Gurshant Engineering Company Private Limited, Faridabad vs M/s D. L. F. Universal Limited Company

Pritpal Singh, J.—This appeal has arisen out of a suit, alleging Passing off of trade mark, instituted by the Plaintiffs-Respondents M/s. D.L.F. Universal Co. Limited, Faridabad, against the Appellants M/s. Gurshant Engineering Company Private Limited, Faridabad, to restrain the latter from using the name of ''COOL ROOM'' on their products so as to pass off their goods as those of the Plaintiffs.

The Plaintiff-Company has been manufacturing fans, cooler fans cooler Pumps and fractional horse-power motors since 1983 To start with they were using the trade mark ''AUE'' but in 1965 they changed it to ''COOL HOME''. Initially the format of the trade mark was an artistic design as shown in mark A, but the format was changed to a wavy Pattern in 1971 as shown in mark ''B''. It is alleged that the Plaintiff-Company acquired reputation and goodwill in respect of this trade mark by its long user. The Defendant-Company is said to have started manufacturing similar products in 1978 under the trade name ''COOL ROOM'' which was deceptively similar to the Plaintiffs'' trade mark. It is alleged that the Defendant-Company deliberately copied the Plaintiffs'' format in respect of their trade name so as to deceive the buyers into believing that they were purchasing the Plaintiffs'' products. The suit was contested by the Defendant-Company denying the Plaintiffs'' allegations. The learned trial Court, on appraisal of evidence produced by the parties, held that the Plaintiff-Company was prior user of the trade mark ''COOL HOME'' and that the Defendants'' trade mark ''COOL ROOM'' is deceptively similar in all its material particulars to that of the Plaintiffs'' trade mark from which the buyers of the Defendants'' products could be easily led to believe that they were the Plaintiffs'' products. On arriving at this conclusion the learned trial Court granted the following reliefs to the Plaintiff-Company against the Defendants:

(a) The Defendants, their servants, agents stokists dealers and other persons on their behalf were restrained from infringing and passing off of the rights accruing to the Plaintiffs from their trade-mark ''COOL HOME''

(b) The Defendants, their servants, agents, stockists, dealer and all other persons on their behalf were restrained from using the trade-mark ''COOL ROOM'' in respect of products manufactured and sold by or any other trade mark which is identical with and or deceptively similar to that of the Plaintiffs'' trade mark mentioned above.

(c) The Defendants themselves, their servants agents, stockists, dealers and all other persons on their behalf were restrained from dealing with or passing off their products under the trade-mark ''COOL ROOM'' as the goods and business of the Plaintiffs;

(d) The Defendants, their servants, agents, stockiest, dealers and all other persons on their behalf were restrained from infringing the rights of the Plaintiffs accruing from their copyright registration No. a-2777/67 and a-33676/81;

(e) The Defendants were directed to deliver to the Plaintiffs all the offending labels, blocks, dies, printed and advertising material, stationary and all other articles bearing the mark ''COOL ROOM'' objected to for the purposes of destruction;

(f) a preliminary decree was passed directing the rendition of accounts by the Defendants into the profits made by them by violating the Plaintiffs trade-mark and the copy-rights.

Dissatisfied with the judgment and decree of the trial Court the Defendant-Company filed the instant appeal. The appeal was initially heard by a learned Single Judge of this Court who referred it to a larger Bench for adjudication. It is in these circumstances that we are now seized of the appeal.

The question to be answered in a passing off action, according to the Supreme Court in Ruston and Hornsby Ltd. Vs. The Zamindara Engineering Co., ., is as follows:-

Is the Defendant selling goods so marked as to be designed or calculated to lead purchasers to believe that they are the Plaintiff''s goods ?

The Supreme Court observed that a gist of action is that a is not entitled to represent his goods as the goods of B but it is not necessary for B to prove that a did this knowingly or with any intent to deceive. It is enough that the get up of B''s goods has become distinctive of them and that there is a probability of confusion between them and the goods of ''A''. No case of actual deception nor any actual damage need be proved. Thus in a Passing off action it is for the Court to decide whether having regard to the appearance of the marks and of the goods, the class of people to whom the goods are to be sold are likely to be deceived or not. The two marks may not be exactly identical. It was then held by the apex Court in Corn Products Refining Co. Vs. Shangrila Food Products Ltd., that:

It is well known that the question whether the two marks are likely to give rise to confusion or not is a question of first impression. It is for the Court to decide that question." It was further clarified that:

Again, in deciding the question of similarity between the two marks we have to approach it from the point of view of a man of average intelligence and of imperfect recollection. To such a man the overall structural and phonetic similarity and the similarity of the idea in the two marks is reasonably likely to cause a confusion between them.

Applying these tests the trade mark ''Glucovita'' was considered deceptively similar to the trade mark ''Gluvita'', On the same principle in Amritdhara Pharmacy Vs. Satyadeo Gupta, ., the overall similarity between the trade mark ''Lakshmandhara'' and ''Amritdhara'' pertaining to similar medicinal preparation for the alleviation of certain ailments was considered likely to cause deception or confusion to the customers. Similarly in Ruston and Hornby Ltd. (supra) a deceptive resemblance was found between the trade marks ''Ruston and ''Rustam''.

On this subject the view taken by the Supreme Court in K.R. Chinna Krishna Chettiar Vs. Shri Ambal and Co., Madras and Another, , was that:-

The resemblance between the two marks must be considered with reference to the ear as well as the eye -. ...

Applying this test a close affirnity was found between the trade mark ''Ambal'' and ''Andal''.

In the instant case it is not disputed that the parties are manufacturing similar products, the Plaintiff-Company under the trade name of ''COOL HOME'' and the Defendant-Company under, the trade mark of ''COOL ROOM''. It is also beyond controversy that the Plaintiff-Company has been using its trade mark since 1965 whereas the Defendant-Company started manufacturing similar products in 1978 under its own trade name. There is no dispute that the products of the Plaintiff-Company under the trade name ''COOL HOME'' have acquired distinctive goodwill in the market with a wide reputation. The sole question to be decided in this case is whether the use of the trade name ''COOL ROOM'' by the Defendant Company is likely to cause confusion in the mind of the purchaser or to decide him on the first impression to believe that he is in fact buying the Plaintiffs'' products. The buyer is to be considered of an average intelligence and of imperfect recollection. The crucial test is whether the Defendants'' products are so marked as to lead the purchasers to believe that they are buying the Plaintiffs'' goods ? It is not necessary that the Defendant-Company may have knowingly or with intention to deceive had adopted the trade mark. It is enough for the Plaintiff-Company to succeed that there is a probability of confusion between his goods and those of the Defendant-Company on account of the similarity of the trade marks. It is not required that the Plaintiff-Company should prove actual deception or actual damage.

The learned trial Court has held that the Defendants'' trade mark is deceptively similar to that of the Plaintiffs and a large number of customers would be unable to make a distinction between the products of the two parties. We have no reason to differ with this view. The parties are manifestly manufacturing similar products having same get-up. There is, evidently, phoneitc similarity in the trade names ''COOL HOME'' and ''COOL ROOM''. After examining the wavy format used by the parties we find that the wavy format used by the Defendant-Company is identical in shape to that of the Plaintiff-Company. For an average buyer it is difficult to distinguish one from the other.

It is contended by the learned Appellant''s counsel that the products of the two rival Companies are purchased by affluent people of more than average intelligence and they can be expected to make a distinction between the Plaintiffs'' goods and that of the Defendants''. We are not impressed by this argument. Fans and Parts used in collers are not necessarily purchased by the starta of the society. These goods are now being used and purchased by all and sundry. The Defendants'' own evidence proves this fact. Manohar Lal (DW 2), one of the buyers of these goods, is a Fitter by profession Jawahar Lal Gulati (DW 13), another buyer is a cloth-hawker in Faridabad. He admitted that his friends who are clerks and peons are also customers of the goods. Govind Dass (DW 14) is a petty shop-keeper. Thus, we find no substance in the learned Counsel''s submissions that the similarity in the trade names of the parties and the identical nature of the wavy formats used by them on the products is not likely to confuse the buyers. We agree with the view taken by the learned trial Court that the trade mark used by the Defendant Compay is likely to lead the purchasers to believe that they are buying the Plaintiffs'' goods. It deserves to be highlighted that the view, that the trade marks used by the parties to this litigation are deceptively similar, is shared by the Defendant-Company also. The Plaintiff-Company served a notice dated 14th October, 1981 (Exhibit P II) asking the Defendant-Company to desist from using the trade mark ''COOL ROOM'' as it is deceptively similar to their own trade mark ''COOL HOME''. Reply to the notice was sent by the Defendants vide Exhibit P. 14 dated 26th October, 1981. The contents of the reply are as follows:-

You are therefore requested to instruct your clients to cease using the mark ''COOL HOME'' because it is deceptively similar to our clients'' mark ''COOL ROOM'' and also the way of writing style be stopped which is also deceptively similar to our clients'' mark ''COOL ROOM'' because our clients have already registered the same under the relevant provisions of the Copyright." A bare reading of the Defendants'' reply would show that it is in their knowledge that their trade mark ''COOL ROOM'' is deceptively similar to the Plaintiffs'' trademark ''COOL HOME'' and further that the formats are identical which are likely to mislead the purchasers. It, therefore, appears to us that the conclusion reached by the trial Court that the Appellants'' trade mark is deceptively similar to that of the Respondents cannot be stated to be erroneous. On consideration of all the circumstances, we are of the view that the overall similarity between the two trade names in respect of the same description of goods is likely to cause deception, or confusion in the minds of the purchasers. This fact is admitted by the Defendants themselves. The unwary customers are, indeed, liable to mistake the Defendants'' goods for those of the Plaintiffs.

Taking this view, the Plaintiff-Company is found entitled to the relief of injunction restraining the Defendants, their servants, agents, stokists, dealers and other persons o their behalf from using trade mark ''COOL ROOM'' in respect of their products. This relief is covered by the reliefs (a), (b) and (c) granted by the trial Court. The Respondents'' counsel fairly conceded that the remaining reliefs (d), (e) and (f) have been erroneously granted by the Court below.

In the light of what is stated above the judgment and decree of the learned trial Court are modified to the extent that the reliefs (a) (b) and (c) granted to the Plaintiff-Company are affirmed. The judgment and decree in respect thereof are upheld. However, the reliefs (d), (e) and (f) are set aside and the appeal is allowed to this extent. The parties will bear their own costs.

S.P. Goyal, J.

I agree.