Passing off survives registration where deceptively similar marks create confusion and no effective defence of acquiescence is shown.

Registration of a device mark does not extinguish an independent passing off claim, and it does not by itself confer exclusivity over the word element where the complaint is misrepresentation of the mark as a whole. On the facts, the competing marks, products, customer base, and trade channels were sufficiently similar to create a real likelihood of confusion under the test of the average purchaser with imperfect recollection, justifying interim protection. Delay, laches, acquiescence, and common use were rejected because the record did not show informed waiver, substantial third-party use, or any effective permission to the defendant.

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Issues: (i) whether registration of the defendant's mark or device mark afforded a complete defence to the plaintiff's claim for passing off and interim protection; (ii) whether the competing marks and goods were so similar that use of the defendant's mark was likely to cause confusion or deception; (iii) whether the plaintiff's claim was barred by delay, laches, acquiescence, or alleged common use of the suffix relied upon by the defendant.

Issue (i): whether registration of the defendant's mark or device mark afforded a complete defence to the plaintiff's claim for passing off and interim protection.

Analysis: Registration under the Trade Marks Act, 1999 did not extinguish the independent right of action for passing off. The statutory scheme preserved passing off claims, and a device-mark registration did not confer exclusivity in the word element where the dispute concerned misrepresentation of the mark as a whole. Prior registration, therefore, did not furnish a complete answer to the plaintiff's equitable claim.

Conclusion: The defence based on registration failed, and the plaintiff's passing off claim remained maintainable.

Issue (ii): whether the competing marks and goods were so similar that use of the defendant's mark was likely to cause confusion or deception.

Analysis: The marks were found to be similar, the products were identical, the customer base was the same, and the goods moved through the same trade channels. Applying the test of the unwary purchaser of average intelligence and imperfect recollection, the overall resemblance created a real likelihood of confusion. The defendant's later adoption of a similar mark was treated as prima facie dishonest, and continued use was likely to deceive the public.

Conclusion: The plaintiff was entitled to interim protection against use of the impugned mark.

Issue (iii): whether the plaintiff's claim was barred by delay, laches, acquiescence, or alleged common use of the suffix relied upon by the defendant.

Analysis: The record did not establish sufficient knowledge, positive encouragement, or intentional abandonment by the plaintiff. The evidence of third-party use was not shown to be substantial enough to erode distinctiveness. The court also treated the cause of action as recurring and held that isolated or insignificant third-party uses did not defeat enforcement. The alleged prior settlements with others did not amount to a licence to the defendant or amount to acquiescence in its use.

Conclusion: The defences of delay, laches, acquiescence, and common use were rejected.

Final Conclusion: The appeal did not disclose any ground for interference with the injunction, and the plaintiff's interim protection was sustained pending trial.

Ratio Decidendi: Registration of a mark does not bar a passing off action, and interim restraint is justified where the competing mark is deceptively similar to a prior mark and its use is likely to confuse consumers, unless the defendant establishes a substantial and legally effective defence such as acquiescence or prior honest common use.

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