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30. This Court in the case of Hindustan Pencils Limited v. India Stationery Products Co. and Anr. 1989 (9) PTC 61 (Del) had observed that inordinate delay by itself was not analogous or similar to laches. Mere passage of time cannot constitute laches but if, the alleged infringer was lulled into a false sense of security and the alleged infringer had acted relying upon the said lapses, question of laches can be examined and gone into as the Court always has discretion to pass an interim injunction order. While dealing with the concept of acquiescence, it was explained that the same was different form delay and laches. Reference was made to the explanation given by Kerly on Trade Marks, wherein it was observed that in a classic case of acquiescence, the proprietor knowing his rights does nothing, that the infringer ignores them. The Proprietor had encouraged the infringer with the result that the infringer acts upon his mistaken belief and worsens his position. Kerly held that until and unless the conduct of the proprietor was unconscionable, defense of acquiescence or laches was not sufficient. Kerly, however, made a distinction between the defense based on delay and laches and cases where a mark has become "public juric" Reference was also made to Electrolux v. Electrix, 71 RPC 23 wherein five different pre-requisites for establishing acquiescence in the nature of fraud were required to be considered and satisfied before relief of injunction could be denied to the proprietor. The Court, however, noticed that the question of acquiescence and laches was a grey area and sometimes Courts had refused to grant interim injunction on the said ground, though it cannot be a valid ground to deny relief of permanent injunction. This distinction between interim injunction and permanent injunction did not find favor with the Court.

31. Distinction was also made in a case of a fraudulent infringer, who has knowingly and deliberately violated the rights of the proprietor. A person who had deliberately infringed upon another's mark, it was held, cannot complain and hide behind defense of delay laches or acquiescence, as the infringement at the very initial stage itself was fraudulent. Delay and laches by itself would not bestow, fraud with character of legality. Reference was also made to Me CARTHY on Trade Marks wherein it was observed that the Court must also take into consideration necessity to protect third party interest i.e. the general public or the buyer of the goods. It was the right of the public not to be deceived and confused. After examining various aspects this Court held as under:

Where infringement is deliberate and willfull and the defendant acts fraudulently with knowledge that he is violating plaintiffs rights, essential elements of estoppel are lacking and in such a case the protection of plaintiffs rights by injunctive relief never is properly denied. "The doctrine of estoppel can only be invoked to promote fair dealings.

32. It would appear to me that where there is an honest concurrent user by the defendant then inordinate delay or laches may defeat the claim of damages or rendition of accounts but the relief of injunction should not be refused. This is so because it is the, interest of the general public, which is the third party in such cases, which has to be kept in mind. In the case of inordinate delay of laches, as distinguished from the case of an acquiescence, the main prejudice which may be caused to the defendant is that by reason of the plaintiff not acting at an earlier point of time the defendant has been able to establish his business by using the infringing mark. Inordinate delay or laches may be there because the plaintiff may not be aware of the infringement by the defendant or the plaintiff may consider such infringement by the defendant as not being serious enough to hurt the plaintiffs business. Nevertheless, if the Court comes to the conclusion that prejudice is likely to be caused to the general public who may be misled into buying the goods manufactured by the defendant thinking them to be the goods of the plaintiff then an injunction must be issued. The Court may, in appropriate cases, allow some time to the defendants to sell off their existing stock but an injunction should not be denied.

39. When infringement action is initiated on the basis of a registered mark and prayer for interim injunction is made, Court will on the basis of common law principles decide the application for injunction after examining:

1. Whether Prima facie case for infringement is made out.

2. Whether balance of convenience is in favor of the proprietor or the alleged infringer and

3. Whether the proprietor is liable to suffer irreparable loss refer Wander v. Antox (supra).

40. While examining question of convenience, delay in initiating action for infringement by itself is not fatal. Delay may be fatal for claiming damages. Difference has been made between mere delay and laches. Laches being prolonged delay with inaction. Laches alone is not normally considered to be a ground to reject an injunction application. There should be something in addition to and more than laches that will tilt the balance of convenience in favor of a third party viz a registered proprietor of a mark. Court will in these circumstances and in addition to laches examine whether the said delay has caused prejudice to the third party. When a proprietor allows his good will to be used by a third party and allows him to grow and expand and thereby makes the third party believe that he has no objection to use of the mark, then the third party who has built up his sales will suffer prejudice, if he is suddenly asked to stop. However, on the question of prejudice, the onus is on the defendant.