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(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 November 18, 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 * The Trade and Merchandise Marks Act, 1958 + The Trade Marks Act, 1940 2 (1 969) 2 SCC 727 : (1970) 2 SCR 222, 224 3 (1963) 2 SCR 484: AIR 1963 SC 449 4 (1948) 55 RPC 329, 338 5 1954 RPC 23, 34 6 1963 RPC 183, 202 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:

Dealing with the question of standing by in Codes v. Addis and Son16 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 a moment of time has arrived 14 (1896) 13 RPC 464 15 Rowland v. Michell, (1 897) 14 RPC 37, 43 16 (1923) 40 RPC 130, 142 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 attention, 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;

32 Amritdhara pharmacy v. Satyadeo Gupta is 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.

33.Now, we come to the principles in relation to the grant of interim injunction. The case in K.E. Mohammed Aboobacker v. Nanikram Maherchand8 makes a reference to the case-law and holds at pages 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.27 As a temporary injunction is merely of a provisional nature and does not conclude the rights of the parties in any way, the 26 (1880) 15 Ch D 96: 43 LT 95 27 (1951) 68 RPC 47 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 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 entitle him at all events to relief at the hearing. Colman v. Farrow & Co.28, Hoover, Ltd. v. Air- way Ltd.29, Upper Assam Tea Co. v. Herbert and Co.30, Star Cycle Co., Ltd. v. FrankenburgS31. In fact the Court will not ordinarily grant an interlocutory injunction if a large amount of evidence is necessary to support the plaintiff s 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.32 Where the defendant disputes the plaintiff's title to the mark or contends that the plaintiff is not entitled to relief by reason of the acquiescence or delay or other estoppel or of the defendant's 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 plaintiff s 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 the plaintiff untimately fails or if it is refused and he ultimately succeeds; Read Brothers v. Richardson and Co.33, Hommel v. Bauer & Co.34 ... It is necessary that an application for interlocutory injunction should be made immediately after the plaintiff becomes aware of the infringement of the mark. Improper and unexplained delay is fatal to an application for interlocutory 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 Co., Ltd. v. Gormully and Jeffery Manufacturing Co.35, Army and Navy Cooperative Society, Ltd. v. Army Navy and Civil 28 (1898) 15 RPC 198 29 (1936) 53 RPC 399 30 (1890) 7 RPC 183 31 (1906) 23 RPC 337 32 (1895) 14 RPC 933 33 (1 881) 45 LT 54 34 (1903) 20 RPC 801 35 (1 894) 12 RPC 17 Service Cooperative Society of South Africa Ltd.36, Hayward Bros. Ltd. v. Peakall37, Yost Typewriter Co. Ltd. v. Typewriter Exchange Co.38, Royal Warrant Holders'Assn. v. Slade & Co., Ltd.39"
'... is to protect the plaintiff 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 trial. 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 36 (1902) 19 RPC 574 37 (1909) 26 RPC 89 3 8 (1902) 19 RPC 422 39 (1908) 25 RPC 245 40 1990 Supp SCC 726: 1991 SCC (Cri) 145 ((Mohan, J.) 465 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 latter case considerations somewhat different from those that apply to a case where the defendant is yet to commence his enterprise, are attracted."