IMPORTANT POINTS
1. Injunction is a relief in equity and is based on equitable principles and it is not for the Supreme Court at the stage of second appeal to reassess the material and reach an independent conclusion thereon for the first time.
2. A passing off action is maintainable in law even against a registered owner of the trade mark.

Headnote:(i) APPEAL-Interlocutory injunction in a passing-off action-Scope for grant of-Scope of interference in appeal-Concurrent findings-It is not for Supreme Court at the stage of second appeal to reassess material and reach an independent conclusion.
       Held : It is not for this court at the stage of second appeal to reassess the material and reach an independent conclusion thereon for the first time and it has only to be seen whether the conclusion reached by the trial Court was reasonably possible on the material. Moreover, even on a reassessment, it appears to us that the conclusion reached by the trial Court in favour of the plaintiffs is the one more probable and reasonable on this material. (Para 15)
       (ii) INJUNCTION IN PASSING OFF ACTION-Manufacture, sale and advertisement of washing machines by defendants appellants using mark WHIRLPOOL -Long prior use of name of WHIRLPOOL by plaintiff No. 1-Transborder reputation and goodwill extending to India to use of that name-Prior registration-Grant of registration to defendants in 1992 only on ground of proposed user-Irreparable injury to plaintiffs -No injury to defendants by grant of injunction-Concurrent findings-Weight of equity in favour of plaintiffs and against defendants-No ground to interfere with grant of injunction in favour of plaintiffs.
       Held : Injunction is a relief in equity and is based on equitable principles. On the above concurrent findings, the weight of equity at this stage is in favour of the plaintiffs and against the defendants. It has also to be borne in mind that a mark in the form of a word which is not a derivative of the product, points to the source of the product. The mark/name WHIRLPOOL is associated for long, much prior to the defendants application in 1986 with the Whirlpool Corporation - plaintiff No. 1. In view of the prior user of the mark by plaintiff No. 1 and its trans-border reputation extending to India, the trade mark WHIRLPOOL gives an indication of the origin of the goods as emanating from or relating to the Whirlpool Corporation - Plaintiff No. 1. The High Court has recorded its satisfaction that use of the WHIRLPOOL mark by the defendants indicates prima facie an Intention to pass-off defendants washing machines as those of plaintiffs or atleast the likelihood of the buyers being confused or misled into that belief. The fact that the cost of defendants washing machine is 1/3rd of the cost of the plaintiff s washing machine as stated by Shri Sibal, itself supports the plaintiffs plea that the defendants washing machines are not of the same engineering standard and are inferior in quality to the washing machines of the plaintiffs . In addition, it has been rightly held that the grant of interlocutory injunction would cause to significant injury to the defendants who can sell their washing machines merely by removing the small metallic strip bearing the offensive trade mark/name which includes WHIRLPOOL . On the other hand, refusal of the interlocutory injunction would cause irreparable injury to the plaintiffs reputation and goodwill since the trade mark/name WHIRLPOOL is associated for long because of prior user and even otherwise with the plaintiff No. 1 - Whirlpool Corporation. These factors which have been relied on for grant of the interlocutory injunction by the trial court indicate that the exercise of discretion was in accordance with the settled principles of law relating to the grant of interlocutory injunctions in a passing-off action. (Para 17)

JUDGMENT

J.S. Verma, J.-This appeal by way of special leave is by the defendants against whom a temporary injunction was granted by the learned Single Judge of the Delhi High Court. In an Original Suit by order dated 31st October, 1994, which has been affirmed on appeal by the Division Bench by its order dated 21.4.1995. The suit is a passing off action brought by the plaintiff-respondents to restrain the defendant appellants from manufacturing, selling, advertising or in any way using the trade mark WHIRLPOOL in any other trade mark deceptively or confusingly similar to the trade mark of WHIRLPOOL in respect of their goods. The subject matter of this appeal is the manufacture, sale and advertisement of washing machines by the defendants-appellants using the mark WHIRLPOOL as a part of the name by which they had recently commenced marketing the washing machines manufactured by them. In short, the claim of the plaintiff-respondents is based on prior user of the mark WHIRLPOOL and a trans-border reputation indicating that any goods marketed with the use of the mark WHIRLPOOL gives the impression of it being a goods marketed by the plaintiffs; and the washing machines manufactured, sold and advertised by the defendants give that impression resulting in confusing the intending buyers with this impression. In this suit, the plaintiffs sought a temporary injunction which has been granted by the learned Single Judge and affirmed by the Division Bench of the High Court.

2. In view of the fact that the trial of the suit has yet to conclude and the final decision of the suit is awaited. It is appropriate that the question of temporary injunction is decided only on the basis of undisputed facts and the material which can legitimately be taken into account at the interlocutory stage. For this reason reference is confined by us only to such material which can be of significance at this stage.

3. The Whirlpool Corporation, plaintiff No. 1 is a multi-national incorporated in U.S.A. TVS Whirlpool Ltd., plaintiff No. 2 is a limited company incorporated in India in which the plaintiff No. 1 is a majority shareholder. The plaintiff No. 2 has been licensed by the plaintiff No. 1 to use the trade mark and trade name WHIRLPOOL . The defendants Nos. 1 and 2 are the trustees of Chinar Trust; and defendants Nos. 3 and 4 are the trustees of Mansarovar Trust also trading as USHA-SHRIRAM (India). Usha International Ltd., the defendant No. 5 is a company incorporated under the Indian Companies Act. The defendants have registrations in respect of trade marks such as USHA , USHA-SHRIRAM and USHA-LEXUS .

4. According to the plaintiffs, they have an established business in the manufacture, sale, distribution and servicing of washing machines of all kind and the plaintiff No. 1 is the successor of a trade mark WHIRLPOOL since 1937. By 1957 WHIRLPOOL was a leading trade mark and name in the United States and Canada in relation to washing machines. By 1986 the WHIRLPOOL was registered in relation to washing machines and dryers in class 7 as well as for appliances in classes 9 and 11 in more than 65 jurisdictions around the world including most of the commonwealth countries. In 1956-57, the plaintiff No. 1 obtained registration for the trade mark WHIRLPOOL in India in respect of clothes dryers, washers, dish washers and some other electrical appliances. These registrations were renewed periodically. However, in 1977, the registrations in India lapsed on account of failure to apply for renewal. In 1987 plaintiff No. 1 formed a joint venture with the plaintiff No. 2. On 15.7.1988 applications were moved by the plaintiffs with the Registrar of Trade Marks for registration of the trade mark WHIRLPOOL for certain goods including washing machines. The washing machines are being marketed by plaintiff No. 2 in India under the TVS brand using the phrase in collaboration with Whirlpool Corporation . Prior user of the mark WHIR

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