A generic or descriptive word cannot be exclusively claimed as a trade mark, and the use of a similar trade mark by another company is not actionable as passing off unless it is deceptively similar and is likely to cause confusion among consumers.

1. The present appeal has been filed by M/s. Bharat Enterprises (India), hereinafter described as "the appellants" directed against the interim order passed by the learned Additional District Judge, Sonepat, dated 25-1-1999. By virtue of the impugned order, the learned trial Court had allowed the application of the respondent-plaintiffs (M/s. C. Lall Gopi Industrial Enterprises and Miss Reema Gupta). The appellants were restrained from using the trade mark "HEAT PILLAR" for selling their room heater with the same design, shape, mark etc. The respondents were directed to file a bond within a week in the sum of Rs. 1 lack to the satisfaction of the trial Court and in the event of failing the respondents were to compensate the appellants for the loss ensued due to the order of injunction.

2. Some of the relevant facts can conveniently be delineated.

3. The case of the respondents is that the firm M/s. C. Lall Gopi Industrial Enterprises was established in the year 1993. It is manufacturing Heat Pillars under the name and style of their trade mark "HEAT PILLAR". The respondents had designed it and started manufacturing the same. It soon acquired great reputation in the country and even abroad. An application even was filed with the Registrar of Trade Marks in August, 1994. Under the trade mark "HEAT PILLAR" as a room heater it is well known to be the product of the respondents. Originally, the sister concern of the respondent M/s. C. Lall Electrical and Mechanical had applied for registration of trade mark "PILLAR". Later on, all the rights and interest were transferred to respondent No. 1.

4. The grievance of the respondents was that the appellants without any infrastructure of their own started using the goodwill and reputation of the respondents. They have started misrepresenting their products as products of the respondents. They have produced heaters in the name and style of "Belco Heat Pillar" with similar design and shape and packing material. It is deceptive. The expression "Heat Pillars" being used causes confusion to the public and loss to the respondents. It was prayed that the action for passing off the appellants should be restrained from using the name "HEAT PILLAR" as a trade mark or to sell the same under the same design, shape or mark.

5. The claim of the respondents was contested by the appellants. It was alleged that the suit of the respondents is not maintainable. The term "Heat Pillar" is a descriptive/generic word. It is used in respect of the room heater which is in pillar type shape. The room heater which is in a pillar type shape is commonly called Heat Pillar by various manufacturers. Even tenders issued by various Government agencies had called it a Heat Pillar. Copies of some tenders of Controller of Stores, Himachal Pradesh dated 2-12-1998 were produced. It was denied that the respondents had any cause in this regard.

6. The learned trial Court went into the controversy and formulated a prima facie view. It was held that the design is basically identical. The name Belco Heat Pillar and Gopi Heat Pillar can mislead the customer. The respondents have been using the work Gopi Heat Pillar before the appellants and accordingly it was concluded that the respondents have a prima facie case. Accordingly, ad interim injunction already referred to above was granted.

7. Aggrieved by the same, present appeal has been filed.

8. The argument of the appellants learned Counsel mainly proceeded on the premise that the word Heat Pillar is descriptive. It does not mislead any person. In fact, the material words used by the appellants are "Belco Heat Pillar" while the respondents use "Gopi Heat Pillar". The customer would purchase either the Heat Pillar of Belco or Gopi make. Needless to emphasize that the learned Counsel for the respondents has controverted the same.The test whether words are descriptive has been laid down in Corpus Juris Secundum, Vol. 87 in paras 34 and 35, at page 271, as follows :-

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