Prior user rights defeat later trademark registration where passing off protects established goodwill and prevents misrepresentation.

Registration under the Trade Marks Act does not create an indefeasible right against a prior user. Where identical or nearly resembling marks are registered by different proprietors, section 28(3) prevents either from claiming exclusivity merely by registration, while section 34 preserves the superior rights of a prior user. The common law remedy of passing off also remains available to protect goodwill from misrepresentation and damage. On the stated facts, the respondent's long prior use and established goodwill prevailed over the appellant's later registration, so injunctive relief was justified.

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Issues: Whether a registered proprietor can restrain another registered proprietor from using an identical or nearly similar trade mark when the respondent claims prior use and passing off.

Analysis: The scheme of the Trade Marks Act recognises that registration confers exclusive rights only subject to the Act, and that the remedies for passing off remain unaffected. Section 28(3) contemplates that where two persons are registered proprietors of identical or nearly resembling marks, neither can claim an exclusive right against the other merely by virtue of registration. Section 34 preserves the rights of a prior user, and the common law action for passing off protects goodwill against misrepresentation and damage. On the facts, the respondent established long prior use and goodwill in the mark, while the appellant's registration did not displace those superior rights. A registered mark therefore did not bar the respondent from relying on prior user and passing off.

Conclusion: The respondent's prior user and passing off rights prevailed over the appellant's later registration, and injunctive relief was rightly granted.

Ratio Decidendi: In a conflict between registered proprietors, registration does not confer an indefeasible right against a prior user, and an action for passing off remains maintainable because the prior user's common law rights are superior to mere registration.

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