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High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE S.S. SUBRAMANI AND THE HONOURABLE MR. JUSTICE SRINIVASAN
First Computers (Formerly) Known As Brilliants Computer Centre
Versus
A. Guruprasad
Suit No. O.S.A. No. 74 of 1995
Decided On : 10-04-1995
PASSING OFF - INJUNCTION - TRADE NAME - SIMILARITY - CONFUSION - BALANCE OF CONVENIENCE - UNDERTAKING BY APPELLANT NOT TO USE THE TRADE NAME IN RELATION TO THE SALE OF COMPUTERS - INJUNCTION MODIFIED.
Fact of the Case:
The respondent, who was using the trade name "First Computers" for his business of selling computers, filed a suit for permanent injunction restraining the appellant, who had changed its business name from "Brilliants Computer Centre" to "First Computers", from using the trade name "First Computers" or the word "First" in relation to its computer business. The appellant contended that it had carried out searches and found that the name "First Computers" was not registered with any statutory authority and that it had adopted the name bona fide without any reference to the respondent's business.
Finding of the Court:
The court held that the appellant's change of name from "Brilliants Computer Centre" to "First Computers" would not create confusion in the minds of the public between the two different businesses, one conducted by the respondent and the other by the appellant. However, the court also held that the respondent was entitled to protect his trade name from being encroached upon and damaged by any other trader.
Issues: 1. Whether the appellant's use of the trade name "First Computers" was likely to cause confusion in the minds of the public and lead to passing off? 2. Whether the respondent was entitled to an injunction restraining the appellant from using the trade name "First Computers"?
Ratio Decidendi: 1. The court held that the appellant's use of the trade name "First Computers" was not likely to cause confusion in the minds of the public and lead to passing off because: - The businesses of the respondent and the appellant were different, with the respondent selling computers and the appellant providing computer training. - The appellant had carried out searches and found that the name "First Computers" was not registered with any statutory authority. - The appellant had adopted the name bona fide without any reference to the respondent's business. 2. The court held that the respondent was not entitled to an injunction restraining the appellant from using the trade name "First Computers" because: - The respondent had not registered his business name with any statutory authority. - The respondent had not acquired a reputation in the trade name "First Computers". - The appellant had undertaken not to use the trade name "First Computers" in relation to the sale of computers.
Final Decision: The court allowed the appeal and modified the injunction order by directing the appellant to make it clear in all its advertisements, pamphlets, etc., that it had nothing to do with the business conducted by the respondent.
S. S. SUBRAMANI, J.
The respondent in O.A. No. 151 of 1995 in C.S. No. 253 of 1995, is the appellant
2. The suit was filed by the respondent herein for permanent injunction restraining the appellant by the themselves, their servants, agents or any one claiming through them from using the trade name/business name "First Computers"/
"1st Computers"or using the word" First/1st for conducting any business relating to computers and pass-off their business, as the business of the plaintiff and for a direction to the defendant (appellant) to render a true and faithful account of all the profits made by them by the use of the business name/trade name "First Computers" or the expression "First" in relation to its computer business and direct the defendant to pay over to the plaintiff the proceeds that may be found due on taking of such accounts, and for other consequential reliefs
3. Along with the suit, the plaintiff filed the above original application. The relief sought in the original application is the same as the first relief in the suit
4. The material averments that are alleged in the plaint are, that the plaintiff started the business of trading in computers in the name and style of "First Computers". He obtained certificate of Registration in his business name under Rule 24 of Tamil Nadu General Sales Tax Rules from the Commercial Tax Officer, Madras. A similar Certificate has been obtained for the business of computers in the name of "First Computers" under the Central Sales Tax (Registration and Turnover) Rules, 1957. It is also averred that for the purpose of importing computers, the plaintiff has obtained an Importer and Exporter Code from the Officer of the Joint Director General of Foreign Trade, Madras and Reserve Bank of India Exchange Control Department, Madras. It is also stated that he was assessed to income-tax in the name of Guruprasad, as Sole Proprietor of "First Computers". He has also given some details of the turnover since 1989. It is also stated that for income tax purposes, he has to obtain annually an Auditors report with respond to his business and the Report is also obtained in the name of "First Computers". He has also accounts with Union of India. There also, the expression "First Computers" is used as plaintiff business name. It is stated that the name and style of "First Computers" is given to the defendant. In September 1994, the defendant desired the plaintiff to undertake annual maintenance of the Computers in all their Computer Centres, and the plaintiffs engineer had personal discussion with one R. Ramesh, Regional Manager of Messrs. Brilliants Computer Centre, the name by which the defendant was previously known. It is stated that since most of the computer equipments used by the defendant were found to be obsolete, the plaintiff expressed his inability to undertake comprehensive annual maintenance of the computers of the defendant. It is stated that at the time the appellants Regional Manager R. Ramesh had handed over his visiting card, which is filed as one of the exhibits. It is alleged that in July 1994, the appellant, through one of its managers, Mr. Balasundaram, placed orders, for certain computer equipment with the plaintiff. The goods were, however, returned as they did not satisfy the requirement of the defendant (appellant). The plaintiff has been selling and servicing computers not only in the City of Madras but also all over South India. A list of 54 leading customers of the plaintiff has also been appended to the plaint. The plaintiff further avers that in December 1991, he wrote to the Registrar of Companies, Madras, for approval of the name "First Computers" to float a company "First Computers Pvt. Ltd." The object of the proposed company was for dealing in computers and maintenance of computers and system designs. Necessary fee was paid for search of conflicing names. The Register of Companies, by letter dated 112. 1991, after search of their list, found that there
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