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Andhra Pradesh High Court
Judges : A.R.LAKSHAMANAN, A.V.KRISHNA RAO
Teju Singh - Appellant
Versus
Shanta Devi - Respondent
Decided On : 07-23-73
TRADEMARK - PASSING OFF - DESCRIPTIVE NAME - "ONE DAY" - NO SECONDARY MEANING - NO DECEPTION - NO INJUNCTION.
Fact of the Case:
Plaintiff, who ran a dry-cleaning business under the name "One Day Electric Dry-Cleaners," sued the defendant, who had started a similar business nearby under the name "1-Day Electric Dry-Cleaners," for passing off. The plaintiff claimed that the defendant's name was too similar to her own and was likely to cause confusion among customers.
Finding of the Court:
The court held that the words "One Day" were descriptive of the nature of the business and not distinctive. It also found that the plaintiff had not shown that the words had acquired any secondary meaning or that the defendant's use of the name was likely to cause confusion among customers.
Issues: 1. Whether the words "One Day" are descriptive or distinctive. 2. Whether the plaintiff had shown that the words had acquired any secondary meaning. 3. Whether the defendant's use of the name was likely to cause confusion among customers.
Ratio Decidendi: 1. The court held that the words "One Day" were descriptive of the nature of the business and not distinctive. It relied on the fact that the words were commonly used to describe the time of delivery of goods and that the plaintiff had not shown that they had acquired any secondary meaning. 2. The court also found that the plaintiff had not shown that the defendant's use of the name was likely to cause confusion among customers. It noted that the defendant had taken steps to distinguish its business from the plaintiff's, such as using a different logo and signboard.
Final Decision: The court allowed the appeal and dismissed the plaintiff's suit.
( 1 ) THIS appeal is filed by the defendant under clause 15 of the Letters Patent against the judgment of our learned brother Sambasiva Rao, J. dismissing C. C. C. A. No. 124 of 1970 (reported in AIR 1973 Andh Pra 51, Teju Singh v. Shanta Devi ).
( 2 ) THE plaintiff filed the suit O. S. No. 18 of 1970 in the Court of the Chief Judge, City Civil Court, Hyderabad, for an injuction restraining the defendant from using her trade name of business for recovery of Rs. 400. 00 by way of damages and together with other incidental reliefs. The trial Court decreed the suit only so far as injuction is concerned, but rejected the relief for damages. Aggrieved by this, the defendant filed C. C. C. A. No. 124 of 1970. The appeal was dismissed by our learned brother holding that the plaintiffs trade name is a distinctive name and that irrespective of the question whether he acquired any reputation or not, he is entitled to an injunction as the defendant has started his business very near the plaintiff subsequently and that there is also a likehood of deception or confusion among customers with respect to the name adopted by the defendant. Against the said judgment, the defendant filed the above appeal.
( 3 ) BEFORE proceeding to consider the points raised in this appeal, it is necessary to give particulars about the trade names adopted by the rival parties. The plaintiff started her business of electric dry cleaning of clothes in the year 1965 locating the shop on the Kachiguda main road, Hyderabad. The covers which the plaintiff delivers the goods depict the design of two concentric circles. The inner circle contained the figure of a man carrying a coat with the words "8 Hours" shown over his shoulder. In the interspace between the two circles the wors "one DAY SERVICE" are printed DOWN below the circle there are the words "one day" and down below "electric Dry-Cleaners". In between the Words "one day" the same figure of the man with coat in one hand and the words "8 hours" on the shoulder are inscribed. The design is printed in black over a brown paper cover. The sign board of the plaintiff in front of the shop contains the following words "one day Electric Dry-Cleaners. " In between the words "one day" there is a design of a man carrying a coat in one hand and the words "8 Hours" on the other ( vide Exs. A-1 and A-4 ). On the other hand the defendants paper bag contains the following design and description in green colour. There is a bird carrying a coat on her beak. On either side of the said design there are the words "give Morning" and "take Evening. " Down below the design we find the following words:---- "only 1-day Electric Dry-Cleaners. " Below these words the figure of a lady is printed. The sign-board also contains the figure of the bird carrying the coat and to the left of the bird the figure "1" is put and to the right the word "day" is put in broad letters and down below we find the words "electric Dry-Cleaners". (Vide Exs. A4 and A-7 ). The defendants shop is located a few yards away the plaintiffs shop.
( 4 ) ON the date of the suit the plaintiff did not register her name or design under the Trade-marks Act. But during the pendency of this appeal it is stated before us that it was registered as trade-mark. But in the present case we are not concerned with the said marks or as to any cause of action based on the said trade-mark. When the plaintiff brought the suit it was on a common law action for "passing off" the plaintiffs business name. The scope of an action for passing off goods is now too well settled to require elaborate citation of authorities. It is a remedy against a false representation tending to deceive customers into believing that the goods which the defendant is selling are really the plaintiffs. The false representation may be by statements or by conduct. i,e. , by adopting the distinctive mark, name number, design, get-up or appearance of anothers goods. The plaintiff may prove either an inte
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