Case: Power Control Appliances Vs. Sumeet Machines Pvt. Ltd

Mohan, J. 1. All these appeals can be dealt with under a common judgment. The civil appeal Nos. 2551-2552/93 are by the first plaintiff while Civil appeal No. 2553/93 by the second plaintiff2. The plaintiffs filed three suits on the file of the High Court of Madras(i) C.S. No. 343 of 1992 complaining of infringement of the copyright of the first plaintiff (Power Control & Appliances Company)(ii) C.S. No. 431 of 1992 alleging the violation of the registered trade mark Sumeet No. 263836 in Part-A in Class 7 for machines (electric) for kitchen use;(iii) C.S. No. 432 of 1992 claiming the design registration in the Whipper Blade of the power operated mixies3. Pending these suits, four applications No. 226, 227, 271 and 272 of 1992 were taken out, two in C.S. No. 343 of 1992 and one each in C.S. Nos. 431 and 432 of 1992, respectively4. The facts are common to all the suits and the applications. In C.S. No. 343 of 1992 in the applications No. 226 & 227/1992, the plainitiffs prayed for an interim injunction to restrain the respondents (defendants) from using, distributing, printing or causing to be printed the work as contained in Documents No. (1) recipe book and instruction manual, (2) guarantee card and (3) outer carton and the work as found in Document, No. 4, 5 and 65. In C.S. No. 431 of 1992 in application No. 271/92 an interim in junction was sought to restrain the respondent from using the registered trade mark6. In C.S. No. 432 of 1992 in application No. 272/92 the injunction was sought to restrain the respondents from using the design registration in manufacturing the mixies7. Admittedly, Mrs. Madhuri Mathur is the sole proprietrix of M/s. Power Control and Appliances Company. She started manufacturing power operated kitchen mixces, for domestic use since 1963. They are marketed since 1964 under the brand name of Sumeet. The mixy was packed in a cardboard box and at the top the pictorial and photograph display of the appliance in different colours showing the different purposes for which the mixy could be used was shown. A booklet was enclosed bearing the title Sumeet Domestic Mixer-Operating Instructions and Recipe Book. That consisted of 80 pages bound spirally in hard art paper cover. A guarantee card was also issued. All these were devised, conceived and made by the 1st plaintiff in 1982 with the assistance of artists, photographers, printers and executives employed by the 1st plaintiff for valuable considerations fully paid. As such the 1st plaintiff is the owner copyright in respect of all the above items interims of Section 17 of the Copyright Act, 1957. Sumeet mixy came to be in great demand in India and abroad. The business expanded. To cope, up with the demand, the 1st plaintiff had to float three more concerns for the manufacturing of the same appliances. The companies are(i) Power Control and Appliances (Bombay) Ltd(ii) Mathur Micro Motors and Appliances Ltd(iii) Power Control Appliances (Kandla)8. All these concerns except Power Control and Appliances (Bombay) Limited buy electric motors for their mixies from the second plaintiff Sumeet Research and Holdings Limited. That is deemed to be a public limited company. Mrs. Madhuri Mathur is the Chairman and Director. She holds 59.25% shares9. The artistic manner in which the word Sumeet is written was conceived and published by the first plaintiff. It was registered as a trade mark with effect from 18.4.1970. This trade mark was assigned to the second plaintiff on 1.1.1981. The second appellant is the owner of the copyright10. The first defendant was incorporated in 1984. It has been manufacturing and selling mainly washing machines and vacuum clearners from Septemper/October 1991. It has started manufacturing domestic mixies exactly similar to plaintiffs mixer with identical specifications excepts for power rating. The package and the pictorial display are identical. Even the booklet is pagewise reproduction including an error with respect to Design No. 146781, a design number not belonging to the plaintiffs. The contents of the guarantee card are also identical. The first defendant is affixing on each of the appliances the registered trade mark Sumeet belonging to the second plaintiff in the same artistic manner in which it is registered. On these allegations, it was urged that the first defendant had committed infringement of the exclusive copyright of the first plaintiff in the artistic material and trade literature displayed on the card-board box. Similarly, the operating instructions and recipe book and the guarantee card issued by them11. With regard to the components of the mixer. Mrs. Madhuri Mathur had obtained registration of their design under Part II of the Designs Act, 1911. Those components are(i) Dry grinding blade(ii) Whipper blade(iii) Polycarbonate dome(iv) Stainless steel jar with rim12. Each one of them has a specific registration number. Though the statutory period of 15 years or the validity of the copyright had elapsed on 23-5-1992 concerning items (i), (ii) and (iv), as regards whipper blade the validity of registration is up to 5.4.1994. Therefore it is not open to any one, to infringe the same. Thus, the applications on the grounds came to be preferred13. The first defendant did not file the written statement. However, he filed his counter-affidavit. The stand taken by him is that he (Ajay Parkash Mathur) is the eldest son of Mrs. Madhuri Mathur. On his return from United States, the family business, mainly kitchen appliances and mixer machines under the trade name of Sumeet had picked up by the innovative ideas and dynamic marketing strategies evolved by him. The family of Mathurs included the plaintiffs, the first defendant and others. The family was selling Sumeet Mixies since 1963. It is true that three other companies were floated. In fact, he was the director of Power Control and Appliances (Bombay) Limited until recently. Because of inter se disputes, he was obliged to leave the said company14. The first defendant company was incorporated in 1984 as Sumeet Machines Private Limited for the purpose of manufacture of market kitchen appliances under the trade name of Sumeet and other products such as washing machines. The said company itself was incorporated with the knowledge and approval of the plaintiffs-applicants. When Sumeet Machines Private Limited was sought to be registered before the Registrar of Companies, Maharashtra, a letter of no objection from the owners of the trade mark Sumeet had to be produced. The first defendant obtained letters both from the first and second plaintiff on 7.5.1984. It was only on this the company came to be registered on 5.9.1984. As a matter of fact, Mrs. Madhuri Mathur is a shareholder in first defendant, she having been allotted 5000 shares. Likewise the father of first defendant also owns 5000 shares15. Since 1986, the first defendant has been manufacturing and marketing mixies under the trade name of Sumeet. This was done with the knowledge and consent of the plaintiffs openly and concurrently. Further, Mrs. Madhuri Mathur and the father of first defendant have signed and given personal guarantees to the State bank of Hyderabad on behalf of the first defendant. The loans were secured on that basis in short, the reply of the first defendant is that the copyright trade mark and the copyright design is that of the first defendant who was conceived as a family concern. The word Sumeet was given with the blessings and consent of Madhuri Mathur and S. P. Mathur. Therefore, he has been an honest and concurrent user. In any event, the plaintiffs applications were not entitled to the reliefs on the ground of acquiescence16. The learned Single Judge as seen from the report of decision in Power Control and Appliances Co. and another v. Sumeer Machines Private Ltd. and another, held that the copyright with respect to operative instructions and recipe book, guarantee card and the outer carton of the Sumeet Kitchen Mixies vested in Power Control Appliances Company represented by the Sole Proprietrix Mrs. Madhuri Mathur, Equally, the copyright in the design registration No. 148246 in relation to whipper blade was also accepted as belonging to the plaintiff. The trade mark in the name of Sumeet with the particular artistic design registered in the name of Sumeet Research and Holdings Limited was accepted as claimed by the plaintiffs. Notwithstanding all these, the relief of injunction was not granted in view of acquiescence by the plaintiffs in the honest and concurrent user of the first defendant. Against this judgment, O.S.A. No. 144-146/1992 came to be preferred17. The Division Bench by the impugned judgment dated 26-2-1993 held that the learned Single Judge was not wrong in holding that the plaintiffs have acquiesced in the use of the trade literature and the trade mark by the first defendant. The relief in equity of injunction, if granted, will affect the interest of not only Ajay Mathur but also other members of the family who are shareholders of the first defendants company. Accordingly the appeals were dismissed. It is under these circumstances, these civil appeals have been preferred. Civil Appeal No. 2551/1993 against applications No. 226 and 227/1992 in C.S. No. 343/1992, Civil Appeal No. 2552/1993 against application No. 271/1992 in C.S. No. 432/1992 and Civil Appeal No. 2553/93 against application No. 272/1992 in C.S. No. 431/92 18. Mr. P. Chidambaram, learned counsel for the appellants submits that both the courts below having held in favour of the appellants herein that there is an infringement of the trade mark, the copyright and the design should not have dismissed the application for injunction solely on the ground of honest and concurrent user and on the plea of acquiescence. On the contrary the evidence in this case discloses that the first defendant was only marketing (but never manufacturing) from 1986. Therefore, merely because he was marketing, that cannot amount to honest and concurrent user. It was only in September-October, 1991 he started infringing the trade mark, copyright and the design. Therefore, when the suit came to be filed immediately, no question of acquiescence would ever arise. It is only on 28th of October, 1991 the first defendant invited applications for distribution 19. The conclusions of the High Court lead to strange results. Notwithstanding the finding of the court that the appellants copyrights, registered trade mark and registered design having been occupied totally consciously and deliberately without any alteration and thereby infringed by the defendant, to deny injunction in equity cannot be supported. After all the plaintiff Mrs. Madhur Mathur as an individual has 3.3 per cent of the shareholding in the first defendant company 20. To hold that the defendant was using the registered trade mark from 1984 is wrong when admittedly the first defendant company came into existence only in 1984 21. Under Sections 19 and 54 of the Copyright Act reproduction of the copyright itself is infringement unless there is specific assignments in writting by the proprietor. In this case, there is not even a plea that Mrs. Madhuri Mathuri assigned the copyright in the outer carton, handbook and guarantee card. The concept of honest and concurrent user found in Section 12(3) of the 1958 Act for securing concurrent registration is totally irrelevant as defence in a suit for infringement and copyright arising out of a different Act namely, 1957 Act. Therefore, there can be no honest and concurrent user of ones copyright by another. After 1958 Act, the plea of acquiescence is not available at all. Even assuming that the first defendant was manufacturing between June, 1989 and October, 1991 he cannot have the benefit of Section 30(1)(b) of the 1958 Act. This Act creates offences for such infringement under Sections 78 and 79. Section 96 also speaks of implied warranty. These provisions were not found in the 1940 Act. In Ruston & Hornsby Ltd. v. The Zamindra Engineering Co. at page 224 this court had occasion to point out the distinction between the infringement and passing off. On this basis it is submitted that all that has to be proved by the plaintiff is that she is the registered owner of the trade mark. If there is an infringement, injunction must follow, Section 12(3) of the 1958 Act talks of special circumstances in relation to honest and concurrent user. In such a case the defences available are as laid down in Sections 30, 34 and 35 of that Act. Such defences are not available in the instant case. In this case, factually there is no acquiescence 22. In support of these submission; learned counsel relies on Amritdhara Pharmacy v. Satyadeo Gupta and particularly the passage occurring at page 497 to show in what case the plea of acquiescence could ever be made. Equally, in Aktiebolaget Manus v. J. Fullwood and & Bland, Ltd. (1948 RPC Vol. LXV 329 at 338), it was held that the court is bound to grant an injunction if the legal right is established. In the case on hand it has been so established. In Electrolux LD. v. Electrix LD. (1954 RPC Vol. LXXI 23), as to when the plea of acquiescence could be upheld, is stated. In Bostitch Trade Mark (1963 RPC 183 at 202) the plea of acquiescence has been dealt with. Judged in the light of these rulings, the finding relating to acquiescence cannot at all be upheld 23. Mr. Soli, J. Sorabjee, learned senior counsel for the respondent submits that it is a clear case in which there are various acts, collectively pointing out to implied consent to the use of plaintiffs trade mark. They establish, at least prima facie, the acquiescence on the part of the appellant. They would disentitle it to the interim relief of injunction. The acts are as under(1) The letter dated 7.5.1984 to the Registrar of Companies regarding the allocation of the name Sumeet(2) The encouragement of production of new electronic food preparation machine(3) No objection whatsoever by the plaintiff or any other related companies or even by Mr. or Mrs. Madhuri Mathur to the manufacture and sale by this respondent till the issue of notice dated 18.11.1991. There is also evidence in this case to show that the first respondent has been manufacturing mixing machines from July 1987. There is also a clear admission on the part of the plaintiff that the first respondent was manufacturing his products under the trade name of Sumeet at least since June 1989. This is evident from the following(i) Criminal complaint dated 6.4.1992 mentions the manufacture of washing machines, vacuum cleaners and industrial mixies from 1984 and the manufacture of kitchen machines from 1989-90 (ii) The affidavit filed on behalf of the appellants mentions about the manufacture since June 1989. There is a similar admission in paragraph 11 of the plaint. The export of these domestic mixies as Sumeet 842 INT is done by the first respondent. All these point out to acquiescence which would be a good ground for denying the interim relief of injunction 24. The appellant has disentitled itself from the grant of equitable relief of injunction by reason of unexplained delay and suppression of material facts. The balance of convenience is also overwhelmingly in favour of this respondent in view of the facts stated above that the first respondent has been manufacturing and marketing productions with trade name of Sumeet since 1989 25. It is not correct to contend that once the trade mark is infringed the plaintiff would be entitled to injunction. Section 30(b) is still applicable and it is open to this respondent to show that there had been an implied consent to the use of the trade mark. In support of this submission learned counsel places reliance on Messrs. Devidoss and Co. v. Alathur Abboyee Chetty 1941 AIR(Madras) 31) 26. As regards the principles in relation to the grant of interim injunction the law has been laid down in K. E. Mohammed Aboobacker v. Nanikram Muherchand (1957 (II) Madras Law Journal (Vol. 113) 573). Similar principles are stated in American Cyanamid Co. v. Ethicon Ltd. 27. In dealing with this case we would like to keep this in the back of our mind that we are concerned with an interim application for injunction in relation to the violation of copyright, trade mark and the design. The Division Bench observed in paragraph 8 as follows "The learned Single Judge, while disposing of the applications, has in the impugned judgment, accepted the copyright with respect to operating instructions and recipe book, guarantee card and the outer carton of the Sumeet Kitchen mixies in the Power Control and Appliances Company represented by the Sole Proprietrix Mrs. Madhuri Mathur, as well as the copyright in the Design Registration No. 148246 for whipper blade for which there is validity till 5.4.1994. He has also accepted the plaintiffs, case that the trade mark in the name Sumeet with the particular artistic design is registered in the name of Sumeet Research and Holding Limited. He has, however, declined to grant any injunction, for in his opinion the doctrine of acquiescence and honest and concurrent user will be attracted." * 28. If there is an infringement of the same whether the appellant would be entitled to interim injunction at this stage is the important question for determination. For such a determination, we refrain from going into the details relating to evidence as that will prejudice the parties in the suits. Section 30(1)(b) of the 1958 Act says "30. Acts not constituting infringement. - (1) Notwithstanding anything contained in this Act, the following acts do not constitute an infringement of the right to the use of a registered trade mark (b) the use by a person of a trade mark in relation to goods connected in the course of trade with the proprietor or a registered user of the trade mark if, as to those goods or a bulk of which they form part, the registered proprietor or the registered user conforming to the permitted use has applied the trade mark and has not subsequently removed or obliterated it, or has at any time expressly or impliedly consented to the use of the trade mark." * Therefore, acquiescence is one of the defences still available to the first respondent. Of course, it is a different issue whether the plea of acquiescence has been made out in this case. That will be examined for a limited purpose after setting out the law on this aspect 29. Acquiescence is sitting by, when another is invading the rights and spending money 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. In Harcourt v. White (28 Beav 303). Sr. John Romilly said : "It is important to distinguish mere negligence and acquiescence." Therefore, acquiescence is one fact of delay. If the plaintiffs 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 as was laid down in Mouson & Co. v. Bochin 1884 (26) Ch(D) 406). The acquiescence must be such as to lead to the inference of a licence sufficient to create a new right in the defendant as was laid down in Rodgers v. Nowill (1847 2 De GM & G 614 = 22 LJ Kch 404) 30. The law of acquiescence is stated by Cotton, L.J. in Protor v. Bannis 1887 (36) Ch(D) 740). as under "It is necessary that the person who alleges this lying by should have been acting in ignorance of the title of the other man, and the other man should have known that ignorance and not mentioned his own title." * In the same case Bowen, L.J. said "In order to make out such acquiescence it is necessary to establish that the plaintiff stood by and knowingly allowed the defendants to proceed and to expend money in ignorance of the fact that he had right and means to assert such rights." * 31. In Messr. Devidoss and Co. (supra) at pages 33 and 34 the law is stated thus "To support a plea of acquiescence in a trade-mark case it must be shown that the plaintiff has stood by for a substantial period and thus encouraged the defendant to expend money in building up a business associated With the mark. In Rowland v. Michell (1896 13 R.P.C. 464), Romer J. observed "If the plaintiff really does stand by and allow a man to carry on business in the manner complained of to acquire a reputation and to expend money he cannot then after a long lapse of time turn round and say that the business ought to be stopped In the same case, but on appeal Lord Russel C.J. said 1897 14 RPC 37 at p. 43 Is the plaintiff disentitled to relief under that head by injunction because of acquiescence ? Of course it is involved in the consideration of that the plaintiff has a right against the defendant and that the defendant has done him a wrong and the question is whether the plaintiff has so acted as to disentitle him from asserting his right and from seeking redress from the wrong which has been done to him. Cases may occasionally lay down principles and so forth which are a guide to the court, but each case depends upon its own circumstances Dealing with the question of standing by in Code v. Addis and Son(1923 40 RPC 130) at p. 142, Eve. J. said For the purpose of determining this issue I must assume that the plaintiffs are traders who have started in this more or less small way in this country, and have been continuously carrying on this business. But I must assume also that they have not, during that period, been adopting a sort of Rip Van Winkle policy of going to sleep and not watching what their rivals and competitors in the same line of business were doing. I accept the evidence of any gentleman who comes into the box and gives his evidence in a way which satisfies me that he is speaking the truth when he says that he individually did not know of the existence of a particular element or a particular factor in the goods marketed by his opponents. But the question is a wider question than that : ought not he to have known : is he entitled to shut his eyes to everything that is going on around him, and then when his rivals have perhaps built a very important trade by the user of indicia which he might have prevented their using had he moved in time, come to the court and say : Now stop them from doing it further, because moment of time has arrived when I have awakened to the fact that this is calculated to infringe my rights. Certainly not. He is bound, like everybody else who wishes to stop that which he says is an invasion of his rights, to adopt a position of aggression at once, and insist, as soon as the matter is brought to court, it ought to have come to his attension, to take steps to prevent its continuance : it would be an insufferable injustice were the court to allow a man to lie by while his competitors are building up an important industry and then to come forward, so soon as the importance of the industry has been brought home to his mind, and endeavour to take from them that of which they had legitimately made use every day when they used it satisfying them more and more that there was no one who either could or would complain of their so doing. The position might be altogether altered had the user of the factor or the element in question been of a secretive or surreptitious nature; but when a man is openly using, as part of his business, name and phrases, or other elements, which persons in the same trade would be entitled if, they took steps, to stop him from using, he gets in time a right to sue them which prevents those who could have stopped him at one time from asserting at a later stage their right to an injunctionIn Mc. Caw Stevenson and other Ltd. v. Lee Bros. (1960 23 RPC 1), acquiescence for four years was held to be sufficient to preclude the plaintiff from succeeding. In 1897 the plaintiffs in that case registered the word glacier as a trade mark in respect of transparent paper as a substitute for stained glass. As the result of user the word had become identified with the plaintiffs goods. In 1900 the defendants commenced to sell similar goods under the name "glazine." In 1905 the plaintiffs commenced an action for infringement. The defendants denied that the use of the word "glazine" was calculated to deceive and also pleaded acquiescence. A director of the plaintiff company admitted that he had known of the use of the word "glazine " by the defendants for four years he would not say it was not five years. It was held that the plaintiffs failed on the merits and by reason of their delay in bringing the action Delay simplicitor may be no defence to a suit for infringement of a trade mark, but the decisions to which I have referred to clearly indicate that where a trader allows a rival trader to expend money over a considerable period in the building up of a business with the aid of a mark similar to his own he will not be allowed to stop his rival 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. A village may develop into a large town as the result of the building up of a business and most of the inhabitants may be dependent on the business. No hard and fast rule can be laid down for deciding when a person has, as the result of inaction, lost the right of stopping another using his mark. As pointed out in Rowland v. Michell (1897 14 RPC 37 at p. 43), each case must depend on its own circumstances, but obviously a person cannot be allowed to stand by indefinite without suffering the consequence." * 32. This is the legal position. Again in Halsburys Laws of England Fourth Edition) 24 at paragraph 943 it is stated thus "943, Acquiescence. An injunction may be refused on the ground of the plaintiffs acquiescence in the defendants infringement of his right. The principles on which the court will refuse interlocutory or final relief on this ground are the same, but a stronger case is required to support a refusal to grant final relief at the hearing. (Patching v. Subbins, 1843 Kay I : Child v. Douglas 1854 5 De GM & G 739 : Johnson v. Wyatt (1863 2 De GJ & Sm 18; Turner v. Mirfiled 1854 5 De GM & G 739 : Johnson v. Wyatt (supra) Turner v. Mirfiled 1865 34 Beac 390; Hogg v. Scott 1874 L.R. Eq. 444; Price v. Bala and Festiniog Rly. Co. 1884 50 LT 787. The reason is that at the hearing of the cause it is the courts duty to decide upon the rights of the parties, and the dismissal of the action on the ground of acquiescence amounts to a decision that a right which once existed is absolutely and for ever lost; Johnson v. Wyuatt, (supra) at 25 and see Gordon v. Cheltenham and Great Western Union Rly. Co. per Lord Langdale MR)." 33. In Aktiebolaget Manus v. R.J. Fullwood and Bland, LD, (supra) it was held thus "Apart from this point the case of Fullwood v. Fullwood 9 Ch(D) 176) shows that the injunction in a passing-off case is an injunction sought in aid of a legal right, and that the court is bound to grant it if the legal right be established unless the delay be such that the Statute of Limitations would be a bar. That case apparently concerned some predecessors of the Defendants. The delay was one of rather under two years and the relief sought was an injunction to restrain the use by the defendants of cards and wrappers calculated to induce the belief that his business was connected with the plaintiff. Frv. J., in the course of his judgment said this : "Now assuming, as I will, for the purpose "of my decision, that in the early part of 1875 the Plaintiff knew of all the material facts "which have been brought before me to day, he commenced his action in November, 1876. "In my opinion that delay, and it is simply delay, is not sufficient to deprive the plaintiff of (66) his rights". The right asserted by the Plaintiff in this action is a legal right. He is, in "effect, asserting that the Defendants are liable to an action for deceit." It is not suggested in the defence that the delay here involves a question under or analogous to the period under the Statute. The Defendants did suggest that there had been something more than mere delay on the part of the Plaintiffs, and that the Plaintiffs had lain by and allowed the goodwill which the Plaintiffs now propose to acquire, but this point was not seriously pressed. It was suggested that Mr. Evans Bajker, the Plaintiffs Solicitor, knew from 1941 onwards what the Defendants were doing but it is impossible to impute to a busy solicitor a knowledge which he could only acquire by seeing advertisements in local or farming papers advertising the Defendants activities. No direct information was afforded him; on the contrary it will be remembered that when in 1942 he made enquiries on behalf of his clients information was studiously withheld from him. I conclude therefore that there has been no acquiescence to disentitled the Plaintiff to relief." 34. In Electrolux LD. v. Electrix (supra) it was held thus "I now pass to the second question, that of acquiescence, and I confess at once that upon this matter I have felt no little sympathy for the Defendants and have been not a little envious of the good fortune which has attended the Plaintiffs, though no doubt they may justly attribute it to the astuteness of their advisers but, as has already been said the Defendants have traded openly and (as the Judge found) honestly, beyond any question, in the ordinary course and substantially under this name "Electrix" for a very long period of time, since early 1930s. During that time, they have built up (I doubt not) a valuable goodwill associated with that name. If the possibility that the mark "Electrolux" was infringed is out of the way, and if I disregard for the moment (as I do) the point taken by Mr. Kenneth Johnstone that in any event the use of "Electrolux" was a sufficient use for the purpose of Section 26(1) of "Electux" (seeking that the two marks were associated). I have no doubt that if the Plaintiff had challenged in the courts the right of the Defendants to use "Electrux" before they have effect to their decision to apply the word "Electrux" to their cheaper model in lieu of "Electrolux", they would in all probability have failed, because the Defendants motion to strike the word "Electrux" off the Register would have succeeded but the fact is that when the battle was joined, "Electrux" was no longer vulnerable on that account, unless the Defendants can establish that the use was no bona fide, a matter to which I shall come presently. It is, however, said by the Defendants that the plaintiffs have deprived themselves of their legal right or, at least, of any right to the equitable remedy of injunctionUpon this matter, a great deal of learning has been referred to, and we have also had our attention drawn to a number of cases. The latter include the well-known statement in Wilmott v. Barber 1880 (15) Ch(D) 96, by Fry, J. (as he then was) at p. 105. He said this : "It has been said that the acquiescence which will deprive a man of his legal rights must "amount to fraud, and in my view that is an abbreviated statement of a very true proposition. "A man is not to be deprived of his legal rights unless he has acted in such a way as would "make it fraudulent for him to set up those rights". Let me pause here to say that I do not understand that by the word "fraudulent", the learned Judge was thereby indicating conduct which would amount to a common law tort of deceit. "What, then, are the elements or requisites necessary to constitute fraud of that description ? In the first place "the Plaintiff must have made a mistake as to his legal rights."Secondly, the plaintiff must "have expended some money or must have done some act (not necessarily upon the defendants land) on the faith of is mistaken belief. Thirdly, the defendant, the possessor of the legal right, must, know of the existence of his own right which is inconsistent with "the right claimed by the plaintiff. If he does not know of it he is in the same position "as the plaintiff, and the doctrine of acquiescence is founded upon conduct with a knowledge "of your legal rights. Fourthly, the defendant, the possessor of the legal right, must know "of the plaintiffs mistaken belief of his right". If he does not there is nothing which "calls upon him to assert his own rights". Lastly, the defendant, the possessor of the legal "right, must have encouraged the plaintiff in his expenditure of money or in the other "acts which he has done, either directly or by abstaining from asserting his legal right ". In reading that passage, it is perhaps necessary to note (because it makes it at first sight a little more difficult to follow) that the positions of plaintiff and defendant as they are usually met with are there transposed and that one of the parties who is there spoken of as the plaintiff corresponds with the present case with the Defendants, and vice versa." * 35. Amerithdara Pharmacy v. Satyadeo Gupta (supra) is a case where Halsbury was quoted with approval. However, on the facts of that case it was held that the plea of acquiescence had not been made out 36. Now, we come to the principles in relation to the grant of interim injunction. The case in K. E. Mohammed Aboobaker v. Nanikram Maherchand and another (supra) makes a reference to the case law and holds at page 574-75 as under "The principles which should govern the court in granting or withholding a temporary injunction in trade mark infringement actions are well settled : See recent decision Henry Hemmings Ltd. v. George Hemmings Ltd., 1951 68 R.P.C. 47. As a temporary injunction is merely of a provisional nature and does not conclude the rights of the parties in any way, the court will exercise its discretion in favour of the applicant only in strong cases. The plaintiff must make out a prima facie case in support of his application for the ad interim injunction and must satisfy the court that his legal right has been infringed and in all probability he will succeed ultimately in the action. This does not mean, however, that the court should examine in detail the facts of the case and anticipate or prejudice the verdict which might be pronounced after the hearing of the suit or that the plaintiff should make out a case which would entitled him at all events to relief at the hearing Colman v. Farrow & Co., 1898 15 R.P.C. 198. Hoover, Ltd. v. Air-Way Ltd., 1936 53 R.P.C. 399. The Upper Assam Tea Company v. Herbert & Co., 1890 7 R.P.C. 183, Star Cycle Company Ltd. v. Frankenbargs, 1906 23 R.P.C. 337. In fact the court will not ordinarily grant an interlocutory injunction if a large amount of evidence is necessary to support the plaintiffs case. The proper course in such a case is to ask for the trial of the action. The injury must be actual or imminent. Pinel & Cie v. Maison Pinet Ltd., 1895 14 R.P.C. 933. Where the defendant disputes the plaintiffs title to the mark or contends that the plaintiff is not entitled to a relief by a reason of the acquiescence or delay or other estoppel or of the defendants concurrent rights, the court will be guided by the balance of inconvenience which may arise from granting or withholding the injunction as well as the justice of the cause after considering all the circumstances in the suit. In other words, where the plaintiffs title is disputed or the fact of infringement or misrepresentation amounting to a bar to the action or some other defence is plausibly alleged upon the interlocutory motion, the court in granting or refusing the interim injunction is guided principally by the balance of convenience that is by the relative amount of damage which seems likely to result if the injunction is granted and plaintiff ultimately fails or if it is refused and he ultimately succeeds; Read Brothers v. Richardson and Co., 1881 45 L.T. 54, Hommel v. Bauer & Co. 1903 20 RPC 801It is necessary that an application for interlocutory injunction should made immediately after the plaintiff becomes aware of the infringement of the mark. Improper and unexplained delay is fatal to an application for inter-locutory injunction. The interim injunction will not be granted if the plaintiff has delayed interfering until the defendant has built up a large trade in which he has notoriously used the mark. North British Rubber Company Ltd. v. Gormully & Jeffery Manufacturing Company, 1894 12 R.P.C. 17. Army and Navy Co-operative Society Ltd. v. Army Navy & Civil Service Co-operative Society of South Africa Ltd., 1902 19 R.P.C. 574. Hayward Bros. Ltd. v. Peakall, 1909 26 R.P.C. 89, Yost Typewriter Exchange Ltd. v. Typewriter Exchange Company, 1902 19 R.P.C. 122. Royal Warrant Holders Association v. Slade & Co. Ltd., 1908 25 R.P.C. 245." 37. In American Cyanamid Co. (supra) it is held at page 511 as under "Where other factors appear to the evenly balanced it is a counsel of producence to take such measures as are calculated to preserve the status quo. If the defendant is enjoined temporarily from doing something that he has not done before, the only effect of the interlocutory injunction in the event of his succeeding at the trial is to postpone the date at which he is able to embark on a course of action which he has not previously found it necessary to undertake; whereas to interrupt him in the conduct of an established enterprise would cause much greater inconvenience to him since he would have to start again to establish it in the event of his succeeding at the trial The factors which he took into consideration, and in my view properly, were that Ethicons sutures XLG were not yet on the market; so that had no business which would be brought to a stop by the injunction; no factories would be closed and no work people would be thrown out of work. They held a dominant position in the United Kingdom market for absorbable surgical sutures and adopted an aggressive sales policy." * 38. Again in Rampal Singh v. Rias Ahmad Ansari(1990 Supp. 726 at page 731), to which decision one of us (M. N. Venkatachaliah, J., as he then was) was a party it was stated thus "Usually, the prayer for grant of an interlocutory injunction is at a stage when the existence of the legal right asserted by the plaintiff and its alleged violation are both contested and uncertain and remain uncertain till they are established at the trial on evidence. The court, at this stage, acts on certain well settled principles of administration of this form of interlocutory remedy which is both temporary and discretionary. The object of the interlocutory injunction, it is stated "... is to protect the plaitiff against injury by violation of his rights for which he could not adequately be compensated in damages recoverable in the action if the uncertainty were resolved in his favour at the trail. The need for such protection must be weighed against the corresponding need of the defendant to be protected against injury resulting from his having been prevented from exercising his own legal rights for which he could not be adequately compensated. The court must weigh one need against another and determine where the balance of convenience lies" * The interlocutory remedy is intended to preserve in status quo, the rights of parties which may appear on a prima facie case. The court also, in restraining a defendant from exercising what he considers his legal right but what the plaintiff would like to be prevented puts into the scales, as a relevant consideration whether the defendant has yet to commence his enterprise or whether he has already been doing so in which later case considerations somewhat different from those that apply to a case where the defendant is yet to commence his enterprise, are attracted." 39. In this case we will briefly analyse the materials on record as they now exist to decide the plea of honest and concurrent user or acquiescence. The learned Single Judge in paragraph 18 of his judgment reported in observes "A careful perusal of the above-referred documents in particular along with other voluminous documents, clinch the fact that Smt. Maduri Mathur, mother of the deponents in the affidavits filed in support of the applications, as well as the counter affidavit, got the trade mark SUMEET registered long back as early as 1964 and that by the very strenuous efforts, hard work, skill, exertion, devised so many designs improved the appliances on par with the modem technology and along with other members of the family, viz., husband, sons and daughters was able to start different business concerns as specifically pleaded in the affidavit and reply affidavits and by entering into various agreements among themselves and by remaining as share-holders and directors in the companies engaged in manufacturing the various domestic power operated machines like mixies, washing machines and so on by using the trade name marketed SUMEET mixies in various categories and numbers. It has to be seen that during the said sojourn. Thiru Ajay Prakash Mathur, the present Managing Director of the first respondent was also the director of the plaintiffs company previously and still continuing as shareholder and that during 1984, the first defendant company was incorporated as private limited company under the Companies Act and in adopting the name SUMEET, his mother Smt. Madhuri Mathur as well as his father gave written consent to the authority constituted under the Companies Act and that the several number of documents produced on behalf of the applicant as well as the respondents, clearly demonstrate the fact that Smt. Madhuri Mathurs family including her husband, daughter, two sons and other family members were directly concerned and involved in all of their sister concerns including the first respondent company and have been engaged in manufacturing the various types of Sumeet home appliances and power operation machines and being marketed through as common distributor, viz., M/s. Reprographers and Engineers, Madras and all of their accounts were being audited by one and the same auditors consumed and that even to provide the working capital of the first respondent company being run by Thiru Ajay Prakash Mathur it appears that in the company of the first respondent, both the mother and the father stood guarantee for a sum of Rs. 2, 00, 00, 000/- in the Bank of Hyderabad. All virtually go to show that each and everyone in the family of Smt. Madhuri Mathur having involved in almost all the companies incorporated under the Companies Act by entering into agreement or otherwise and having the directorship and shares in almost all the companies and deeply involved in manufacturing either the components, motors and other accessories for their companies products under the registered trade name and mark, SUMEET and that accordingly, they are being marketed through the company distributor." 40. In paragraphs 19 & 20 of the impugned judgment the learned Judge refers to the documents filed by the Respondent. None of these documents throw any light as to the manufacture. It might be that the first respondent was marketing, having regard to the close relationship as mother and son between the plaintiff and the first defendant. This was why the Division Bench remarked "There is some evidence showing that the first defendant has been at least marketing domestic mixers allegedly manufactured by Power Control and Appliances (Bombay), Limited since its incorporation. Whether it actually manufeatured before September 1991, however, is not possible to answer without proper evidence as to the actual manufacturing of the kitchen mixers by the first defendant." * 41. So, as such there is no evidence of manufacture. As rightly contended by Mr. Chidambaram, learned counsel, marketing may not advance the case of the first defendant-respondent. We do not think, as is urged by Mr. Soli J. Sorabjee, learned counsel, either the criminal complaint or the averment in the plaint would amount to implied consent, more so, when no oral evidence has been let in, the parties having chosen to proceeding on affidavit and counter affidavit 42. In 1984 the first defendant-company came to be incorporated. This was for the purpose of diversifying the industrial activity of the family group for manufacturing other technical appliances like washing machines, vacuum cleaners etc. But there is nothing on record to show that the first defendant was manufacturing earlier than the alleged violation of trade mark, copyright and design, as stated in the plaint 43. We find considerable difficulty in appreciating the conclusion of the Division Bench which had failed to note that the proprietor of the trade mark is Sumeet Research and Holdings Ltd. Again, the complaint of infringement of trade mark is not against Ajay Mathur but against Sumeet Machines Private Limited and M/s. Sekar and Sagar44. It is a settled principle of law relating to trade mark that there can be only one mark, one source and one proprietor. It cannot have two origins. Where, therefore, the first defendant-respondent has proclaimed himself as a rival of the plaintiffs his claim as joint owner is impermissible in law. Even then, the joint proprietors must use the trade mark jointly for the benefit of all. It cannot be used in rivalry and in competition with each other45. The plea of quasi-partnership was never urged in the pleading. As regards copyright there is no plea of assignment. The High Court had failed to note that the plea of honest and concurrent user as stated in Section 12(3) of 1958 Act for securing the concurrent registration is not a valid defence for the infringement of copyright. For all these reasons we are unable to support the judgments of the High Court under appeal. We reiterate that on the material on record as is available at present the denial of injunction, once the infringement of trade mark copyright and design is established, cannot be supported.

Decision:
1[ds]21. Under Sections 19 and 54 of the Copyright Act reproduction of the copyright itself is infringement unless there is specific assignments in writting by the proprietor. In this case, there is not even a plea that Mrs. Madhuri Mathuri assigned the copyright in the outer carton, handbook and guarantee card. The concept of honest and concurrent user found in Section 12(3) of the 1958 Act for securing concurrent registration is totally irrelevant as defence in a suit for infringement and copyright arising out of a different Act namely, 1957 Act. Therefore, there can be no honest and concurrent user of ones copyright by another. After 1958 Act, the plea of acquiescence is not available at all.So, as such there is no evidence of manufacture. As rightly contended by Mr. Chidambaram, learned counsel, marketing may not advance the case of the firstWe do not think, as is urged by Mr. Soli J. Sorabjee, learned counsel, either the criminal complaint or the averment in the plaint would amount to implied consent, more so, when no oral evidence has been let in, the parties having chosen to proceeding on affidavit and counterWe find considerable difficulty in appreciating the conclusion of the Division Bench which had failed to note that the proprietor of the trade mark is Sumeet Research and Holdings Ltd. Again, the complaint of infringement of trade mark is not against Ajay Mathur but against Sumeet Machines Private Limited and M/s. Sekar and Sagar44. It is a settled principle of law relating to trade mark that there can be only one mark, one source and one proprietor. It cannot have two origins. Where, therefore, the firsthas proclaimed himself as a rival of the plaintiffs his claim as joint owner is impermissible in law. Even then, the joint proprietors must use the trade mark jointly for the benefit of all. It cannot be used in rivalry and in competition with each other45. The plea ofwas never urged in the pleading. As regards copyright there is no plea of assignment. The High Court had failed to note that the plea of honest and concurrent user as stated in Section 12(3) of 1958 Act for securing the concurrent registration is not a valid defence for the infringement of copyright. For all these reasons we are unable to support the judgments of the High Court under appeal. We reiterate that on the material on record as is available at present the denial of injunction, once the infringement of trade mark copyright and design is established, cannot be supported.