In an action for passing off, the plaintiff must establish that its trade name has acquired a secondary meaning or reputation, and that the name of the defendants' concern is likely to create confusion in the market.

( 1 ) BY means of this petition under Article 226 of the Const. , the petitioner who is a plaintiff in a suit pending in the Court of the learned VIII Additional Munsif, Gaziabad, challenges the legality and propriety of two concurrent orders passed by the Courts below- declining to issue a temporary injunction restraining the defendants of the suit from using and displaying their trade name during the pendency of the suit.

( 2 ) THE petitioner filed a Civil suit No. 163 of 198o at Ghaziabad for a permanent injunction restraining, the defendants, from using and exhibiting the name and style of the plaintiff company "in any manner whatsoever," Simultaneously with the institution of the suit the petitioner also filed an application for temporary injunction with the following prayer:--

"it is, therefore, prayed that a temporary Injunction during the pendency of the above case be granted the defendants restraining them from using and exhibiting the name and style of the plaintiff company i. e. , Victory Transport Co. "in any manner whatsoever. "

( 3 ) THIS application was accompanied by an affidavit of one Sri Surender Pal Singh. The affidavit was virtually a repetition of the plaint allegations.

( 4 ) THE above application was contested by the defendants, who filed a counter-affidavit refuting the various allegations made by the petitioner in the said affidavit. The trial Court considered the case of the parties in the light of what it considered the relevant principles governing such actions and came to the conclusion that the petitioner had failed to prove, both that it had a prima facie case, and that the balance of convenience was in its favour. The application for injunction was consequently dismissed.

( 5 ) AGGRIEVED, the petitioner filed an appeal, but without any success. The appellate Court concurred with the trial Court in its conclusion that the plaintiff failed to prove a prima facie case which might justify issuance of a temporary injunction.

( 6 ) SHORTLY, the plaint allegations (which were repeated in the affidavit filed in support of the application for temporary injunction) were that the plaintiff was a joint stock Company having been duly registered under the Companies Act. Its head office was in Delhi. It had a branch office at Ghaziabad, The plaintiff was doing transport business under the name and style "victory Transport Company (Private) Limited. On account of high quality service rendered by the plaintiff to its numerous customers, its trade name "victory Transport Company" had come to be associated with high quality transport carrier, The name and essential feature of this trade name of the plaintiff was the word victory Defendant No. 2 was the managing partner of defendant number 1 concern. Previously, defendant No. 2 was working as an agent for the plaintiff company on commission basis for packing and delivering goods for the plaintiff company at Ghaziabad. His agency was, however, terminated in July 1979. Lately, the said defendant started an independent business of his own as transport carrier under the name and style of Victory Goods Transport Company, "which was deceptively identical with the trading name of the plaintiff company. The defendants were deceiving the customers of the plaintiff, thereby causing substantial loss to the business of the plaintiff. The defendants had put up signboards carrying the name of the plaintiff company along with their own signboards at Grand trunk Road, Ghaziabad, where they had their office. The customers of the plaintiff were thus being led away by the defendants and hence the suit.

( 7 ) THE defendants, filed a written statement and asserted as follows. The word "victory" was not a trade name, It was only a "laudatory expression" which could not entitle the plaintiff to any monopolistic rights in respect thereto and in any case, the name "victory Goods Transport company" was not identical with or similar to the name of the plaintiff company. The tw