In a passing off action, the plaintiff must establish that the plaintiff had any reputation on the basis of which one can say that the word has acquired secondary meaning connecting the product with the plaintiffs.

K. Ramamoorthy, J.

( 1 ) THE first plaintiff, the Procter and Gamble Company and the second plaintiff Procter and Gamble Godrej Limited have filed the suit for injunction on the ground that the defendants are passing off the trade mark of the plaintiffs SAFEGUARD . According to the first plaintiff the second plaintiff is licensed by the plaintiff to use the trade mark under the License Agreement dated 24th February, 1993,to market, sell and distribute the first plaintiff s products in India. About the reputation and goodwill of the first plaintiff in para 5 of the plaint the case is put forth like this :

"the plaintiffs portfolio of trademarks includes well-known marks such as SAFEGUARD, CAMAY, CREST, HEAD and SHOULDERS, PAMPERS, WHISPER, IVORY, ZEST, ARIEL, TIDE, ALWAYS, and several others. The plaintiff has spent millions of rupees on advertisement, sales promotional exercises and publicity compaigns in respect of its various goods bearing the different trademarks as aforesaid. This investment has earned the plaintiff lasting goodwill and reputations under the said trademarks, and is responsible to a large extent for the plaintiffs phenomenal sales turnover and the constant popularity and demand for its products.

( 2 ) ABOUT the trade mark SAFEGUARD in para 6 the plaintiff alleges that : "safeguard for toilet soaps is one of the oldest trademarks of the plaintiff, in use since the year 1963, and registered in the USA as of 19th May, 1964. The trademark SAFEGUARD is additionally registered in over 90 other countries of the world. A detailed list of the plaintiffs said registrations in foreign countries with registration paticulars is filed herein. The plaintiffs applications for registration of the said mark in India are currently pending. "

( 3 ) IT is asserted by the plaintiffs that the plaintiffs products bearing trademark since 1970 are advertised in leading magazine like TIMES, NEWSWEEK, READER s DIGEST. The first plaintiff has been supplying the soap under the trademark SAFEGUARD to embassies and other diplomatic missions in India. The plaintiffs give a statement of advertisement expenses in the following terms : (equivalent to Rs. 76. 1 crores) (equivalent to Rs-57. 70 crores) In the same para the (Global) first plaintiff has given the statement of Sales turnover as under: (equivalent to Rs-401. 8 crores) (equivalent to Rs-502. 6 crores)

( 4 ) IN para II the plaintiffs state about the defendant in the following terms :

"the present suit is concerned with the specific goods bearing the trademark SAFEGUARD of the plaintiff and arises from the cause of action of wrongful imitation and wilful misrepresentation byadoption and use of the same by the defendants who have recently introduced in the market a cosmetic product, being antiseptic cream, under a mark that is identical to the plaintiffs mark SAFEGUARD. "

( 5 ) ACCORDING to the plaintiff s, the defendants had come into the market recently and the moment the plaintiff came to know about it, the plaintiffs had a market survey conducted by MODE Research Pvt. Ltd. In para 13 of the plaint the outcome of the market survey is detailed in the following terms :

(A) awareness of the brand SAFEGUARD among die target group was of whom 61% could correctly recall the product category; and (b) 32% of the respondents on being shown photographs of the product of the plaintiff and that of the defendant believed them to be from the same company and all of them said that the same name gave diem such impression. Thus, the results of the market survey clearly provide prima facie evidence that a very substantial section of the relevant public, i. e. one in three members of relevant public, will get confused or deceived into believing that the antiseptic cream bearing the mark SAFEGUARD originates from or has some trade connection with the plaintiff.

14. The survey was conducted by MODE in strict accordance with the basic principles applicable to market researches, namely : (a) the survey was

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