In passing-off cases, the plaintiff must establish a distinctive character recognized by the market, and the absence of the need to prove malice or damage to maintain the action.

1. The defendant in an action for passing-off is the appellant.

2. The suit is for the grant of a prohibitor injunction restraining the defendant from using the words 'National Garments' and the yellow colour get up in the box' used in connection with the sale of the goods manufactured by the defendant and for seizure of all the materials used for printing the aforesaid words viz. National Garments', Tonoform' and the colour boxes etc. and to have them destroyed at the cost of the defendant. There are certain other minor reliefs sought for in the suit, but they are not stated here as they are not relevant in the context.

3. The temporary injunction sought for has been granted by the order under challenge.

4. Facts relevant and requisite for the purpose of deciding the dispute lie in a narrow compass. The plaintiff is a firm of which the appellant was a partner till retirement on 1st September, 1987. The plaintiff has applied to the authority concerned for the registration of its Trade Mark Toneform'. The plaintiff has been using this trade name to identify its products. The defendant after retirement from the firm, has started an identical business and the trade name used by her is 'Tunoform'. It is further alleged that even the branding of the words 'o' and 'e' are such that the purchasers of these materials would go in for the products of the defendant as if they are the products of the plaintiff. In proof of these allegations the plaintiff has produced along with the plaint two cover boxes. Those cover boxes, in any event, establish that the get up, the marking, branding etc. on them are likely to deceive the customers. For instance the brand name of the brassiers manufactured by the defendant is 'Sundari' whereas the brand name of that product of the plaintiff is 'Sundary'. Many such instances have been enumerated in the plaint to show that the materials manufactured by the defendant are being sold in the market as if they are the products of the plaintiff. These in short are some of the main allegations in the plaint The defendant has not so far filed written statement, but in the counter affidavit filed in the interlocutory application, she has tried to explain the circumstances under which she started using the trade name etc. highlighted in the plaint. The dispute as to whether there is any passing-off has yet to be decided and for that matter that can be decided only in the suit.

5. The question now before me however is, was the court below, under the circumstances indicated hereinbefore, justified in granting the temporary injunction?

6. This question cannot be answered in vacuum and therefore it has become necessary atleast to touch upon the definition of the word 'passing-off '. I shall in this connection cite the following passage from Kerly's treatise on Law of Trade Marks and Trade Names:

"It is an actionable wrong for the defendant to represent, for trading purposes, that his goods are those or that his business is that of the plaintiff, and it makes no difference whether the representation is effected by direct statements, or by using some of the badges by which the goods of the plaintiff are known to be his, or any badges colourably resembling these, in connection with goods of the same kind, not being the goods of the plaintiff, in such a manner as to be calculated to cause the goods to be taken by ordinary purchasers for the goods of the plaintiff".

The plaintiff in an action for passing-off therefore has to establish that his products have derived from the advertising a distinctive character recognised by the market. Plainly stated the principle of law is that "nobody has any right to represent his goods as the goods of somebody else" and sell it in the market for his own aggrandisement. This rule has been treated as a special instance carved out of the general rule that any misrepresentation calculated to give one trader the benefit of another's goodwill is actionable. Generally stated any misreprese