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Andhra Pradesh High Court
Judges : A.SAMBASIVA RAO
Teju Singh - Appellant
Versus
Shanta Devi - Respondent
Decided On : 06-27-72
TRADEMARK - PASSING OFF - SIMILARITY OF TRADE NAMES - DECEPTIVE SIMILARITY - LIKELIHOOD OF CONFUSION - INJUNCTION - DAMAGES.
Fact of the Case:
Plaintiff, an electric dry cleaner, sued the defendant, also an electric dry cleaner, for infringement of her trade name, "One day Electric Dry cleaners". The defendant had started a business called "only one day Electric Dry cleaners" a few yards away from the plaintiff's shop. The plaintiff alleged that the defendant's trade name was deceptively similar to hers and was likely to cause confusion among customers.
Finding of the Court:
The court held that there was a resemblance in the names of the plaintiff's and defendant's businesses and that there was a colourable imitation of the plaintiff's trade name by the defendant, although there was a difference in design, decoration, get up, shape, and size. The court also found that there was no evidence to show that any loss was caused to the plaintiff and therefore, she was not entitled to claim any damages.
Issues: 1. Whether the defendant's trade name was deceptively similar to the plaintiff's trade name. 2. Whether the defendant's use of the trade name was likely to cause confusion among customers. 3. Whether the plaintiff was entitled to an injunction restraining the defendant from using the trade name. 4. Whether the plaintiff was entitled to damages for loss or damage caused by the defendant's use of the trade name.
Ratio Decidendi: 1. The court held that the defendant's trade name was deceptively similar to the plaintiff's trade name because: - The two names were phonetically similar. - The two names conveyed the same idea. - The two businesses were in the same locality and offered similar services. 2. The court held that the defendant's use of the trade name was likely to cause confusion among customers because: - The two names were similar in sound and appearance. - The two businesses were in close proximity to each other. - The customers of the two businesses were likely to be the same.
Final Decision: The court granted an injunction restraining the defendant from using the trade name "only one day Electric Dry cleaners" and directed the defendant to deliver up all bill books, paper bags, letter papers, and sign boards printed with the said trade name. The court dismissed the plaintiff's claim for damages.
( 1 ) THIS is an appeal by unsuccessful sole defendant in an action brought for injunction restraining him from using or exhibiting himself or through his servants or agents the trade name of the business used by the respondent or any device resembling it and also to recover a sum of Rs. 400. 00 by way of damages and some other incidental reliefs. The respondent-plaintiff was successful only to the extent of securing an injunction at the hands of the lower court. But his relief for damages failed. There are, however, no cross-objections brought by the respondent.
( 2 ) THE plaintiff as well as the defendant are electric dry cleaners of clothes. The former had been trading under the name and style of " One day Electric Dry cleaners" on the station Road, Kachiguda. The later started his trade a few yards away from the plaintiffs place of business on the same road under the name and style of "only one day Electric Dry cleaners. " Hence the present action.
( 3 ) THE plaintiff alleges that she had been doing her business in the same premises ever since 1965 exclusively and openly using the name " One day Electric Dry Cleaners". By virtue of long user and reliable service, her business had gathered wide publicity and become popular among the public. Recently she came to know that the defendant also had been using practically the same name except refixing it by the word "only". It is nothing but a colourable adoption of the plaintiffs trade name which is likely to cause confusion in the minds of the customers. The name has been adapted only to harass the cause loss to the plaintiff. The customers mistakenly believing it to be the plaintiffs place of business, have been partonising the defendants business. The plaintiff will consequently suffer loss in her trade and her goodwill also will be adversely affected. The sign boards and the stationery used by the defendant for his business are similar to the design, decoration, sign and symbol etc. , used by the plaintiff also in her trade. Such adaptation is patently calculated to cause confusion and deception in the trade. It is, therefore, just and necessary that the defendant be restrained by perpetual injunction from infringing the plaintiffs trade name of business.
( 4 ) THE defendant resists the suit by saying that he had been doing his business at Nallakunta since July, 1969 under the same trade name and the plaintiff and her husband were quite aware of it. The shop at the station-road, Kachiguda is only another branch of his business. It is incorrect to say that the trade name of the defendant is the same or similar to that of the plaintiff or conveys the same idea. His family trade is clothes washing business and he and his brothers had been carrying on laundry business for more than 16 years. Under the name and style " Shotha Laundry ". When he wanted to do electric dry cleaning of clothes he choose the name of " Only one day Electric Dry Cleaners ". The Trade name chosen by the defendant is not similar to that of the plaintiff either in design, decoration or in sign, symbol etc. It is not true that the plaintiff has established any reputation in the business not is it true that any reduction in the plaintiffs business, if any, could be attributed to the adaptation by the defendant of the trade name. The plaintiffs trade name is not registered and therefore she has no right for any accounts or profits by the defendant.
( 5 ) THE parties went to trial on six issues. On issues 1 and 3 the Court below held that there is resemblance in the name of the business of the plaintiff and that of the defendant and there is colourable imitation of the trade name of the plaintiff by the defendant, although there is difference in design, decoration, get up shape and size. On issue No. 4 it is concluded that there is no evidence to show as to whether any loss was caused to the plaintiff and therefore, she is not entitled to claim any damages. The finding on issue No. 2 is tha
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