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In C.S. No.285/97, the first defendant, M/s.Palaniappa Brothers, having started business in 1956 and as it published books of XI and XII standards, no relief could have been granted in favour of M/s.Palaniappa Brothers in respect of school books for other standards.

9. Mr.Sathish Parasaran, learned counsel appearing on behalf of respondents in all the appeals, made the following submissions :-

i) Mr.Palaniappa Chettiar, 1st plaintiff of C.S. No.311/97 is the trade mark holder, registered on 16th May, 1997. M/s.Palaniappa Brothers, 2nd plaintiff of C.S. No.311/97 and first defendant of all the rest of the suits, namely, M/s.Karthikeyan & Co., M/s.Madras Karthikeyan & Co. and M/s.Madras Palaniappa Brothers, are permissive users of Mr.Palaniappa Chettiar, limited to the extent of books for one or other classes of a school. It is an action for deceit under common law and not one under the Trade and Merchandise Marks Act, 1958. Therefore, none of the provisions dealing with registered trade mark would apply to unregistered trade mark, forming the subject matter of the action.
ii) Right of an unregistered mark holder to sue for tort for passing off under common law is preserved by Section 27 (2) of the Trade and Merchandise Marks Act, 1958.
iii) Under common law, there is no right to property under an unregistered trade mark, but only the business goodwill. Therefore, the issue raised by the appellant regarding the ownership of the unregistered trade mark, "Konar Tamil Urai" is irrelevant and misleading.
iv) A prior registered user has a superior right to a later registered proprietor. Passing off action is maintainable in law even against a registered owner of the trade mark.
v) The licence in respect of registered as well as unregistered trade mark could be made under common law. Licence to use an unregistered trade mark could be given even by way of an oral permission.
vi) Group of entities using an unregistered trade mark is accepted proposition and such persons and sister concern would constitute one economic entity.
vii) In the case of multiple users sharing goodwill, any one of them can maintain an action for passing off.
viii) According to the counsel for the respondent, appellate court should interfere with the judgment in appeal, not because it is not right, but only if it is shown to be wrong.