Prior user rights in passing off require proof of prior use, distinctiveness, reputation, and irreparable injury.

In a passing off dispute over the mark SEFLOX, the text states that a prior user has superior rights over a later user and that an interim injunction is ordinarily not granted against a prior user merely because the mark is said to be invented. It also notes that prima facie prior use, substantial user, distinctiveness, reputation, balance of convenience and irreparable injury must be shown to justify interim relief. On the record discussed, drug licence records, sales statements and invoices were treated as supporting prior and substantial use, leading to the conclusion that interim restraint against the defendant was not sustainable.

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Issues: (i) Whether, in a passing off action, an injunction can be granted against a prior user of the trade mark. (ii) Whether the defendant established a prima facie case for interim injunction on the basis of prior use, substantial user, distinctiveness and reputation.

Issue (i): Whether, in a passing off action, an injunction can be granted against a prior user of the trade mark.

Analysis: The dispute turned on competing claims to use the mark SEFLOX. The material on record indicated that the defendant's user of the mark from 1992 was prima facie earlier than the plaintiff's proved use, which appeared to commence only in 1993. In a passing off action, a prior user has superior rights over a later user, and no injunction can ordinarily be issued against a prior user merely because the mark is claimed to be an invented word.

Conclusion: The finding that the plaintiff was entitled to injunction against the prior user was incorrect and was set aside in favour of the appellant.

Issue (ii): Whether the defendant established a prima facie case for interim injunction on the basis of prior use, substantial user, distinctiveness and reputation.

Analysis: The defendant produced drug licence records, sales statements and invoices showing user of the mark SEFLOX from August 1992 and significant sales in subsequent years. The defendant's label and colour scheme also supported distinctiveness. These materials showed substantial user and wide reputation, and the plaintiff's entitlement was not made out on the interim record. The balance of convenience and the risk of irreparable injury favoured the defendant.

Conclusion: The defendant had established a prima facie case for interim relief, and the plaintiff's interim injunction was not sustainable.

Final Conclusion: The common order was set aside and the injunction was granted in favour of the defendant, with the plaintiff restrained from using the impugned mark during the pendency of the suit.

Ratio Decidendi: In a passing off action, interim injunction cannot be granted against a prior user of the mark, and the party seeking injunction must establish prior distinctive use, substantial user and reputation, together with balance of convenience and irreparable injury.

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