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Simatul Chemical Industries Pvt. Ltd. Vs. Cibatul Ltd. - Court Judgment

LegalCrystal Citation
SubjectIntellectual Property Rights
CourtGujarat High Court
Decided On
Case NumberFirst Appeal No. 595 of 1976
Judge
Reported inAIR1978Guj216; (1978)0GLR315
ActsTrade and Merchandise Marks Act, 1958 - Sections 11, 12 and 106
AppellantSimatul Chemical Industries Pvt. Ltd.
RespondentCibatul Ltd.
Appellant Advocate S.M. Madan, Adv.
Respondent Advocate J.I. Mehta,; C.C. Gandhi and; K.M. Mehta, Advs.
Cases ReferredEwing v. Buttercup Margarine Co. Ltd.
Excerpt:
intellectual property rights - trade-mark - sections 11, 12 and 106 of trade and merchandise marks act, 1958 - whether trial court rightly held that name under which appellant-defendant doing business deceptively similar to name of respondent-plaintiff - plaintiff-company can claim injunction restraining defendant-company from carrying on its business in name so deceptively similar as to cause confusion amongst purchasers - also entitled to seek protection in respect of his proprietary rights in goodwill - consumers required to be protected if there was danger of confusion being caused in their mind - held, direction given to defendant to alter its company name within six months of order. - - a conclusion has been firmly recorded that the plaintiff-company has acquired an india wide.....thakkar, j.1. one will have to reflect a great deal before saying 'what is in a name?' for everything centers around a name (cibatul? simatul?) in the battle between two business houses giving rise to the present appeal. and the question debated before the court is as to whether the trial court was right in holding that the name 'simatul chemical industries pvt. ltd.' under which the appellant-defendant is doing business is so deceptively similar to the name of the respondent-plaintiff 'cibatul limited' that the public at large and the consumers are likely to be deceived into believing that they are dealing with the same company or companies having some connection or association with each other and that in order to protect the plaintiff company from its goodwill being invaded and in order.....
Judgment:

Thakkar, J.

1. One will have to reflect a great deal before saying 'What is in a name?' for everything centers around a name (Cibatul? Simatul?) in the battle between two business houses giving rise to the present appeal. And the question debated before the Court is as to whether the trial Court was right in holding that the name 'Simatul Chemical Industries Pvt. Ltd.' under which the appellant-defendant is doing business is so deceptively similar to the name of the respondent-plaintiff 'Cibatul Limited' that the public at large and the consumers are likely to be deceived into believing that they are dealing with the same Company or Companies having some connection or association with each other and that in order to protect the plaintiff Company from its goodwill being invaded and in order to' prevent confusion among the public at large and consumers, it was necessary to restrain the defendant Company from carrying on business under any name and style comprising the words 'Simatul' or 'Cibatul' or any other word comprising the plaintiff's name and style so as to represent or induce into believing that the defendant-Company is the same as the plaintiff-Company or that if the goods manufactured and sold by the defendantCompany are the goods manufactured and sold by the plaintiff-Company

2. A public limited company known as the Atul Products Limited isengaged in the manufacture of dyes and chemicals of various types since 1947. In collaboration with a Swiss Co. with international reputation in the sphere of manufacture of dyes and chemicals known as 'Chemical Industry of Bezal' which is known in the international marked as 'CIBA', it floated a Company in 1960 under the name and style of 'Cibatul'. which represents the names .of the two collaborating Companies (Cita+Atul). In other words, it is a fancyor coined name under which the plaintiff-Company is carrying on its manufacturing and business activities. The plaintiff-Company commenced the manufacture of a chemical known as 'Formal dehyde' in about June, 1973. This chemical is used as raw material for the manufacture of other chemicals, resins............ etc. The defendant Company was formed in order to manufacture Formaldehyde the commercial production of which was expected to start in about June '1974. It registered itself as a public limited company under the name 'Simatul Chemical Industries Pvt. Ltd.' 'Simatul' the first word in the name is a coined or invented word. It is the case of the plaintiff-Company that the name 'Simatul' is deceptively similar to the name of the plaintiff Company 'Cibatul' and it was calculated and likely to mislead or confuse the public at large, the consunwrs and those who were dealing with the plaintiff-Company into believing that both the Companies were same or were connected or associated with each other and that the goods and products manufactured by the defendantCompany were the goods and products manufactured by the plaintiff-Company.

3. It was not disputed in the trial Court, and it is not disputed before this Court, that the plaintiff-Company 'Cibatul Limited' has acquired considerable reputation in the business world in the sphere of manufacture of chemicals. Apart from the concession made by the counsel for the defendant-Company in the trial Court and in this Court, this part of the case was not disputed even by the witnesses of the defendant-Company. It is not necessary, therefore, to examine the evidence pertaining to this aspect. A conclusion has been firmly recorded that the plaintiff-Company has acquired an India wide reputation in the sphere of manufacture of chemicals in the business world and its products are very well-known. The defendantCompany was incorporated in February 1973 and commenced commercial manufacture of Formaldehyde in Oct. 1974. It, therefore, appears that the defendant Company with the fancy name adopted by it came to be formed some 13 years after the incorporation of the plaintiff Company. The controversy in this appeal revolves around two principal issues~ (1) Whether the name '%Cibatul' which forms a part of the name of the plaintiff Company and the name 'Sirnatul' which forms a part of the name of the defendant-Company are so similar that confusion is likely to be created amongst those who are dealing with the plaintiff Company and the public at large and the consumers; and (2) whether the plaintiff-Company has a legal right tQ prevent the defendant-Company from carrying on its business in the present name in case the Court comes to the conclusion that the two fancy names are deceptively similar.

4. So far as the first point is concerned, an the question regarding similarity or otherwise of these two fancy names there is oral evidence which has been accepted by the trial Court in support of the finding recorded in favour of the plaintiff-Company. P.W. 2, a dealer in' chemicals, says that the customers were in fact confused by the similarity. So do P.W. 3 and P.W. 5 other two dealers. The trial Court has accepted their evidence and we, see no good reason to differ from the assessment made by the trial Court. The question will have, however, in substance to be decided on our own assessment as regards similarity and likelihood of confusion. If it were otherwise, parties can always offer oral evidence both for and against, some witnesses may say that the names are similar and are likely to cause confusion, others may say that they are not similar and not likely to confuse and that in fact they themselves were not confused. The decision cannot be made to depend on the opinion expressed by the witnesses examined at the trial. It is a matter on which the Court itself has to reach its own conclusion. If it acts merely on the evidence of witnesses, then it would be abdicating its function of deciding whether the two names are deceptively similar or not in favour of witnesses who were examined at the trial. No doubt the Court will have to keep in mind the. hypothetical person with whom the parties may enter into dealings and the hypothetical consumer. All the same ultimately the Court must form its own opinion on this question-I This proposition was enunciated in Payton v. Snelling, (1901) 17 RPC 628 and has been affirmed in Ouvah Ceylon Estates Ltd. v. Uva Ceylon Rubber Estates Ltd., (1910) 27 RPC 645, Ouvah Ceylon Estates Ltd. v. Uva. Ceylon Rubber Estates Ltd., (1910) 27 RPC ?53, and the matter is placed beyond controversy by the Supreme Court in Corn Products Refining Co. v. Shangrila Food Products Ltd. : [1960]1SCR968 . The test to be applied is the test of an average person with imperfect recollection. One has to visualize a customer or a tradesman or a citizen who may happen to have dealings with the Company concerned or who may happen to want to purchase the goods manufactured by the Company concerned, Having regard to the facts of the present case inasmuch as no separate trade-mark or name is given to the goods manufactured by the Company, the goods will be known by the name of the Company by which the are manufactured and the consumer will demand the goods manufactured by mentioning the name of the manufacturer. The question is whether such a customer entering into dealings with the Company or effecting purchases of the goods manufactured by the Company would get confused and whether an ordinary citizen who may have occasion to deal with the Company in the course of business dealings would mistake one for the other. It would not be right to apply the test of a man of each ordinary memory who remembers the spelling of the name of each Company or a person who jots down meticulously and methodically the names of Companies in his diary and brings out his diary and contemplates whether he is dealing with one Company or the other. We are concerned in the present case with the user of fancy or invented names. The word Uatul' used by the respondent plainitiff Company in its name is a fancy or invented word. So also the word 'Simatul' used by the appellant-difendant in its name is also a fancy or invented word. It is neither incumbent nor necessary nor natural for the defendant Company to use the said word in its name. It is a word that the appellant Company has deliberately invented and deliberately used. R is the case of the respondent-plaintiff that this has been done fraudulently and purposefully with a deliberate view to secure unethical and undue advantage of the goodwill earned by the similar name used by it in respect of its well known products and that it was done by way of invasion of the plaintiff-Company's proprietary right in its goodwill. It is complained that this was done with a view to create an impression amongst the trade and the~ persons dealing with the defendant-Company that they were dealing with the plaintiff-Company. We will examine this aspect a little later. For the present we propose to consider the question whether the two names are so deceptively similar as to cause confusion amongst the persons dealing with these Companies and whether the plaintiff Company is justified in taking exception to the use of the word 'Simatul' in its name. 7lie two words 'Cibatul' occurring in the name

of the plaintiff-Company and 'Simatul' occurring in the name of the defendant-

Company, may be placed in juxtaposition from the standpoint of the visual test as also from the standpoint of the phonetic test. The following features deserve to be emphasized in this connection;-

(1) Both the words 'Cibatul' and 'Simatul' are made up of seven letters.

(2) In both the words the name 'Atul' is a common component and constitutes the last four letters of the word.

(3) Phonetically the first letters in both the words are similar in a such as 'Ci' and 'Si' are spoken or pronounced in an identical manner.

(4) To an average person with imperfect recollection both the words would appear to be so similar that one will not suspect that one is dealing with the one and not the other and vice versa.

5. As against these features, the only points of difference that could be pointed out were:-

(1) That the word 'Simatul' in the defendant-Company's name commences with 'S' whereas the word 'Cibatul' in the plaintiff-Company's name commences with the word 'C';

I 4W,

(2) That the third letter in the name of the defendant-Company was in' whereas the third letter in the name of the plaintiff-Company was b.

Now, so fir as the first point of difference is conc4rned, as we have already pointed out, phonetically the letters U! and 'Si' are pronounced in an identical manner. It is, therefore, in reality no point of distinction at all when the name is spoken or uttered. So far as the second point of distinction is concerned, it is no doubt true that in the plaintiff-Company's name the letter V is used whereas in the defendant-Company's name the letter 'in' is used as the third letter. But both the letters are followed by identical letter 'a'. And 'be' and 'ma' are labials and, as found by the trial Court are calculated to cause confusion or get mixed up when spoken face to face or on telephone. Besides, the point of difference is so very small that only a person with extraordinary memory and recollection or a most meticulous and careful person would notice the distinction or difference. As we observed earlier, we cannot apply the test of a meticulous or a methodical person who notes down the names in the diary and makes a comparison every time he enters into dealings or a person with a photographic memory or a memory much better than that of an average person. We have to apply the test of an average person with average memory and imperfect recollection. We must also not forget that the products manufactured by the two Companies are marketed all over India in different provinces and the same may also be exported to foreign countries. And the similarity in the names may have to be examined from the standpoint of persons speaking different languages whom one cannot expect to notice these very minor differences which do not detract from the general impression of similarity created by the salient features pinpointed earlier in the course of the discussion. The points of similarity far outweigh and out-number the points of difference so much so that we have no hesitation in concluding that the finding recorded by the learned trial Judge is unexceptionable. Be it realised that it is not necessary for the plaintiff to show that the words are identical. The plaintiff has not set out to establish that it is a question of the user of an identical name. The plaintiff has simply undertaken to show that the two names are so deceptively similar that there is a likelihood of confusion amongst the persons dealing with the two Companies. Again, the danger is not only one-sided. It is a double-edged danger which cuts both ways. Even the defendant-Company if it acquires a reputation in India or international business community in regard to its products, it would be exposed to the same risk vis-a-vis the plaintiff Company. Why does the defendant-Company then insist, and insist with perseverance and tenacity, that this state of affairs should continue? According to the plaintiff-Company it is not by accident or coincidence or by chance that the, defendant-Company finds itself in the present situation. It has been done, complains the plaintiff-Company, deliberately and purposefully with an eye on stealing the goodwill of the plaintiff-o Company. It is. therefore, appropriate to consider at this juncture the circumstances in which the defendant-Company hit upon the fancy or invented word 'Simatul' in formulating its name. It is interesting to note that in paragraph 13 of the affidavit-in-reply at Ex. 8 filed by Shri V. R. Patel, the Secretary of the defendant-Company, in answer to the Notice of Motion taken out by the plaintiff, it was in terms admitted as under:

'I further state that while applying for registration, we had proposed some 14 names of the Company to theRegistrar of the Companies. However, most of the names were rejected on the ground of similarity by the Registrar and finally the name Simatul Chemical Industries Private Ltd. was approved by the Registrar of the Companies, Gujarat State... ............

A very crude attempt was made to extricate himself from this situation by D.W. 2 Shri V. B. Patel in his evidence Ex. 85 wherein under cross-examination he stated as under:- 'I cannot say if the Registrar had rejected 13 out of 14 names proposed by the company because most of them were similar to existing companies. I do not know if' the relevant portion stated in para 13 of my affidavit and to which I have referred in my chief examination, is true or not.'

This clearly shows that somehow the defendant-Company was in a desperate search of a name similar to that of an existing Company. The next question which may be examined in this context is as to how the defendant-Company came to strike upon the word 'Simatul'. Was it by chance, was it by misfortune, was it by accident? At Ex. 22 is a reporl appearing in a daily newspaper publisli-, ed from Surat, 'Gujarat Mitra' in the issue of 29-6-73. After giving the particulars of the Company about its produc-, tion capacity, working capital etc.. the news-item (which presumably appears to be based on a handout) in its last para adverts to this aspect. The said para may be quoted:-

'Vadodara pase nandesari sthits' G.I.D.C. na industrial estate ma eka navo petrochemical plant dasa ekarani jamin upar akar lai rahya chhe. Enu nam chhe, M/s. Seamantal Chemical Industries_fPvt.) Ltd. Aa plantama garuata-4 thi varshik panchattarso metric ton folmal dehydenu utpadan karavama avashe, Aa plantani vishishtata e chhe ke any tamam machinery ane technical jankari sampurn swadeshi hashe. Italuj nabi eno mukhya kacho mal menthol pans, Bharatamathi ja levama avashe. Prayogik utpadan 1,974 ni Sharuatama an@ vyavasayik utpadan 1,974 ni madhyama sharu thashe evi ganatari chhe.

Aa plant sthapawama Kharch andaje Rupeea pasatha lakh thasile ane beeja rupeeya 10 lakh working capital joyashe. Aa rakam eno vahivatkarta. seema kutumba marfat ane G.I.D.C. temaj G.S.F.C. ni ane anya vepari bankoni lambagalana dheeran yojana dwara ubbikarashe. As lono manjur pana thai gayeli chhe.

As plant sakar thawa pachhala ena mukhya kartaharta Shri Bhaichandbhai S, Patelana kaheva mujab janaveli rajyani tamam corporation no ane Industries Commissioner Sahebani office temaja State Bank of India no I sahakar, samajadari ane savlato rahela chhe. Jemane atyanta dhanyawad ghate chhe.

Formaldehydena aneka udyogoma, jemake plastic, pharmaceuticals vagairema bahola pramanama vaparay chhe. Vadhuma ena vaidnyanik ane tabibi upayogo, pana janita chhe. Atyarani eni mang jota 7500 metric tormeni khapat asanithi thai shakashe ema shanka, nathi.'

Aa plant sharu karanar sahasiko ane sahasik kutumb Seema Kutumb chhe. Seema nama ena sthapak Shri Shivdas Madhavdas Patelana adyaksharo uparathi padelu chhe. Aa kutumbana pandar jetala sabhyo Americama vividhaAshetrama kushaltapurvaka gothawayala chhe. Jema chemistry ane industrial managementano pan samavesh thay chhe. Avu kushala ane sahasi kutumb- aa plantani pachhal hoi tuk samayarna a plant Bharatana arthik kshetre potano phalo safalatapurvak nond4avashe. Tema koi shanka, nathi.'

It is somewhat strange that in a report of this nature a reference is made to the reason 'why' the word 'Sima' has been selected. It .has been stated that the entrepreneur belonged to well-known 'Sima' family and an explanation is offered almost by way of an apology to the effect that the name 'Sima' is derived from the name of the founder of the family, namely, Shivdas Madhavdas Patel. The report is in Gujarati. Now there is considerable difference between the Gujarati spelling of the word 'Sima' a.,,, the first two letters of the name of Shivdas Madhavdas Patel as it is spelt in the report itself. The name of the Company is 'WW' whereas the first letters of the name of the defendant as mentioned in the report are 'ftM.'

Two points must be made in connection with the aforesaid discussion- (i) that an explanation is offered for coining the name 'Sima' and (ii) that the explanation offered is that it is derived from the name of Shivdas Madhavdas, the founder of the firm. Now, the very fact that an explanation regarding the coining of the fancy name is -given in a report of this nature gives rise to some suspicion in the background of the comment made by the plaintiff that the defendant-Company was creating an alibi in advance and had a guilty conscience. Why else was it necessary to offer an explanation for coining an invented word to be used in the Company's name. Secondly even this attempt is a crude attempt in the sense that whereas in the report itself the name of the founder is shown as '14W' the word invented is 'qJRV

And what causes great surprise is the fact that in the Court an additional excuse is offered for selecting this word, namely, that it is a combination of the name of a girl and a boy from the families of the Directors.' As against this, it is not even stated on oath by any of the witnesses of the defendant-Company that the family of the entrepreneurs who promoted the Company was known as 'Sima' family as was declared in the handout. It was stated that it was a joint family concern and that the name 'Simatul' was selected or coined by picking up the first two letters in the name of grand father of the Managing Director of the Company Shivdas Madhavdas Patel. In the same breath it was stated that one Naranbhai was a co-promoter of the defendant-Company and was a younger brother of the Managing Director and that Sima was the name of Naranbhai's daughter. it was further more stated that the name Atul was the name of the son of the Managing Director Visabhai and that the invented name 'Simatul' was the result of combination of two names- Sima, the name of the daughter of the younger brother of the Managing Director and

tul, the name of the son of the Managing Director. Such was the stand taken in the written statement. And in the evidence D.W. 1 Visabhai Bhaichandbhai Patel, the Managing Director, stated as under:-

'I had myself selected the word 'Simatul' for our Company and had myself coined it. My younger brother Naranbhai was a co-promoter of our Company with me. The name of his daughter is 'Sima'. The name of my son is 'Atul'. Therefore, we combined these two names and converted into one word 'Simatul' for the purpose of our Company, The name of my paternal grand-father was 'Shivdas Madhavdas Patel'. The defendant company is a venture of our joint family and therefore, we wanted to perpetuate the name of our grand-father be selecting the first two letters of his name and his father's name and they are 'Si-Ma' to make one word Sima.

We never write our grand-father's name 'Sivdas' as 'Shivdas' but only as 'Sivdas'. Exh. 10/6 is the Share certificate issued by the relevant co-operative society. in favour of my father. There also, the name of my grand father is written as Sivadas.'

To us it appears that it is a very laboured and naive attempt to explain why the name 'Simatul' has been invented. At first an attempt was made to explain merely the word 'Sima' and then when It was realised that, an explanation was also necessary for the last four letters which contained identical name 'Atul' used by the plaintiff-Company a fresh explanation was invented we are not prepared to accept this facile explanation too readily. It appears that it has been done deliberately and purposefully with a view to invent a name similar to the name of the plaintiff-Company. We are not prepared to accept the innocent and innocuous-looking facial make-up which is too naive to carry conviction. We may also point out that the plaintiff-Company had addressed a communication dated January 31, 1974 to the defendant-Company in this connection by Registered Post. The said communication, Ex. 25 was in the following terms:-

'Sub:- Similarity in name

CIBATUL Limited was registered as a Corporate Body with the Registrar of Companies, Ahmedabad under the Companies Act, 1956 on 7-12-1960. At present, we are manufacturing Formaldehyde and other products at Atul. We have noticed from the recent advertisement in the newspapers that you are putting up a plant for the manufacture of Formaldehyde.

We are'worried about the similarity in the name of your company and that of ours, and as such we are afraid that there may be confusion in the minds of the public regarding the identity. In fact, some of the parties have approached us for formaldehyde referring to your advertisement in the newspapers.

We are sure that- 'SIMATUL' a name similar to ours must have been chosen by you inadvertently and not deliberately and that you have no intention of either passing your goods as our goods or creating confusion in the minds of the public in general. The name of our company 'CIBATUL'~ has been in use for over 13 years and the name of your company which resembles to ours is, therefore, highly objectionable.

May we, therefore, request you to take necessary step to change the name of your company to avoid complications and confusion.'

The defendant-Company replied thereto as under by letter Ex. 27;-

'We are in receipt of your letter dated 31st January, 1974 and noted the contents thereof.

In this connection we have to state that the name of the company ie. Simatul Chemical Industries Pvt. Ltd., has been allowed to us by the Registrar of Companies, Gujarat, for registration purposes and we are sure that the Government must have considered all the pros and cons factors before allowing us this name. You may note that our company was registered as a private limited company with the Registrar of Companies, Gujarat, on 9-2-1978

However, there is a vast difference between the names of the two companies and they are too distinguishable to mislead anybody. We want to assure that we have no intention to mislead anything nor to create confusion in the minds of public in general. We have our own entity and identity as 'Simatul Chemical Industries Private Limited' and it cannot be said similar to 'Cibatul Limited! and hence never objectionable.

This matter may, therefore, be treated as closed.'

It, therefore, appears that notwithstanding the fact that at a very early stage the plaintiff-Company had pointed out that the names were very much similar and there was a likelihood of confusion, even then the defendant-Company persisted in its attitude and insisted on using the said name. In our opinion, that learned trial Judge was right in recording a finding adverse to the defendant Company in this connection.

6. Having concurred with the finding recorded by the trial Court that the name 'Simatul' which forms a part of the name of the defendant-Company is deceptively similar to the name 'Cibatul' which fin a part of the name of the plaintiff-Company and that confusion is likely to be created in the mind of the public at large and the consumers, the next question which arises is whether the plaintiff-Company has a legal right to prevent the defendant-Company from carrying on its business in the name in which the word 'Simatul' or a similar word is used. That the plaintiff-Company can claim an injunction restraining the defendant-Company from carrying on its business in such a deceptively similar name can scarcely be disputed in view of decisions rendered by English Courts going back to 1898 and a decision of the Bombay High Court going back to 1922 (National Bank of India v. National Bank of Indore, 24 Bom LR 1181., (AIR 1923 Bom 119)). A brief tour of the decisions on this subject may fruitfully be made.

7. As early as in 169-8 a question of similar nature cropped up on a dispute between Dunlop Pneumatic Tyre Co, Ltd. v. Dunlop Lubricant Co., (1898) 14 RPC 12, decided by the High Court of Justice-Chancery Division on Nov. 17, 1898. The Court came to the conclusion that the defendant was using the word 'Dunlop' in its name with a view to Educing customers to believe that the goods marketed by it were in some way connected with the plaintiff-Company if not the goods manufactured by the plaintiff-Company itself or manufactured with its sanction.,The plaintiff succeeded in obtaining an injunction restraining the defendant from carrying on a business using the name 'Dunlop' in, that case.

8. In Ouvah Ceylon Estates Ltd. v. Uva Ceylon Rubber Estates Ltd., (1910) 27 RPC 645, Mr. Justice Joyce affirmed this proposition in his judgment dated June 17, 1910. In that case a geographical name was used in the names of two Companies locked in the debate. The name in question was the name of a province in Ceylon known as 'Ouvah. The plaintiff-Company was doing its business in the name of Ouvah Ceylon Estates Ltd. The defendant-~Company started its business using the name of the said province but spelt it as tiuvall. Having reached the conclusion that the nai*es were similar the Court came to the conclusion that it would inevitably lead to confusion, that it would interfere with the plaintiffs business, and that the plaintiffs were entitled to a perpetual injunction. This case was affirmed by the Court of Appeal by its judgment. dated Oct. 21, 1910 reported in (1910) 27 &P.C.; 753. A similar question arose in the High Court of Justice Chancery Division A the matter of Harolds, Ltd. v. R. Harold Ltd, (1924) 41 R. P.C. 784. In that case the plaintiffs were doing business in the name of Harolds Limited and had acquired considerable reputation and goodwill. The defendant-Company also entered upon business in the same line viz..money-lending under the name of R. Harold Limited. The defendant-Company utilized the name 'Harold' which occurred in the name of the plaintiff-Company. The Court came to the conclusion that the name 'Harold' had been utilized with a fraudulent intention in order to secure advantage of the goodwill earned by the plaintiff-firm. The explanation offered by the defendant for selecting the name 'Harold' was considered unsatisfactory and unconvincing as we have done in the present case and injunction was issued in favour of the plaintiff restraining the defendant from carrying on the business in the said name.

9. A similar question again arose in connection with the use of the name 'Charles of London', a well-known Hair dresser who was doing business in London under this trading name as the defendant commenced his business adopting the same name in a different part of the country. A finding was recorded to the effect that the defendant was not shown to have known that the Plaintiff was doing the business in this very name when he commenced the business and there was no suggestion of a dishonest motive. There was no -evidence even as regards loss of customers to the plaintiff though there was evidence to show that persons got confused and thought that the defendant's business might be connected with the plaintiff's business in London. The Court upheld the contention of the plaintiff that the defendant was not entitled to carry on business in that name and issued an injunction as prayed for (see (1958) 75 RPC 161). It may be stated at this juncture that in the aforesaid case a grievance was with regard to the use of the identical name which is not the case so far as the present matter is concerned. However, so far as the principle is concerned, it makes no difference. No useful purpose will be served by multiplying the instances of cases decided by the English Courts where injunction was issued in order to restrain the defendant from doing business by using a name deceptively similar so as to cause confusion. It is now zero-hour to refer to the law laid down by the High Court of Bombay in National Bank of India v. National Bank of Indore, 24 Bom LR 1181 : (AIR 1923 Bom 119). In that case the plaintiff Company was doing banking business in the name of The National Bank of India. The defendant Company engaged itself in the same business, namely, banking business under the name of The National Bank of Indore. Though there was a glaring point of difference in the sense that while the plaintiff-Company was using the geographical name of the whole country, namely, India, the defendant-Company was only using the name of one of the States, namely, Indore, the Court came to the conclusion that there was a likelihood of confusion being caused and that the defendant-Company was not entitled to carry on business in the said name. The Court has observed therein as under in this connection:-

'The principles by which this case must he decided are well established. The fundamental principle is that aperson shall not trade under a name so closely resembling that of the plaintiff as to be mistaken for it by the public: Hendriks v. Montagu ((1881) 17 Ch D 638), in other words, that a person shall not carry on his business in such a way as to represent that his business was the business of another person: Merchant Banking Co. of London v. Merchants' Joint Stock Bank ((1878) 9 Ch D 560,563). The question to be determined in case of this description is whether there is such a similarity between the two names as that the one is in the ordinary course of human affairs likely to be confounded with the other: Hendriks v., Montagu ((1881) 17 Ch D 638, 645). If is not necessary to prove that the defendants in taking the name complained of by the plaintiffs had any fraudulent intent. It is enough if the plaintiffs prove that the act of the defendants in assuming the name complained of is an injury to the plaintiffs' rights; North Cheshire and Machester Brewery Co. v. Manchester Brewery'Co. ((1899), AC 83, 87). There is no question in such cases of property or monopoly in the name. The principle upon which the cases on this subject proceed is not that there is property in the word, but that it is a fraud on a person who has established a trade and carries it on under a given name by some other person who assumes the same name or the same name with a slight alteration in such 6. way as to induce persons to deal with him in the belief that they are dealing with the person who has given a reputation to the name L. Lee v. Haley ((1669) 5 Ch A 155, 161); Hendriks v. Montagu ((1881) 17 Ch D 638, 649). The principles enunciated by the Earl of Halsbury L. C. in the North Cheshire Brewery's cose, referred to above, have a material bearing on the present case. In that case the Manchester Brewery Company was the plaintiff. The plaintiff company had carried on business under that name for years. The defendant company bought an old business called 'The North Cheshire Brewery Ltd.' and then got themselves incorporated and registered under the name of 'The North Cheshire and Manchester Brewey Co. Limited.' The plaintiff-company complained that the name of the defendant company was calculated to induce the belief that the plaintiff company had ceased to carry on business as a separate company and that the defendant company was an amalgamation of the plaintiff-Company and the North Cheshire Brewery Limited, and it sued the defendant company for an injunction. Byrne J. refused the injunction, but the Court of Appeal reversed the judgment and granted the injunction. The judgment of the Court of Appeal was upheld by the House of Lords. In the course of his speech the Lord Chancellor said ((1699) AC 83, 84)., 'I have no complaint to make of their (counsel) being too long or too elaborate; but the truth is, that when one comes to see what the real question is, it is in a single sentence. Is this name so nearly resembling the name of another firm as to be likely to deceive? That is a question upon which evidence of course might be given, as to whether or not there was another brewery either in the one place or in the other, or whether there were several breweries nearly resembling it in name; what the state of the trade was, and whether there was any trade name; all those are matters which are proper to be dealt with upon evidence; but upon the one question which your Lordships have to decide, whether the one name is so nearly resembling another as to be calculated to deceive, I am of opinion that no witness would be entitled to say that, and for this reason; that that is the very question which your Lordships have to decide.'

10. Much to the same effect are the observations of Lord Cozens Hardy M. R. in Ewing v. Buttercup Margarine Co. Ltd. ((1917) 2 Ch 1, 10-11). In that case the plaintiff carried on business under the name of 'The Buttercup Dairy Company'. The plaintiffs' business consisted in selling butter, margarine, cream, condensed milk etc. After- some years the defendant company-the Buttercup Margarme Company Lunited-was incorporated as a private company. The memorandum of association of the defendant company authorized trade in milk, cream, butter, margarine, etc. In confirming the injunction granted by Astbury J. the Master of the Polls said (p. 10) ;

'In a case like that, where the plaintiff is the owner of a business which has been established since 1904 and has a turnover of half a million a year, and must be regarded as an old established business none the less because its actual sphere of operations .mainly in Scotland and the North of England, what should I expect the defendants as honest men or honest representatives of a newly formed company to do? I should expect them to say: 'We are very sorry; We Were not aware of your existence in Scotland, but as you object to our name we will change it so as not in any way to interfere with you.1 Instead of doing that they assert their right to use the name and file a mass of affidavits in support of their claim to do what they have threatened and continued to do; and they seek to Justify their name on the ground that the arm of the Court is not long enough to reach a defendant who takes a name similar to that of the plaintiff, unless it can be shown that such name is calculated to deceive in the Sense that a person desiring to be a customer of the plaintiff is induced thereby to become a customer of the defendant. And they say that there can be no deception here because they are Wholesale People while the plaintiff is a retailer, it is true that they have the fullest Possible power under the memorandum and articles of association to carry on a retail business, but that at the present moment they have no such intention. I should be very sorry indeed if the jurisdiction of the Court should be regarded as so limited .........I know of no authority, see no principle, which withholds us from preventing injury to 'the Plaintiff in his business as a trader by a confusion which will lead people to

conclude that the defendants are really connected in some way with the plaintiff or are carrying on a branch of the plaintiff's business.'

In our opinion, in view of the law on the subject which appears to be firmly settled, it is futile to contend that the Plaintiff Company cannot claim an injunction restraining the defendant Company from carrying on its business in a name so deceptively similar as to cause confusion amongst those who may be concerned in dealings with it. just as a citizen is entitled to protection in respect of his movable and immovable properties, he is also entitled to seek protection in respect of his proprietary rights in a goodwill. As the Court will not Permit theft of the property of a citizen, it will not permanents the theft of the goodwill earned by a citizen,

There is also another dimension of the matter. The consumers require to be protected if there is any danger of confusion being caused in their mind and there is a likelihood of their being led into believing that the product in reality manufactured by X is manufactured by Y or by someone connected with Y. When a con

summer or customer effects a purchase, he is entitled to be assured of the fact that he is purchasing the very goods that he wants and the goods manufactured by a concern in which he has confidence and not goods manufactured by another concern whom the consumer or the customer does not know and that too by read-

son of the fact that he is deceived in believing that the product is manufactured by the former though it is in fact manufactured by the latter. Even if, therefore, the defendant Company had innocently selected a fancy name which is deceptively similar to the name of the plaintiff-Company the Court would issue an Injunction restraining the defendant-,Company from carrying on its business in the said name. in the present case, as observed earlier, we an of the opinion that the defendant-Company has not done it innocently and that it has done it with an ulterior motive in order to gain undue and unjust advantage of the plaintiff-Company's goodwill. We, therefore, see no reason to different from the view taken by the trial court. we may mention that the trial - Court has not clarified that the injunction will be restricted to the manufacture of dyes chemicals. , And as the plaintiff-company has acquired a reputation in the manufacture of dyes and chemicals etc, and has only complained of an invasion in the context of the business carried on by it in this line, the injunction must be restricted to manufacture in this line. We accordingly modify the injunction to that extent and direct that the defendant and its servants and agents are hereby restrained by perpetual injunction from carrying on business 'in the manufacture or sale of chemicals and dyes under any name and style comprising the word 'Simatul' or any other word resembling the word 'Cibatul' comprised in the plaintiff's name and style, so as to represent or induce the belief that the defendant-Company in the same as the plaintiff-Company Or that the goods manufactured or sold by the defendant-Company are the goods of the plaintiff-Company. However, in order to enable the defendant-company to change its name, sufficient time must be granted to the defendant-Company. We do not want to oblige the defendant Company to shut down its business during the pendent of the proceeding Initiated to alter its name which by its very nature is likely to take some the. We do not want the defendant-Company to go out of business meanwhile or , its business to suffer. So aim we do not want the . employees of the defendant Company to be laid off. We, therefore grant six month time commencing from today to the defendant-Company to altes its name so that it does not offend or violate the injunction being issued by this Court.

10-A. Subject to the aforesaid modification, the appeal tags and is dismissed with costs.

11. Learned counsel for the appellant prays for grant of a certificate of fitness for appeal to the Supreme Court under Art. 133 of constitution of India. The matter does not involve any substantial question. of law of general importance which in aw opinion requires to be decided by the Supreme Court. We accordingly refuse the request.

12. Order accordingly.


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