TMI Blog2001 (12) TMI 839X X X X Extracts X X X X X X X X Extracts X X X X ..... ab and studio and any other similar word or name which may be identical or deceptively similar to the plaintiffs trade name. The plaintiff-appellant shall be entitled to costs throughout incurred upto this stage. - C.A. 8266 OF 2001 - - - Dated:- 4-12-2001 - R.C. LAHOTI AND K.G.BALAKRISHNAN, JJ. JUDGMENT: The plaintiff, feeling aggrieved by the orders of the learned Trial Judge and the High Court of Gujarat, refusing his prayer for the grant of ad-interim injunction has filed these special leave petitions. Leave granted. According to the plaintiff, he started the business of colour lab and studio in the year 1982 in Ahmedabad, in the name and style of Muktajivan Colour Lab and Studio and is using the name since 1982 openly, extensively and to the knowledge of everyone concerned. The high quality of services rendered by the plaintiff to his customers has earned a reputation and developed a goodwill associated with the trade name Muktajivan Colour Lab. In order to develop his business the plaintiff has promoted his wife Radhaben to open a new colour lab in the name and style of Muktajivan Colour Studio at two other localities of Ahmedabad one, at H.J. House, next to M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was carrying on his business and as the two localities were away from each other, the plaintiff could not have any cause of action. Both the parties adduced evidence on affidavits. Substantial documents were filed enabling the Court forming an opinion on the issue relevant for decision at the stage of grant of temporary injunction. Vide order dated 9.9.1997 the Trial Court directed the application filed by the plaintiff to be dismissed although the Trial Court had found that the plaintiff was carrying on his business in the trade name of Muktajivan Colour Lab since 1995 and the defendant who had recently adopted the word Muktajivan in his business name had so done on or about the date of the institution of the suit. The Trial Court observed that the defendants studios name was somewhat identical with the trade name of the plaintiff. In spite of these findings the learned Trial Judge refused the prayer for the grant of injunction mainly on the ground that although the businesses of the plaintiff and the defendants were situated in Ahmedabad but the business of the defendants was in the outer periphery of the city of Ahmedabad, at a distance of about 4 to 5 kms. from the place whe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had come into existence prior to commencement of its user by the defendants and whether it had acquired a goodwill creating a property in the plaintiff so as to restrain the use of word Muktajivan in the business name of a similar trade by a competitor, i.e., the defendants. It is common in the trade and business for a trader or a businessman to adopt a name and/or mark under which he would carry on his trade or business. According to Kerly (Law of Trade Marks and Trade Names, Twelfth Edition, para 16.49), the name under which a business trades will almost always be a trade mark (or if the business provides services, a service mark, or both). Independently of questions of trade or service mark, however, the name of a business (a trading business or any other) will normally have attached to it a goodwill that the courts will protect. An action for passing-off will then lie wherever the defendant companys name, or its intended name, is calculated to deceive, and so to divert business from the plaintiff, or to occasion a confusion between the two businesses. If this is not made out there is no case. The ground is not to be limited to the date of the proceedings; the court will have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a manner as to mislead the public into believing that the merchandise or business is that of another person is a wrong actionable at the suit of that other person. This form of injury is commonly, though awkwardly, termed that of passing off ones goods or business as the goods or business of another and is the most important example of the wrong of injurious falsehood. The gist of the conception of passing off is that the goods are in effect telling a falsehood about themselves, are saying something about themselves which is calculated to mislead. The law on this matter is designed to protect traders against that form of unfair competition which consists in acquiring for oneself, by means of false or misleading devices, the benefit of the reputation already achieved by rival traders. In Oertli Vs. Bowman (1957) RPC 388, (at page 397) the gist of passing off action was defined by stating that it was essential to the success of any claim to passing off based on the use of given mark or get-up that the plaintiff should be able to show that the disputed mark or get-up has become by user in the country distinctive of the plaintiffs goods so that the use in relation to any goods of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Muktajivan Colour Lab and Studio since 1982. He has produced material enabling a finding being arrived at in that regard. However, the trial court has found him using Muktajivan as part of his business name at least since 1995. The plaintiff is expanding his business and exploiting the reputation and goodwill associated with Muktajivan in the business of Colour Lab and Photo by expanding the business through his wife and brother-in-law. On or about the date of the institution of the suit the defendant was about to commence or had just commenced an identical business by adopting word Muktajivan as a part of his business name although till then his business was being run in the name and style of Gokul Studio. The intention of the defendant to make use of business name of the plaintiff so as to divert his business or customers to himself is apparent. It is not the case of the defendant that he was not aware of the word Muktajivan being the property of the plaintiff or the plaintiff running his business in that name though such a plea could only have indicated the innocence of the defendant and yet no difference would have resulted in the matter of grant of relief to the plaintiff beca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no delay in filing the suit by the plaintiff. The plaintiff filed the suit with an averment that the defendants were about to commit an injury to the plaintiff. The defendants took a plea that they had already commenced the business with the offending trade name without specifying actually since when they had commenced such business. This has to be seen in the background that the defendants business earlier was admittedly being carried on in the name and style of Gokul Studio. The commencement of such business by the defendants could therefore have been subsequent to the institution of the suit by the plaintiff and before the filing of the written statement by the defendants. In such a situation, on the plaintiff succeeding in making out a prima facie case, the court shall have to concentrate on the likelihood of injury which would be caused to the plaintiff in future and simply because the business under the offending name had already commenced before the filing of the written statement or even shortly before the institution of the suit would not make any difference and certainly not disentitle the plaintiff to the grant of ad-interim injunction. We are conscious of the law tha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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