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4. During 1978, the parties resorted to agitate their rights before this Court as well as the High Court at Calcutta. Addison filed C.S. No. 204 of 1978 before this Court against Hansa, alleging inter alia that by reason of its continuous and extensive usage in India, the trade mark SPARTAN has become distinctive of the goods of Addison Hardie and Hansa filed C.S. Nos. 835 and 836 of 1978 respectively against Addison for alleged infringement of the trade mark SPARTAN. A consent order dated 22.2.1979 came to be passed by the High Court at Calcutta in and by which Addison was given the liberty to use the warrior device, Hardie and Hansa were not to object to Addison selling its products under the get up in which it was selling and similarly, Addison was not to object Hardie and Hansa selling their products under any get up, so long as they distinguished their goods from those of Addison. Hansa started using the composite trade mark SPARTAN and bust of warrior from 3.9.1979 onwards. Addison filed Application No. 3873 of 1979 in C.S. No. 204 of 1978 for contempt against Hardie and Hansa. This Court initially ordered status quo on 24.4.1979 but ultimately held by order dated 28.3.1980 that the status quo was to be governed by the terms of the consent order passed by the Calcutta High Court.

Mention may be made here that the opposition application was filed on 18.11.1977 and the decision was rendered on 19.6.1989, after a lapse of about twelve years. During this period, parties resorted to initiation of proceedings before various forums and obtained interim orders as regards the subject matter in dispute. Pursuant to the consent order of the Calcutta High Court dated 22.2.1979, Hansa had been using the composite trade mark SPARTAN and bust of warrior in marketing its products, and it claims to have built up a lucrative turnover of several crores, after incurring considerable expenses on advertisements. On this aspect of the matter, innumerable documents in the shape of affidavits, invoices, auditor's reports, etc., had been filed and the same is not disputed by the first respondent. On such factual foundation, learned Counsel for appellants submitted that if registration is granted in favour of the first respondent, it would cause confusion and offend Section 11(a) and (e) of the Act. In this view of the matter, he further urged that the rights of parties have to be determined as on the date of the order and not on the date of the application. Learned Counsel for the first respondent would submit that law is laid down in this country not by Kerly, but by Legislatures and Judicial precedents. Elaborating his submission, hestated that the Law on the above aspect of the matter had been laid down in the following two decisions:
Where, in the opinion of the Registrar, an appellant is in default in the prosecution of an application filed under this Act or any Act relating to trade marks in force prior to the commencement of this Act, the Registrar may by notice require the applicant to remedy the default within a desired an opportunity of being heard, treat the application as abandoned, unless the default is remedied within the time specified in the notice.
On the face of such a provision, the contention of learned Counsel for first respondent deserves acceptance. The act of the first respondent cannot at all be construed in the eye of law as abandonment amounting to a blameworthy conduct. The other facet of the argument is that the consent order of the Calcutta High Court also reflects blameworthy conduct on the part of the first respondent. Such a contention cannot be given credence or weight. As per the consent order, the first respondent was given the liberty to use the device of warrior, Hardie and Hansa were not to object Addison selling its products under the get up in which it was selling and, similarly, Addison was not to object Hardie and Hansa selling their products under any get-up, so long as they distinguished their goods from those of Addison. At this juncture, it has to be clarified that the consent order did not at all state specifically that Hardie and Hansa could use the device of bust of warrior, but what Hansa did was, it started using the composite trade mark and bust of warrior subsequent to the consent order. The use of bust of warrior device by Hansa had been done with the full knowledge of the pendency of the application by the first respondent for registration of the device of bust of warrior. In such circumstances, it can be stated without any hesitation that no one else is to be blamed except Hansa for such user. Even if justification is sought for, for the use of the impugned bust device on the ground of consent order, the answer is, as rightly contended by learned Counsel for first respondent, that when a suit is filed, the rights of parties are frozen as on the date of suit any interim order passed with or without consent of parties, cannot have the effect of frustrating the ultimate result, even if goodwill and reputation had been built by consent of parties in the course of interim orders. The party which has built up such a goodwill, will be deemed to have done so, at its risk and has to account for it under Section 106 of the Act at the end of the trial. If the appellants continue t6 trade, despite the pendency of the suit, they are doing so at their own risk and responsibility. Otherwise, the right to have a mark registered under Section 18(1) by a person devising and proposing to use it, can in all cases be defeated by unscrupulous rival traders giving the nature of the mark proposed to be registered and using the same, before the mark is actually registered and coming forward with opposition applications on the ground of user of the mark. In this view of the matter, it cannot be stated that allowing the application of Addison/first respondent and proceeding to registration can have any bearing on public interest, leave alone balance of convenience. It may be stated that public interest and balance of convenience cannot at all be focused in a situation like the one on hand, as the right of parties has to be decided as on the date of the application and not on the date of the decision. Considering the facts and circumstances of the case it is not necessary for me to refer to the elaborate submissions and the catena of decisions relied upon by the learned Counsel for the appellants, revolving on public interest and balance of convenience of parties. In such state of affairs, it cannot at all be stated that there is any blameworthy conduct on the part of the first respondent, encouraging the appellants to spend huge amounts on advertisements and build up reputation of the trade mark, viz., bust of Warrior, and if at all if there is any blameworthy conduct, it is attributable to the appellants' own making of acting in a hurly-burly fashion and in an imprudent manner, without waiting for the final verdict.