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High Court Of Delhi
HINDUSTAN RADIATORS COMPANY - Appellant
Versus
HINDUSTAN RADIATORS LIMITED - Respondent
Interim Application 989 of 1986
Decided On : 02/11/1987
TRADEMARK - PASSING OFF - INFRINGEMENT - AD INTERIM INJUNCTION - Prima facie case - Balance of convenience - Irreparable injury - Similarity of trading style and trade mark - Likelihood of confusion and deception - Plaintiff's long and continuous user of trading style and trade mark - Defendant's recent incorporation and intention to use similar trading style and trade mark - Plaintiff's established reputation and goodwill - Balance of convenience in favor of plaintiff - Irreparable injury to plaintiff if injunction not granted.
Fact of the Case:
Plaintiff, a partnership firm engaged in the manufacturing and sale of radiators under the trading style "hindustan RADIATORS CO." and the trade mark "hindustan RADIATORS/h. R.", filed a suit for permanent injunction against the defendant, a limited company incorporated recently, to restrain them from using the trading style "hindustan RADIATORS LIMITED" and the trade mark "hindustan RADIATORS/h. R." on the grounds of passing off and infringement of trade mark. The plaintiff claimed that they had been using the trading style and trade mark since 1959, had acquired a distinctive reputation and goodwill, and had spent a considerable amount on advertising. The defendant contested the suit, alleging that the plaintiff's trading style and trade mark were not distinctive, that there were other firms using similar names and marks, and that the plaintiff's suit was mala fide. The plaintiff filed an application for ad interim injunction to restrain the defendant from using the impugned trading style and trade mark during the pendency of the suit.
Finding of the Court:
The court held that the plaintiff had established a prima facie case for grant of ad interim injunction. The court noted that the plaintiff had been using the trading style and trade mark since 1959, had acquired a distinctive reputation and goodwill, and had spent a considerable amount on advertising. The court also noted that the defendant was incorporated recently and intended to use a similar trading style and trade mark. The court further held that the balance of convenience lay in favor of the plaintiff and that the plaintiff would suffer irreparable injury if the injunction was not granted.
Issues: 1. Whether the plaintiff had established a prima facie case for grant of ad interim injunction? 2. Whether the balance of convenience lay in favor of the plaintiff? 3. Whether the plaintiff would suffer irreparable injury if the injunction was not granted?
Ratio Decidendi: 1. To establish a prima facie case for grant of ad interim injunction in an action for infringement of trade mark or passing off, the plaintiff must show: (a) long and continuous use of the trading style and trade mark; (b) recent entry of the defendant into the field; (c) distinctiveness of the plaintiff's goods and association with the plaintiff in the mind of the general public; (d) similarity of the nature of activity of the plaintiff and the defendant; (e) similarity of the goods to which the trade mark of the plaintiff is associated; (f) likelihood of deception and confusion in the public mind and injury to the business reputation of the plaintiff; (g) same sphere of activity and market of consumption of goods of the parties; (h) uneducated, illiterate, and wary customers of the plaintiff who are capable of being deceived or confused or misled. 2. The balance of convenience lies in favor of the plaintiff when the plaintiff's position is infinitely superior to that of the defendant who intends to use the trade mark and trading style of the plaintiff. 3. Irreparable injury to the plaintiff includes the likelihood of confusion caused by the defendant's use of the mark and the likelihood of the defendant raising the plea of common or concurrent user at a later stage.
Final Decision: The court allowed the plaintiff's application for ad interim injunction and restrained the defendant from using the trading style "hindustan RADIATORS LIMITED" and the trade mark "hindustan RADIATORS/h. R." during the pendency of the suit.
( 1 ) M/s. Hindustan Radiators Company, Station Road, Jodhpur, a partnership concern, has filed this suit for permanent injunction against passing off and using its trading style and trade marks by M)s. Hindustan Radiators Limited, Model Town, Delhi, on the allegations that the plaintiff was carrying on business since 1959 and had been manufacturing about hundred types of radiators for use in various vehicles like buses, trucks, cars, jeeps, cranes and compressor etc. under the marks "hindustan RADIATOR" and with the initials "h. R. ", short form of hindustan Radiator on the radiators manufactured by it and due to extensive, long and continuous use the trading style hindustan RADIATOR CO. and the trade mark hindustan RADIATOR/h. R. " known and associated with the excellent quality of radiators. manufactured and sold and offered for sale by the plaintiff ; that the plaintiff has since 1959 sold radiators approximately of the value of seven crores of rupees and their present annual sale was approximately fifty lakhs of rupees and the plaintiff s main market is in Delhi ; that the plaintiff has been supplying "hindustan RADIATORS" to M/s. Mysore State Road Transport Corporation, Mohindra and Mohindra, Bombay, State Transport, Maharashtra, Kirloskar Pneumatic Company. Pune and several other leading concerns, and has also been exporting Hindustan Radiators outside India and has been taking part in exhibitions and has been awarded Udyog Patras ; that the plaintiff has been advertising its radiators with its trade style and marks in various leading trade magazines and has spent approximately two lakhs of rupees on the advertisements and trade promotion and its present annual expense on advertisements is to the tune of Rs. 30,000. 00 ; that due to long, continuous and extensive user of the trading style "hindustan RADIATOR CO. " they are known in the public as hindustan Radiator Wale and their radiators are asked for as hindustan Radiators or H. R. Radiators ; that the plaintiff has applied for registration of trade marks "h. R. " and "hindustan RADIATOR" in the Trade Marks Registry, New Delhi ; that apart from Government and semi-government bodies, the purchasers and intending purchasers of plaintiffs Hindustan Radiator H. R. radiators include illiterate persons, mechanics, drivers as well ; that about a fortnight before the filing of the suit, the plaintiff has come to note that the defendent had incorporated a company under the name "hindustan Radiators Limited" with their registered office at Delhi and the main business thereof as evident from trading style and from the brocnure issued by the defendant is of manufacture of radiators for cars, trucks, tractors etc. and the defendant is going to bring radiators on commercial scale into the market soon ; that it has further come to the notice of the plaintiff from the brochure issued by the defendant that the defendant is also using and intend to use the trade mark "h. R. " as their mark in respect of their radiators ; that the trading style of the defendant is exactly similar to that of the plaintiff and likewise the mark used by the defendant is also similar and same and the purchasers and intending purchasers would find it difficult to differentiate between the goods of the plaintiff from the goods of the defendant in view of the similarity in the name of the trading style and this would result in passing of the goods of the defendant as that of the plaintiff and to the detriment of the plaintiff and the public and the intending customers are likely to consider the goods of the defendant as that of the plaintiff that even otherwise the public and persons in trade have started making enquiries from the plaintiff about the plaintiff being converted into a limited company under the Companies Act and the public is likely to invest and purchase the defendant s company s share on the assumption and belief that the plaintiffs have converted themselves into a limite
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