Prior user rights under trade mark law can defeat later registration where earlier continuous use and goodwill are shown.

Prior user rights prevailed over later registration in a trade mark dispute involving ROFOL and PROFOL. Section 34 of the Trade Marks Act, 1999 protects continuous earlier use and prevents a registered proprietor from restraining a prior user of an identical or deceptively similar mark. Section 47 also reflects the policy against retaining unused marks, so registration does not create an indefeasible right where bona fide use has been absent for a substantial period. On interlocutory principles, prior commercial use, prima facie goodwill, and risk of dilution justified continuation of the temporary injunction in favour of the plaintiffs.

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Issues: Whether the plaintiffs had made out a case for continuation of the interim injunction restraining the defendant from using the mark ROFOL, in view of the defendant's earlier application and later registration of its mark vis-a -vis the plaintiffs' earlier commercial use of the mark PROFOL.

Analysis: The statutory scheme under Section 34 of the Trade Marks Act, 1999 protects a prior user and does not permit a registered proprietor to restrain use by another who has continuously used an identical or deceptively similar mark from an earlier date. The Court further noticed that Section 47 of the Trade Marks Act, 1999 reflects the legislative policy against non-use of a registered mark and that mere registration does not confer an indefeasible right when the mark has not been bona fide used for a substantial period. Applying the settled principles governing interlocutory injunctions, the Court found that the plaintiffs had shown prior commercial use, prima facie goodwill, and a real risk of dilution of business reputation, while the defendant's delayed market entry and inactivity weakened its claim to equitable relief.

Conclusion: The plaintiffs were entitled to continuation of the temporary injunction, and the defendant was not entitled to interfere with their use of the mark.

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