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A.M. Naik, J.
Marble City Hospital and Research Centre (P) Ltd. v.
City Hospital and Research Centre (P) Ltd. and others
Miscellaneous Appeal No.3688 of 2008 (Jabalpur) : against the order
of District Judge, Jabalpur, passed in Civil Suit No.12-A of 2008;
Decided on 23.1.2009.
It is stated that the hospital, though named as Marble City Hospital, is also known/called as City Hospital, Marble Hospital or City Hospital. The word city has attained a trade name for the appellant and it is identified by it because in Jabalpur town there was no other hospital using the name Marble City Hospital or City Hospital either jointly or severally except the appellant. The appellant came to know that respondents were starting a hospital in the name of "City Hospital and Research Centre Pvt. Ltd." on the adjoining piece of land. It has been objected on the ground that the defendants have no right to use the name of appellant which is substantially confusing with appellants name. [Para 3
Held : Normally, while deciding an application for temporary injunction, three necessary limbs of prima facie case, balance of convenience and irreparable injury are taken into consideration. Fourth factor of conduct is also relevant ..... injunction is a relief of equitable nature and a balance is to be struck while dealing with a matter of injunction in as much as it is to be ensured that the plaintiffs rights are to be protected without causing obstruction/ disturbance to the exercise of rights by the defendants in a rightful manner. While striking a balance, conduct of the parties gains important significance. [Para 20
From the aforesaid, it is clear that the plaintiffs hospital is a well reputed hospital with a known goodwill. Defendants hospital, though is a separate entity, may mislead illiterate and unwary patients. It is true that the defendantsd`respondents even before this Court have categorically stated in paragraph 9 that they have not chosen the name of City Hospital and Research Centre to obtain advantage and passing off their deceptive or phonetic similarity identical to the appellants company. [Para 24
This Court finds it appropriate to order that the defendants would be entitled to use their trade name of City Hospital and Research Centre Pvt. Ltd. only after inscribing in English or Hindi as the case may be in bracket below its name everywhere on the name plates and at advertising places in bold block letter (DISTINCT FROM MARBLE CITY HOSPITAL AND RESEARCH CENTRE Pvt. Ltd.) (2002)3 SCC 65, AIR 1972 SC 1359, (2001)5 SCC 73, 1962 ER 701, (2007)6 SCC 1 and AIR 2004 SC 3540 followed. 1972 JLJ SN 68 relied on.
[Para 25
(2) Trade Marks Act, 1999 -- Ss.134(c), 2(1)(m) and (zb) -- Trade Marks Rules, 2002 -- name of appellant hospital -- falls within definition of trade mark for purposes of clause (zb) -- it can file a civil suit under S.134(c). [Para 10
(3) Companies Act, 1956 -- S.22(2) -- Trade Marks Act, 1999 -- S.134(c) -- right to sue under S.134 of 1999 Act -- is not curtailed under S.22(2) of 1956 Act -- unregistered proprietor of trade mark -- cannot submit application for change of name of another company under S.22(7) of 1956 Act. [Para 11
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iwoksZDr ls Li"V gS fd oknh dk vLirky [;kr xqMfoy okyk lqÁfrfBr vLirky gSA Áfroknhx.k dk vLirky] ;|fi mldk i`Fkd~ vfLrRo gS] fuj{kj vkSj vlko/kku ejhtksa dks Hkzfer dj ldrk gSA ;g lR; gS fd Áfroknhx.k & ÁR;FkhZx.k us bl U;k;ky; ds le{k Hkh iSjk 9 esa lqLi"V dFku fd;k gS fd mUgkasus flVh gkWfLi"Vy ,aM fjlpZ lsaVj dk uke] Qk;nk mBkus vkSj vihykFkhZ daiuh ls mldh le:irk ls /kks[kk nsus ;k mldh /oU;kRed le:irk ls dke pykus ds fy, ugha pquk gSA ¼iSjk 24
bl U;k;ky; ds fu"d"kZ esa ;g vkns‘k fd;k tkuk leqfpr gS fd Áfroknhx.k ^^flVh gkWfLi"Vy ,aM fjlpZ lsaVj Ák- fy-** ds O;kikj uke dk mi;ksx uke ifV~Vdkvksa ij vkSj foKkiu ds LFkkuksa ij loZFkk vius uke ds uhps dksBd esa ;FkkfLFkfr vaxzsth vFkok fganh esa eksVs v{kjksa esa ¼^^ekcZy flVh gkWfLi"Vy ,aM fjlpZ lsaVj Ák- fy- ls lqfHkUu**½ varfyZf[kr djus ds i‘pkr~ gh dj ldus ds gdnkj gksaxsA ¼2008½3 ,l lh lh 65] , vkb vkj 1972 ,l lh 1359] ¼2001½5 ,l lh lh 73] 1962 bZ vkj 701] ¼2007½6 ,l lh lh 1 rFkk , vkb vkj 2004 ,l lh 3540 vuqlfjrA 1972 ts ,y ts ,l ,u 68 voyafcrA ¼iSjk 25
¼2½ O;kikj fpg~u vf/kfu;e] 1999 && /kkjk 134¼10½] 2¼1½ ¼M½ rFkk ¼;[k½ && O;kikj fpg~u fu;e] 2002 && vihykFkhZ vLirky dk uke [kaM ¼[k½ ds Á;kstuksa ds fy, O;kikj fpg~u dh ifjHkk"kk esa vkrk gSA && og /kkjk 134¼10½ ds v/khu flfoy okn Qkby dj ldrk gSA
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1. This appeal is directed against the order dated 30.7.2008 rejecting thereby an application for temporary injunction by the Court of District Judge, Jabalpur in Civil Suit No.12-A/2008.
2. Facts involved herein are that the plaintiff is a Marble City Hospital and Research Centre Pvt. Ltd. with its registration under the provisions of the Companies Act, w.e.f. 11.7.1997. Respondents No.2 to 5 leased out their property to the plaintiff-appellant for running its hospital in it. Presently the lessors are realising rent @ Rs.1,36,000/- per month in addition to Rs.20,000/- per month for the top floor. It is situated on main road in front of Hero Honda showroom. Respondent No.5 in addition to being one of the lessors has also purchased the shares and remained director of the plaintiff-appellant till 31.1.2005. There arose a dispute about his directorship. The Company Law Board, New Delhi directed for his reinstatement as director against which an appeal bearing M.A. (Company) No.01/07 preferred by the plaintiff-appellant is allegedly pending wherein an interim stay order is stated to have been issued.
3. Respondent No.5 purchased a piece of land behind the plaintiff appellant's said hospital building in the year 2006. This is adjacent to the appellant's hospital premises. Both the pieces of land i.e. the piece of land purchased- by respondent No.5 and the piece of land on which plaintiff's hospital is situated originally belonged to one Balbir Singh Anand forming plot No.21. It is pleaded by the plaintiff-appellant that the shareholder doctors of the plaintiff hospital are having special expertise in the medical fields and with the passage of time, the plaintiff hospital has acquired a good degree of reputation in and around the town of Jabalpur and the patients are coming to it due to its name and fame on account of services rendered by it. It is stated that the hospital, though named as Marble City Hospital, is also known/called as City Hospital, Marble Hospital or City Hospital. The word 'city' has attained a trade name for the appellant and it is identified by it because in Jabalpur town there was no other hospital using the name 'Marble City Hospital' or 'City Hospital' either jointly or severally except the appellant. The appellant came to know that respondents were starting a hospital in the name of "City Hospital and Research Centre Pvt. Ltd." on the adjoining piece of land. It has been objected on the ground that the defendants have no right to use the name of appellant which is substantially confusing with appellant's name. Plaintiff-appellant instituted a suit for declaration and injunction, simultaneously with an application for temporary injunction to restrain the defendants from using a trade name/trade mark City Hospital and Research Centre/City or any trade name or trade mark which is identical to and/or deceptively similar or resembling to appellant's trade name and mark as the same is likely to deceive or cause confusion. Restraint order was also prayed for against respondents No.2 to 5 from using the said plot for hospital business.
4. Defendants-respondents submitted a joint reply refuting thereby the allegations contained in the plaint as well as the application for temporary injunction. They have also submitted a detailed reply before this Court. It is stated that the answering respondents have started a company by the name of 'M/s. City Hospital and Research Centre Private Limited' having its registered official address at New 112, Old 14, South Civil Lines, Pachpedi, Jabalpur. The company is registered and known as Corporate Identity No.U85110MP008PTC020309. There are three directors in the company namely Shri Manjeet Singh Mokha, Smt. Gurucharan Kaur Mokha and Smt. Jasmeet Kaur Mokha. Respondent No.2 in the present case is the Managing Director of the aforesaid company The hospital of the company is being started at 21/2, Block No.3, Civil Station, Jabalpur on a land admeasuring 18069 sq.ft. A lease h
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