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TMI Blog1977 (8) TMI 176X X X X Extracts X X X X X X X X Extracts X X X X ..... rge and consumers, it was necessary to restrain the defendant Company from carrying on business under any name and style comprising the words 'Simatul' or Cibatul or any other word comprising the plaintiff's name and style so as to represent or induce into believing that the defendant-Company is the same as the plaintiff-Company or that if the goods manufactured and sold by the defendantCompany are the goods manufactured and sold by the plaintiff-Company 2. A public limited company known as the Atul Products Limited isengaged in the manufacture of dyes and chemicals of various types since 1947. In collaboration with a Swiss Co. with international reputation in the sphere of manufacture of dyes and chemicals known as Chemical Industry of Bezal which is known in the international marked as CIBA , it floated a Company in 1960 under the name and style of Cibatul . which represents the names .of the two collaborating Companies (Cita+Atul). In other words, it is a fancyor coined name under which the plaintiff-Company is carrying on its manufacturing and business activities. The plaintiff-Company commenced the manufacture of a chemical known as Formal dehyde in abou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l right tQ prevent the defendant-Company from carrying on its business in the present name in case the Court comes to the conclusion that the two fancy names are deceptively similar. 4. So far as the first point is concerned, and the question regarding similarity or otherwise of these two fancy names there is oral evidence which has been accepted by the trial Court in support of the finding recorded in favour of the plaintiff-Company. P.W. 2, a dealer in' chemicals, says that the customers were in fact confused by the similarity. So do P.W. 3 and P.W. 5 other two dealers. The trial Court has accepted their evidence and we, see no good reason to differ from the assessment made by the trial Court. The question will have, however, in substance to be decided on our own assessment as regards similarity and likelihood of confusion. If it were otherwise, parties can always offer oral evidence both for and against, some witnesses may say that the names are similar and are likely to cause confusion, others may say that they are not similar and not likely to confuse and that in fact they themselves were not confused. The decision cannot be made to depend on the opinion expressed by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt-difendant in its name is also a fancy or invented word. It is neither incumbent nor necessary nor natural for the defendant Company to use the said word in its name. It is a word that the appellant Company has deliberately invented and deliberately used. R is the case of the respondent-plaintiff that this has been done fraudulently and purposefully with a deliberate view to secure unethical and undue advantage of the goodwill earned by the similar name used by it in respect of its well known products and that it was done by way of invasion of the plaintiff-Company's proprietary right in its goodwill. It is complained that this was done with a view to create an impression amongst the trade and the~ persons dealing with the defendant-Company that they were dealing with the plaintiff-Company. We will examine this aspect a little later. For the present we propose to consider the question whether the two names are so deceptively similar as to cause confusion amongst the persons dealing with these Companies and whether the plaintiff Company is justified in taking exception to the use of the word Simatul in its name. 7lie two words Cibatul occurring in the name of the plaintiff ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lings or a person with a photographic memory or a memory much better than that of an average person. We have to apply the test of an average person with average memory and imperfect recollection. We must also not forget that the products manufactured by the two Companies are marketed all over India in different provinces and the same may also be exported to foreign countries. And the similarity in the names may have to be examined from the standpoint of persons speaking different languages whom one cannot expect to notice these very minor differences which do not detract from the general impression of similarity created by the salient features pinpointed earlier in the course of the discussion. The points of similarity far outweigh and out-number the points of difference so much so that we have no hesitation in concluding that the finding recorded by the learned trial Judge is unexceptionable. Be it realised that it is not necessary for the plaintiff to show that the words are identical. The plaintiff has not set out to establish that it is a question of the user of an identical name. The plaintiff has simply undertaken to show that the two names are so deceptively similar that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... At Ex. 22 is a reporl appearing in a daily newspaper publisli-, ed from Surat, Gujarat Mitra in the issue of 29-6-73. After giving the particulars of the Company about its production capacity, working capital etc.. the news-item (which presumably appears to be based on a handout) in its last para adverts to this aspect. The said para may be quoted:- Vadodara pase nandesari sthits' G.I.D.C. na industrial estate ma eka navo petrochemical plant dasa ekarani jamin upar akar lai rahya chhe. Enu nam chhe, M/s. Seamantal Chemical Industries_fPvt.) Ltd. Aa plantama garuata-4 thi varshik panchattarso metric ton folmal dehydenu utpadan karavama avashe, Aa plantani vishishtata e chhe ke any tamam machinery ane technical jankari sampurn swadeshi hashe. Italuj nabi eno mukhya kacho mal menthol pans, Bharatamathi ja levama avashe. Prayogik utpadan 1,974 ni Sharuatama an@ vyavasayik utpadan 1,974 ni madhyama sharu thashe evi ganatari chhe. Aa plant sthapawama Kharch andaje Rupeea pasatha lakh thasile ane beeja rupeeya 10 lakh working capital joyashe. Aa rakam eno vahivatkarta. seema kutumba marfat ane G.I.D.C. temaj G.S.F.C. ni ane anya vepari bankoni lambagalana dheeran yojana d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in advance and had a guilty conscience. Why else was it necessary to offer an explanation for coining an invented word to be used in the Company's name. Secondly even this attempt is a crude attempt in the sense that whereas in the report itself the name of the founder is shown as '14W the word invented is qJRV And what causes great surprise is the fact that in the Court an additional excuse is offered for selecting this word, namely, that it is a combination of the name of a girl and a boy from the families of the Directors.' As against this, it is not even stated on oath by any of the witnesses of the defendant-Company that the family of the entrepreneurs who promoted the Company was known as 'Sima' family as was declared in the handout. It was stated that it was a joint family concern and that the name 'Simatul' was selected or coined by picking up the first two letters in the name of grand father of the Managing Director of the Company Shivdas Madhavdas Patel. In the same breath it was stated that one Naranbhai was a co-promoter of the defendant-Company and was a younger brother of the Managing Director and that Sima was the name of Naranbhai&# ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... following terms:- Sub:- Similarity in name CIBATUL Limited was registered as a Corporate Body with the Registrar of Companies, Ahmedabad under the Companies Act, 1956 on 7-12-1960. At present, we are manufacturing Formaldehyde and other products at Atul. We have noticed from the recent advertisement in the newspapers that you are putting up a plant for the manufacture of Formaldehyde. We are'worried about the similarity in the name of your company and that of ours, and as such we are afraid that there may be confusion in the minds of the public regarding the identity. In fact, some of the parties have approached us for formaldehyde referring to your advertisement in the newspapers. We are sure that- SIMATUL a name similar to ours must have been chosen by you inadvertently and not deliberately and that you have no intention of either passing your goods as our goods or creating confusion in the minds of the public in general. The name of our company CIBATUL'~ has been in use for over 13 years and the name of your company which resembles to ours is, therefore, highly objectionable. May we, therefore, request you to take necessary step to change th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to 1898 and a decision of the Bombay High Court going back to 1922 (National Bank of India v. National Bank of Indore. A brief tour of the decisions on this subject may fruitfully be made. 7. As early as in 169-8 a question of similar nature cropped up on a dispute between Dunlop Pneumatic Tyre Co, Ltd. v. Dunlop Lubricant Co. (1898) 14 RPC 12, decided by the High Court of Justice-Chancery Division on Nov. 17, 1898. The Court came to the conclusion that the defendant was using the word 'Dunlop' in its name with a view to Educing customers to believe that the goods marketed by it were in some way connected with the plaintiff-Company if not the goods manufactured by the plaintiff-Company itself or manufactured with its sanction.,The plaintiff succeeded in obtaining an injunction restraining the defendant from carrying on a business using the name 'Dunlop' in, that case. 8. In Ouvah Ceylon Estates Ltd. v. Uva Ceylon Rubber Estates Ltd. (1910) 27 RPC 645, Mr. Justice Joyce affirmed this proposition in his judgment dated June 17, 1910. In that case a geographical name was used in the names of two Companies locked in the debate. The name in question was the name of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... carry on business in that name and issued an injunction as prayed for (see (1958) 75 RPC 161). It may be stated at this juncture that in the aforesaid case a grievance was with regard to the use of the identical name which is not the case so far as the present matter is concerned. However, so far as the principle is concerned, it makes no difference. No useful purpose will be served by multiplying the instances of cases decided by the English Courts where injunction was issued in order to restrain the defendant from doing business by using a name deceptively similar so as to cause confusion. It is now zero-hour to refer to the law laid down by the High Court of Bombay in National Bank of India v. National Bank of Indore. In that case the plaintiff Company was doing banking business in the name of The National Bank of India. The defendant Company engaged itself in the same business, namely, banking business under the name of The National Bank of Indore. Though there was a glaring point of difference in the sense that while the plaintiff-Company was using the geographical name of the whole country, namely, India, the defendant-Company was only using the name of one of the States, na ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er the name of The North Cheshire and Manchester Brewey Co. Limited. The plaintiff-company complained that the name of the defendant company was calculated to induce the belief that the plaintiff company had ceased to carry on business as a separate company and that the defendant company was an amalgamation of the plaintiff-Company and the North Cheshire Brewery Limited, and it sued the defendant company for an injunction. Byrne J. refused the injunction, but the Court of Appeal reversed the judgment and granted the injunction. The judgment of the Court of Appeal was upheld by the House of Lords. In the course of his speech the Lord Chancellor said (1699) AC 83)., I have no complaint to make of their (counsel) being too long or too elaborate; but the truth is, that when one comes to see what the real question is, it is in a single sentence. Is this name so nearly resembling the name of another firm as to be likely to deceive? That is a question upon which evidence of course might be given, as to whether or not there was another brewery either in the one place or in the other, or whether there were several breweries nearly resembling it in name; what the state of the trade ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd articles of association to carry on a retail business, but that at the present moment they have no such intention. I should be very sorry indeed if the jurisdiction of the Court should be regarded as so limited .........I know of no authority, see no principle, which withholds us from preventing injury to 'the Plaintiff in his business as a trader by a confusion which will lead people to conclude that the defendants are really connected in some way with the plaintiff or are carrying on a branch of the plaintiff's business. In our opinion, in view of the law on the subject which appears to be firmly settled, it is futile to contend that the Plaintiff Company cannot claim an injunction restraining the defendant Company from carrying on its business in a name so deceptively similar as to cause confusion amongst those who may be concerned in dealings with it. just as a citizen is entitled to protection in respect of his movable and immovable properties, he is also entitled to seek protection in respect of his proprietary rights in a goodwill. As the Court will not Permit theft of the property of a citizen, it will not permanents the theft of the goodwill earned by a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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