraining the Respondents from infringing the Appellant's registered trade marks or from using the marks 'SKYREX' in respect of glasswares manufactured by the Respondent, was dismissed. The Appellant is a manufacturer of international reputation in respect of domestic and industrial glasswares including laboratory and scientific glasswares which are being sold in India and in other parts of the world under the trade mark 'PYREX'. The Appellant since 1943 had duly got itself recorded in the register of the trade marks at the Trade Marks Registry, Bombay, as a registered proprietor of Certain trade marks particulars of which are set out in para 3 of the petition. According to the Appellant, it had since 1919 used the said mark 'PYREX' on scientific, nautical, surveying and electrical apparatus and instruments, various kinds of glassware, cooking utensils and other goods. According to the Respondent, they independently started manufacturing glasswares for scientific laboratory and domestic use and on or about October 21, 1957, filed the application No. 181937 for the registration of the mark 'SKYREX' in class 9 for certain specified items of scientific and laboratory glasswares and another application No. 181939 for the registration of the same mark in class 21 for certain specified items of domestic glasswares. The said application No. 181939 was advertised in the; trade mark journal and the Appellant thereafter lodged a notice of opposition No. 4085 on August 8, 1958 to the registration of the mark 'SKYREX'. The Respondents, however, did not proceed with the said applications. In the meantime, on June 19, 1958, the Respondent No. 1 made two applications to the Registrar for registration of the trade mark 'SKYREX', namely, application No. 185547 in respect of "apparatus, instruments and equipments included in class 9 all for scientific purposes and for use in laboratories" and application No. 185548 in respect of "glasswares and domestic wares included in class 21". The mark 'SKYREX' was proposed to be used by the Respondent No. 1 on June 19, 1958. The said two applications were duly advertised in the trade marks journal and the Appellant opposed the registration of the said applications. The Deputy Registrar of Trade Marks, Calcutta, after hearing both parties refused the said applications by his order dated July 7, 1964. Inspite of the said order dated July 7, 1964, the Respondents continued to sell their goods under the mark 'SKYREX'. Accordingly, the Appellant, on August 29, 1964, instituted this suit against the Respondents or, inter alia, a perpetual injunction restraining the Respondents and their agents from infringing the Appellant's registered trade marks or from using the mark 'SKYREX' and from passing off or from assisting others to pass off the Respondents' goods for the goods of the Appellant and in particular, from manufacturing (sic), selling, any goods by or under the mark 'SKYREX'. The Appellant, thereafter, on August 31, 1964, moved the present application, before the Interlocutory Court for an injunction restraining them and their servants and agents from using the mark 'SKYREX' on their goods or from manufacturing, stocking, selling or' advertising for sale any goods by or under the mark 'SKYREX'. On or about March 16, 1965, S.P. Mitra, J. after hearing both parties dismissed the said application and it was against that order that the present appeal was preferred.
(2.) Mr. Sankar Banerjee, Learned Counsel for the Appellants, has contended before us that the Appellant made out a prima facie case in support of its prayer for injunction and as such, the learned Judge was wrong in dismissing his client's application. He urged the following grounds in support of his contention: (a) Admittedly, the Appellant company is a manufacturing concern of international reputation in respect of domestic and industrial glasswares and has been manufacturing and selling them long before the Respondent commenced their business. They are the proprietors of the various trade marks registrations in India since 1943 and as such, they have got the absolute legal right to use their goods under their trade mark, 'PYREX'. (b) The Respondent No. 1 on October 21, 1957, made an application for registration of the trade mark 'SKYREX' under mark No. 181939 in respect of "glasswares and domestic wares included in class 21 particularly tumbler glasses, wine glasses, etc." The said application in due course was advertised in the trade marks journal and the Appellant forthwith lodged a notice of opposition No. 4085 on August 8, 1958 to the registration of their mark 'SKYREX'. As a result of such opposition the Respondents did not choose to pursue the matter and the application was consequently treated by the Registrar as abandoned. (c) On June 19, 1958, the Respondent made applications Nos. 185547 and 185548 before the Registrar for registration of the trade mark 'SKYREX' in respect of their goods. The said applications were opposed by the Appellant and the Deputy Registrar of Trade Marks, Calcutta, by order dated July 7, 1964, refused the said applications. (d) The Deputy Registrar is the statutory authority who has finally decided against the Respondent in disallowing them to sell their goods under the mark 'SKYREX'. The Appellant has got the legal right under the Trade Marks Act, 1946, to prevent other parties from interfering with his legal right to do this business under their trade mark 'PYREX' until the said order of the Registrar is set aside by a competent Court.
(3.) Mr. Banerjee has submitted that the learned Judge should not have rejected "his client's application merely on the ground of delay in moving such application Mr. Banerjee has admitted that the Appellant had knowledge of the fact that the Respondents were selling goods under their trade name 'SKYREX' in or about 1960, but his client at no stage acquiesced in such invasion of its legal right inasmuch as the Appellant had been opposing the Respondent's applications for registration before the Deputy Registrar. According to him, it was not desirable that his client should have rushed to the Court in or about 1960 when already proceeding before the statutory authority was going on in" respect of the Appellant's said legal right. His client waited for the decision of the Registrar and it was only when the Respondent No. 1, in spite of the said decision, refused to stop manufacture and sale of its goods under the trade mark 'SKYREX', the Appellant had to institute the present suit and asked for injunction. The delay, if at all, was legitimately explained and the learned Judge should have accepted the said explanation. Mr. Banerjee has also added that the learned Judge should not have dismissed the application on the ground of balance of convenience. According to him, the prohibition of importation of the Appellant's goods in respect of domestic glasswares and also the suspension of the import license thereof should not have weighed with the learned Judge in dealing with the said application. The Appellant, he submitted, has an absolute and unqualified legal right and to substantiate such legal right his client had made out a prima facie case and therefore, his client should have been protected by an order for injunction.;