D.K. Kapur, J.
1. We have heard this appeal after issuing a show cause notice to the defendants. As the subject-matter of the suit pending on the Original Side of the High Court was the issue of a permanent injunction to restrain the defendants from using the impugned trade mark 'Savera', we thought an expeditious disposal of the appeal was necessary.
2. We have had advantage of the judgment of the learned Single Judge refusing an interim injunction and we have also been taken through the record of the case. The plaintiffs-appellants claimed that they had been manufacturing soap using the trade mark 'Savera' since 18th March, 1976, but this was disputed by the defendants. On the other hand, it was claimed that after an extensive inquiry and investigation in the market, they found that the impugned trade mark was used by two soap manufacturers under some territorial limits--one manufacturer was Ashoka Industries, who had a registered trade mark restricted to the district of Ujjain and there was a similar registration in favor of Raja Soap Factory in Mysore. It thus came about that the defendant bona fide adopted the trade mark 'Savera' and applied for the registration of the same on 9th October, 1980. It was also claimed that the defendants had been continuously and extensively using the trade mark and had widely advertised the same. It was claimed that the plaintiffs had watched till extensive publicity had been given and success achieved by the defendants before filing the suit and claiming the interim injunction.
3. The learned Single Judge refused the interim injunction on the ground that the plaintiffs also had no registered trade mark. It was held that there was no prima facie case to grant the injunction.
4. The plaintiffs have appealed. We have been taken through the record and also have been referred to some decisions of the Delhi High Court. The question we have to ascertain is whether this is a proper case in which an injunction should be granted.
5. Learned counsel for the appellants contended that once prior use is prima facie established, then the interim injunction has to be granted as a matter of course. It may hardly be doubted that in case the suit of the plaintiffs succeeds, a decree for injunction to restrain the defendants from using the trade-mark 'Savera' will be passed in favor of the plaintiffs. The question whether such a relief should be granted at the interim stage before the trial is quite a different matter. The essential features of the tort of passing-off are well established. If the trade-mark in question enjoys a reputation in the public eye so as to be established as that of the plaintiff, then every time the defendants used the trade-mark, they in essense pass-off the goods as being that of the plaintiffs. It may be established at the trial of the suit that the plaintiffs have established such a reputation in relation to 'Savera' soap that it is well established in the public eye, but he may well fail to establish such a reputation. In order to get an interim injunction in a matter of this type, that reputation must be established in such a way as to leave little doubt that the plaintiff does enjoy such a connection with the trade mark that the public generally associate the same with him.
6. The statement of law contained in 'Winfield & Folowics on tort, 11th Edition, at page 507 is as follows :
'The essence of passing off is that one trader represents and his goods (or his services) as those of another and he commits the tort even if he does so innocently, that is, with no intention to deceive. All that is necessary is that the get-up or description of the plaintiff's goods should have become distinctive of them and that there is a probability of confusion between them and those of the defendant. Actual confusion on the part of a member of the purchasing public need not be proved, but proof that it has occurred will obviously assist the plaintiff's case, especially if substantial damages are claimed and not only an injunction. Indeed it may be that if he knows nothing of the plaintiff's right the defendant cannot be liable for more than nominal damages. There has been some dispute about the theoretical basis of the tort but it is now clear that it is not based upon any proprietory interest in the get-up or work, but in the business goodwill associated therewith. If, thereforee, the plaintiff has ceased to trade in that line, he may be deprived of the protection of passing off because the goodwill cannot subsist independently of the business. The existence of this goodwill is a question of fact but it is interesting to note that it has been held that a plaintiff operating a famous restaurant in Paris could obtain an injunction against a defendant operating a restaurant in Norwich under the same name even though the plaintiff had no business in England.'
7. It is difficult to draw a line between cases in which the interim injunction has to be issued and those in which it has to be refused. If it is granted as a matter of course, then the defendant will immediately stop trading in the article in question and the suit will become infructuous. If that happens, the plaintiff would have achieved his purpose without a trial. It can only be allowed to happen if the plaintiff has such a strong case that it is almost impossible to refute. We have not been shown any such material on record as would establish in our minds that the plaintiffs enjoy such a reputation in relation to the soap 'Savera' as would impel the grant of an interim injunction. The fact is that a limited registration has been granted to some other manufacturers, so we doubt very much that the plaintiffs have a reputation irrevocably connected with the trade mark. It may be that at the trial such a reputation may be established and the plaintiffs may get a permanent injunction to restrain the defendants. We are satisfied that an interim injunction could not be granted on the facts and circumstances of the present case.
8. Having reached this conclusion, we may say that we are impressed with the alternative contention of the plaintiffs that the defendants be directed to file an account of their sales of 'Savera' soap for the purpose of eventual relief if any is granted to the plaintiffs. We would accordingly dismiss the appeal as regards the injunction, but direct the defendants-respondents to file a six monthly account of the 'Savera' soap for the purpose of convenience in determining the relief, if any, to be granted to the plaintiffs. The first accounts should be for the six months period ending on 31st March, 1983, and should be filed by the end of April, 1983. Similarly, six-monthly accounts should be filed for the subsequent periods within one month of the end of the accounting period. This direction decides this appeal at the show-cause stage. There will be no order as to costs.