The plaintiff must establish a goodwill or reputation attached to the goods or services, a misrepresentation by the defendant to the public, and the plaintiff's suffering or likely to suffer damage due to the defendant's misrepresentation in order to prove entitlement to a decree for injunction in a passing-off action.

P.K. Balasubramanyan, J.

The defendant Company challenges a decree for prohibitory injunction restraining it from using or continuing to use the name 'Indian Coffee House' to its catering establishments. The suit was filed by the respondent Co-operative Society. According to the Co-operative Society the Society was formed of the erstwhile employees of the Indian Coffee Board and according to them with the help of the Coffee Board they formed themselves into a Co-operative Society and were running coffee houses which are in reality hotels naming the establishments 'Indian Coffee House' as distinct from the establishments which were being run by the Coffee Board in the name of 'India Coffee House'. The Managing Director of the defendant Company was originally a member of the plaintiff Society and was also its Secretary for a number of years. The plaintiff society was registered in its original name in the year 1958 and the Indian Coffee Houses were started. After the Managing Director of the defendant Company left the Society due to differences of opinion, he formed a company, the Bharathiya Coffee Workers Catering (P) Ltd. and established two establishments which the defendant Company named 'Indian Coffee House" and started doing the identical business of supplying food articles and coffee and other beverages. According to the plaintiff Society it was running nine establishments in Cannanore District and the rival establishments set up by the defendant Company were deliberately named'Indian Coffee House' with a view to mislead the public and to attract customers who would have otherwise patronized the establishments run by the plaintiff society. By so doing, the defendant was passing-off his establishments as that run by the plaintiff and the defendant Company was liable to be restrained from using the name 'Indian Coffee House' for its establishment. The defendant questioned the maintainability of the suit in the Munsiff s Court since the plaintiff had proceeded as if it was a passing-off action.

The plaintiff had no right to prevent the using of the name Indian Coffee House' by the defendant Company and the plaintiff Society had no right to use exclusively the name'Indian Coffee House'. There was no intention to mislead the public. The defendant was also a retired or retrenched employee of the Coffee Board and hence he was also entitled to run a Coffee House with the help of the Coffee Board. The plaintiff was not entitled to any injunction as sought for.

2. In the trial Court on behalf of the plaintiff Exts. Al and A2 were marked and the Secretary of the plaintiff Society was examined as PW.1.On behalf of the defendant the Managing Director of the Company was examined as DW.1. Ext. Al was only a letter sent by the Deputy Chief Coffee Marketing Officer of the Coffee Board informing it that a recognition granted to the plaintiff as an approved Coffee House was being renewed for a further period and a fixed quantity of blended coffee powder was being allotted to the plaintiff for brewing purpose only and that the said quantity could be drawn from India Coffee Depot, Calicut. Ext. A2 was the bit notice published by the defendant Company inviting people for the inauguration of its Indian Coffee House. The trial court held that it had jurisdiction to try the suit, and that on the evidence of PW.1 and Dw.1, a decree could be granted to the plaintiff since the names used by the plaintiff and the defendant were identical even though it was a fact that there was no evidence to show that both the names were written in the very same fashion and style. The lower appellate court held that the suit was maintainable relying on the decision of this Court in Ravunni v. Mathew (ILR 1982 (2) Kerala 250). On the question whether a case for an injunction was made out in the case on hand, the lower appellate court even without discussing the evidence on record proceeded to confirm the decree for injunction essentially on the ground that t