A.K Sikri, J.— The plaintiff has filed the suit for permanent injunction and rendition of accounts on the averments that the plaintiff is a partnership firm doing the business under the name and style of M/s. Roopak Stores since 1958. It has been doing the business of General Merchandise, Provisions, Spices, Pickles, Kiryana, Toiletry, Confectionary and Dry Fruits, etc. Word ‘Roopak’ of M/s. Roopak Stores is the principal part of the trading style as well as the business trade mark. Plaintiff has spent lacs of rupees on advertisements in respect of the said trading style and the trade mark on T.V, Radio, Newspaper and other media of publicity. Sales of the plaintiff of the said goods run into crores of rupees. Said trading style and trade mark of the plaintiff have acquired good will in the market. It is further alleged that the plaintiff came to know that the defendant started the business of the General Merchandise, Provisions, Spices, Pickles, Kiryana, Toiletry, Confectionary and Dry Fruits, etc. under the trading style “RUPAK DEPARTMENTAL STORE” of which the word Rupak is the principal part and Departmental Store being only descriptive. Defendant is passing off its goods as that of the plaintiff and the plaintiff has thus been suffering loss and damages.

2. Along with this suit, the plaintiff had filed I.A No. 5584/97. Summons in the suit as well as notice in the application were served on the defendant. I.A No. 5584/97 under order xxxix, rules 1 and 2, cpc was argued by both the parties and order dated 7th August, 1998 was passed allowing the said application and restraining the defendant from using the word ‘RUPAK’ as part of its trading name during the pendency of the suit. The said order is in operation.

3. After the aforesaid order was passed, defendant stopped appearing in the matter and by order dated 17th May, 1999 defendant was proceeded ex parte. The plaintiff was permitted to lead ex parte evidence by way of affidavits. Pursuant to this direction, the plaintiff filed affidavit of Sh. Roopak Gulati, one of the partners of the plaintiff firm. In this affidavit the witness has affirmed the various averments made in the plaint. The witness has also proved on record various documents. Label of the plaintiff is Ex. PW 1.A. Cash Memo showing the trading name of the defendant is also similar to that of the plaintiff is Ex. PW 1.B. The plaintiff has also placed on record the year wise statement of the sales as Ex. PW 1.C, sales tax certificate, assessment orders and sales bills as Ex. PW 1.D, E, F as well as PW 1/1-20 respectively.

4. In view of the aforesaid unrebutted testimony of the plaintiff and in the absence of any evidence of the defendant, the plaintiff has been able to prove its case to the effect that plaintiff's goods registered under the trade mark ‘ROOPAK’ and trading style ‘ROOPAK STORES’ have become distinctive of the goods of the plaintiff and have earned goodwill and reputation in that trade. The use of the name ‘RUPAK’ by the defendant is, therefore, deceptively similar to that of the plaintiff and would cause confusion in the minds of the general public. The trading by the defendant by using the word ‘RUPAK’ would amount to passing off the goods by the defendant as that of the plaintiff. In support of the submission that the defendant is not entitled to run business under the trading style Rupak Departmental Store, reliance was placed by Sh. Aggarwal on the decisions in B. K. Engineering Co.… v. Ubhi Enterprises (Regd.) & Anr…S.), 1985 PTC-1, Wright, Layman and Umney Ld. v. Wright, 1949 RPC 149, Joseph Rodgers and Sons Ld. v. Joseph Rodgers Simpson, 1906 RPC 297, Bajaj Electricals Limited, Bombay v. Metals and Allied Products, Bombay, AIR 1988 Bombay 167, Montari Industries Ltd. v. Montari Overseas Ltd., 1995 1 AD (Delhi) 1319, Ellora Industries, Delhi v. Banarsi Dass, Delhi, 1981 PTC 46 and Century Traders… v. Roshan Lal Duggar & Co… and Co., AIR 1978 Delhi 250. On the point of use of trading style out of the said cases only the decisions 1985 PTC 1, 1906 RPC 297 and 19951 AD (Delhi) 1319 need to be referred.

5. In B.K Engineering Co.'s case (supra), plaintiffs/appellants started manufacturing cycle bells as early as 1971 and they adopted “B.K” as their house mark. They, however, manufactured the bells under the trade mark Crown and Venue. Defendant/respondent marketed their cycle bells in 1981 under the trade mark.”B.K-81”. In a suit for passing off filed by the plaintiffs an application for temporary injunction seeking to restrain the defendant from using the mark “B.K-81” in respect of the cycle bells was filed which was declined by the learned Single Judge of this Court by the order dated 30th April, 1984. Appeal taken out against that order by the plaintiffs was allowed by the Division Bench. Headnote which reflects the gist of the decision which is relevant reads as under:

“The modern tort or passing of f is a misrepresentation made by a trader in the course of trade, to prospective customers of his or ultimate consumers of goods or services supplied by him which is calculated to injure the business or goodwill of the trader by whom the action is brought and accordingly what the Judge has to decide in a passing off action is whether the public is likely to be deceived. The question whether the plaintiffs manufacture cycle bells under the trade mark B.K is not a pertinent question, the real pertinent question is whether the name ‘B.K’ adopted by the defendants as the trade mark of their product is likely to mislead the purchasing public into thinking that it is a product of B.K Engineering Co. As both the firms are engaged in a common field of activity, there is a real possibility that the public to which the defendants address their wares would draw the association with the plaintiffs of which the complaint is. Thus the plaintiffs have shown a prima facie case that they are likely to sustain injury by defendants' misuse of their “goodwill”. As regards delay and acquiescence, there being nothing to show that plaintiffs encouraged the defendant to go ahead with “B.K-81” bells, the defendants' arguments cannot be accepted. Similarly the defendants' business being a recent venture, the balance of convenience is in granting of interim injunction to prevent the violation of the plaintiff's rights. Thus the misrepresentation being prima facie established, the plaintiffs are entitled to a temporary injunction as the name “B.K” is associated with the plaintiffs' business if not goods”.

6. In the decision in Joseph Rodgers and Sons LDs. case (supra), the plaintiffs Joseph Rodgers and Sons Ltd., manufacturers of cutlery, brought an action against Joseph Rodgers Simpson to restrain it from passing off cultery not being their goods as and for such goods, and from trading under the name Joseph Rodgers Simpson's Son, or any other name comprising the name “Rodgers”, so as to be calculated to deceive. They alleged that the defendant was using the said firm name so as to suggest that the first name in it was Joseph Rodgers. The defendant was on his knives using the device of a crown which was placed over the name Rodgers, in which position the plaintiffs had a crown on their knives, they having also the words “Cutlers to Her Majesty”. The defendant alleged that his son, who was 31 years of age, assisted him in his business and that he had used the said firm name on knives 20 years previously. The defendant was carrying grocer's business, but he was also, as the plaintiffs alleged that they had recently ascertained, selling knives marked as above mentioned. The defendant claimed that he had the right to use the name Joseph Rodgers Simpson and Son, and contended that his use of it was fair. On these facts it was held thus:

“That the defendant had made use of the fact that the middle word in his name was Rodgers in order to use it in a way calculated to deceive the public into believing that the cultery which he was selling was the plaintiff's cultery. An interlocutory injunction was granted, the form of injunction, as regards the name, following that granted in J. and J. Cash Ld. v. Cash, 19 RPC 181”.

7. In the decision in Montari Industries case (supra), the plaintiff M/s. Montari Industries Ltd. filed suit for issuance of permanent preventive injunction restraining the defendant-M/s. Montari Overseas Ltd. from using trading or carrying on business in the name and style of M/s. Montari Overseas Ltd. A mandatory injunction was also sought for commanding the defendant to suitably change its corporate name so as to exclude therefrom the word Montari. An ad interim injunction in similar terms was also sought for. Reviewing the entire case law, IA No. 129/95 was disposed of in the following terms:

“The plaintiff's application is allowed. It is directed that the defendant shall remain restrained during the hearing of the suit from using the word Montari or any other word deceptively similar with or likely to cause confusion that Montari as a part of its corporate name. The operation of this injunction shall remain suspended for a period of two months enabling the defendant to take steps for change in the name of the company. The plaintiff shall through its authorised representative file an undertaking within a week to compensate the defendant for such loss or damage as it might suffer in the event of the plaintiff's suit being dismissed”.

8. The plaintiff has given up its claim for rendition of accounts. The plaintiff is accordingly entitled to a decree for permanent injunction as prayed for.

9. The suit of the plaintiff is accordingly decree and a decree for permanent injunction is passed in the following manner:

(1) For permanent injunction, restraining the defendant, by itself, its servants, its agents, representatives, dealers and all other persons on its behalf from using the trading style ‘RUPAK DEPARTMENTALSTORE’ in any manner and/or any other trading style consisting of the word “RUPAK” which is identical with and/or deceptively similar to the plaintiff's trading style consisting the word “ROOPAK”.

(2) For permanent injunction, restraining the defendant, by itself, its servants, its agents, representatives, dealers and any other persons on its behalf from passing off its goods under the trademark “RUPAK/ROOPAK” in any manner and/or any other trade mark which is identical with and/or deceptively similar to the plaintiff's reputed trade mark “ROOPAK” as and for the goods of the plaintiff.

(3) For deliver upon affidavit by the defendant to the plaintiff all the offending counter-feiting labels, brochure, cartons, stickers, wrappers, dies and other incriminating material bearing the offending trade mark “RUPAK/ROOPAK” and trading style of which “RUPAK” forms a principal part and are in possession and/or control of the defendant for destruction and/or erasure purposes.

10. The plaintiff shall also be entitled to cost. Decree sheet be prepared accordingly.

Suit decreed.