Bombay High Court
Bajaj Electricals Limited, Bombay
Versus
Metals and Allied Products, Bombay and another
Decided On:

Headnote:TRADE MERCHANDISE MARKS ACT, 1958

       Section 29-Use of family name as trade name-Permissibility of -Such user is not permissible.

       It is required to be stated at the out set that in the present case the question for determination is whether the defendants are guilty of passing off and not of infringement of trade mark. It was contended by Mr. Cooper, learned counsel appearing on behalf of the respondents, that the surname of the partners of defendant No.1 being Bajaj the defendants are entitled to use their own name and unless it is established that the user was dishonest, it is not permissible to grant injunction on the ground that the user is likely to cause deception or confusion in the mind of the customers. It is not possible to accept the submission of the learned counsel. It is necessary to bear in mind that the defendant No. I is not using the word "Bajaj" as a trading style, but are only using the word "Bajaj" as a trade mark or a sign and such user is not permissible. It is required to be stated at this juncture that Mr. Cooper did not dispute that the plaintiffs have acquired large reputation by user of the word "Bajaj" in respect of sale of their goods, but contended that the surname of the partners of the defendants being "Bajaj", there is no objection for the defendants using the word by that trade sign.

       The mere fact that the articles manufactured by the contesting parties are different in nature is no answer to the claim that the defendants are guilty of passing off. We entirely agree with the conclusion recorded by the learned trial Judge that there is identity of the goods, the mark and the consumer and the goods manufactures by both the plaintiffs and the defendants are sold under one shop. Mr. Cooper complained that the electric goods manufactured by the plaintiffs and the stainless steel utensils manufactured by the defendants are not sold in one shop. The submission is not accurate because it is common experience that kitchen ware or kitchen appliances like mixers, grinders, pressure cookers, and stainless steel utensils are sold in the same shop.

       Prima facie, it is clear that the defendants have intentionally and dishonestly tried to pass off their goods by use of name "Bajaj".

       The plaintiffs have made out a case for grant of injunction. The learned Single Judge is not correct while observing that the plaintiffs have not prima facie, established with sufficient evidence that the plaintiffs would suffer irreparable damages. The damages which would be suffered by the plaintiffs cannot be counted in terms of money because the damages would be untold and would be spread over for a number of years till the suit is decided. On the findings recorded by the learned trial Judge it is difficult to suggest that the plaintiffs are not entitled relief.

       For Citation : AIR 1988 Bom 167 at pp. 170, 172, 175