The plaintiff.:— M/s. Hindustan Radiators Company, Station Road, Jodhpur, a partnership concern, has filed this suit for permanent injunction against passing off and using its trading style and trade marks by M/s. Hindustan Radiators Limited, Model Town, Delhi, on the allegations that the plaintiff was carrying on business since 1959 and had been manufacturing about hundred types of radiators for use in various vehicles like buses, trucks, cars, jeeps, cranes and compressor etc. under the marks “HINDUSTAN RADIATORS” and with the initials “H.R”, short form of ‘Hindustan Radiator’ on the radiators manufactured by it and due to extensive long and continuous use the trading style ‘HINDUSTAN RADIATOR CO.’ and the trade mark ‘HINDUSTAN RADIATOR [H.R” known and associated with the excellent quality of radiators manufactured and sold and offered for sale by the plaintiff; that the plaintiff has since 1959 sold radiators approximately of the value of seven crores of rupees and their present annual sale was approximately fifty lakhs of rupees and the plaintiff's main market is in Delhi; that the plaintiff has been supplying “HINDUSTAN RADIATORS” to M/s. Mysore State Road Transport Corporation, Mohindra and Mohindra, Bombay, State Transport, Maharashtra, Kirloskar Pneumatic Company. Pune and several other leading concerns, and has also been exporting Hindustan Radiators outside India and has been taking part in exhibitions and has been awarded Udyog Patras; that the plaintiff has been advertising its radiators with its trade style and marks in various leading trade magazines and has spent approximately two lakhs of rupees on the advertisements and trade promotion and its present annual expense on advertisements is to the time of Rs. 30,000/-; that due to long continuous and extensive user of the trading style “HINDUSTAN RADIATOR CO.” they are known in the public as ‘Hindustan Radiator Wale’ and their radiators are asked for as ‘Hindustan Radiators or H.R Radiators’; that the plaintiff has applied for registration of trade marks “H.R” and “HINDUSTAN RADIATOR” in the Trade Marks Registry, New Delhi; that apart from Government and semi-government bodies, the purchasers and intending purchasers of plaintiff's Hindustan Radiator H.R radiators include illiterate persons, mechanics, drives as well; that about a fortnight before the filing of the suit, the plaintiff has come to note that the defendant had incorporated a company under the name “Hindustan Radiators Limited” with their registered office at Delhi and the main business thereof as evident from trading style and from the brochure issued by the defendant is of manufacture of radiators for cars, trucks, tractors etc. and the defendant is going to bring radiators on commercial scale into the market soon; that it has further come to the notice of the plaintiff from the brochure issued by the defendant that the defendant is also using and intend to use the trade mark. “H.R” as their mark in respect of their radiators; that the trading style of the defendant is exactly similar to that of the plaintiff and likewise the mark used by the defendant is also similar and same and the purchasers and intending purchasers would find it difficult to differentiate between the goods of the plaintiff from the goods of the defendant in view of the similarity in the name of the trading style and this would result in passing of the goods of the defendant as that of the plaintiff and to the detriment of the plaintiff and the public and the intending customers are likely to consider the goods of the defendant as that of the plaintiff: that even otherwise the public and persons in trade have started making enquiries from the plaintiff about the plaintiff being converted into a limited company under the Companies Act and the public is likely to invest and purchase the defendant's company's share on the assumption and belief and the plaintiffs have converted themselves into a limited company and as such the defendants have collected and are likely to collect share money on the goodwill, name and reputation of the plaintiff; that the defendant's trading style and the trade marks being similar, confusion between the business and the goods of the parties would cause irreparable loss of business, goodwill, and reputation of the plaintiff; that the plaintiff being well known in the radiators business, the defendant must be aware about the popularity, goodwill and name of the plaintiff and the adoption of the trading style “HINDUSTAN RADIATORS LIMITED” and the trade mark “HINDUSTAN RADIATOR/H R.” is not honest from the very beginning and is tainted and the defendant's intention do not seem to be honest as the defendant wants to trade upon the goodwill, name and reputation of the plaintiff which the plaintiff has built up during the last about 27 years and the conduct of the defendant is fraudulent; that the defendant has adopted the same trading style and similar trade mark to create deliberate confusion with the business and goods of the plaintiff and take unlawful advantage from the plaintiff's reputation, goodwill, name and longstanding; that the defendant is causing deception and confusion with the plaintiff's business and divert their customers and hence, the plaintiff is entitled to restrain the defendant from using the trading style “HINDUSTAN RADIATORS LIMITED” and trade mark “HINDUSTAN READATOR/H, R.” and hence, this suit for permanent injunction.
2. The defendant has contested the suit of the plaintiff, inter alia, on the ground that the plaintiff is guilty of mis-representation and suppression of material facts and the trading style of the plaintiff “HINDUSTAN RADIATORS COMPANY” is visually, phonetically and substantially different from that of the defendant and the plaintiff's have not been using “H.R” as the only trade mark but have also been using trade marks such as HRC, HAC and BRADCO; that the plaintiffs have no right or title in the name or trade mark because investigations made by the defendant have revealed that there are more than 3,000 units claiming to be manufacturers of radiators in India and at least ten of such units have their trade name that bears the words “Hindustan Radiators” and all these units have existed for the last ten to fifteen years and the plaintiff has not at any point of time objected to the use of the name “Hindustan Radiators” in case of these firms or units and as such the present suit of the plaintiff is malafide; that even otherwise letters “H.R” have been used even by Haryana Radiators Limited which shows, that the plaintiff has no exclusive right therein; that the plaintiff cannot claim any monopoly in the trade name “HINDUSTAN RADIATORS CO.” or trade mark “HINDUSTAN RADIATORS/H.R” in as such as ‘Hindustan is a common name and common property of the entire people of India and is a name of country and ‘Radiator’ is only descriptive term and as such the plaintiff is not entitled to any injunction prayed for. It may be mentioned here that it is disputed that the plaintiffs have been manufacturing radiators since the year 1959 but is admitted that the defendant was registered on 2nd August, 1985. It has also been urged that while the plaintiffs was functioning from Jodhpur, the defendant was functioning from Delhi and therefore, they have entirely different fields of their functioning and that any similarly in the trade name or the trade mark was purely coincidental and not intentional and as such it is prayed that the suit of the plaintiff be dismissed.
3. In this suit the plaintiff has filed I.A 1989/86 under order xxxix rules 1 & 2 read with section 151 of the code of civil procedure on the same allegations for grant of ad-interim injunction till the decision of the suit which has been contested by the defendant, inter alia, on the same grounds as the suit and it is this application which is sought to be disposed of by this order. I have heard the learned counsel for the plaintiff and the defendant and have gone through the file and after giving my considered thought to the matter before me. I have come to the following findings.
4. Before the plaintiff can be said to be entitled to ad-interim injunction it would be necessary for the plaintiff to establish that he has a prima facie case in his favour and the balance of convenience lies in the grant of ad-interim injunction so as to protect him otherwise irreparable injury would be caused to him. In order to prove its prima facie case the learned counsel for the plaintiff has drawn my attention to the fact that the plaintiff has been in this business since 1959 whereas the defendant had got itself incorporation in August, 1985. So far as the defendant's incorporation in August, 1985 is concerned, it is admitted in the written statement by the defendant. As regards the plaintiff being in this business, my attention has been drawn firstly to various purchase orders, photostat copies whereof have been filed by the plaintiff. Copies of Purchase order dated 15th July, 1959 of Mohindra & Mohindra Limited, purchase order dated 5th September, 1962 of Mysore State Road Transport Corporation, purchase order dated 11th March, 1963 of State Transport, Maharashtra purchase order dated 24th February, 1982 of Kirloskar Pneumatic Co. Ltd., letter dated 3rd December, 1983 of Rajasthan State Mines and Minerals Ltd., letter dated 30-1-1983 of Prashant Khosla Pneumatics Ltd., purchase order dated 30-4-1978 of Atlas Copco (India) Ltd., letter dated 7-1-1983 of J.K Satoh Agricultural Machines Ltd., letters dated 11-12-1984 & 15-6-1984 from Air Force Station, Jodhpur, purchase order dated 6-7-1984 of Plasser (India) Pvt. Ltd., letter dated 26-11-1984 of Hindustan Zinc Ltd., letter dated 7-9-1982 of K.C Khosla Compressors Ltd., purchase order dated 31-8-1978 of Rajasthan State Road Transport Corporation, purchase order dated 24-2-1982 of Kirloskar Pneumatic Co. Ltd., purchase order dated 25-9-1976 of Krishi Engines Limited, inspection voucher dated 15-2-1982 of HMT Limited, purchase order dated 15-2-1984 of Consolidated Pneumtic Tool Company (India) Ltd., purchase order dated 23-4-1984 of Chief Ordnance Officer, Controller of Defence Accounts, letter dated 12-6-1984 from Executive Engineer, Southern Railway, letter dated 18/31-12-1980 from Tata Engineering and Locomotive Company Ltd., letter dated 29-6-1985 from Martuti Udyog Limited, letter dated 21-11-1985 from ACMA, letter dated 4-6-1982 from Ashok Leyland Limited, letter dated 12-4-1985 from Holman-Climax, of order dated 10-7-1985 from Jyoti Limited, purchase order dated 25-10-1985 J.K Cement Works, letter dated 10-2-1986 from Hindustan Petroleum Corporation Limited, order dated 19-5-1975, from ONGC, Tel Bhavan, Dehra Dun, letter dated 16-12-1974 from ONGC, Ahmedabad, letter dated 19-10-1985 from High Explosives Factory, Kirkee, Poona, letter dated 10-10-1985 from Indian Oil Corporation Ltd., letter dated 28-7-1979 from Ingersoll-Rand (India) Limited., letter dated 19-9-1979 from U.P State Road Transport Corporation, letter from Directorate of Purchase & Stores of the Department of Atomic Energy, letter dated 7-9-1977 from the Premier Automobiles Limited, Inquiry letter dated 30-11-1979 from Bharat Aluminium Company Ltd., letter dated 24-5-1982 of Tata Chemicals Limited, letter dated 17-7-1981 from Gujarat Tractor Corporation Limited, letter dated 16-3-1982 from Oil India Limited, letter dated 22-2-1982 from Four Wheel Drives, Australia, letter dated 18-8-1983 from Karnataka State Road Transport Corporation and purchase order dated 16/21-8-1983 from the Association of State Road Transport Undertakings, New Delhi, are these documents to which my attention has been drawn by the learned counsel for the plaintiff which do go to show that the plaintiff has been in this business since 1959 and has been since then running the said business. Similarly my attention has been drawn to certificates of inspection dated 20th December, 1977 and 5th August, 1977 issued by the Export Inspection Agency of Government of India, Delhi, which go to show that the plaintiff has even been exporting its radiators. My attention has similarly been invited to copy or registration-cum-membership certificate purported to have been issued by Engineering Export Promotion Council to the plaintiff showing that the plaintiff has been established since January, 1960. This also shows that the plaintiff has been registered as a factory also since 25th July, 1961 by the Director of Industries, Rajasthan, Jaipur. Similarly photostat copy of registration and licence to work as a factory issued by the State of Rajasthan to the plaintiff has also been filed which shows that amended licence was issued on 16th December, 1977 to the plaintiff. There is certificate of registration on form ST-4 which is valid from 13th August 1959 in favour of the plaintiff. Letter dated 14th August, 1964 from National Small Industries Corporation of the Government of India shows that the plaintiff was enlisted with the said Corporation as well as for supply of automobiles radiators and engine radiators etc. Similarly is the letter dated 5th May, 1961 from Small Industries Service Institute of Government of India, enlisting the plaintiff for supply of radiators for cars, trucks and tractors for participation in the Central Government Stores Purchase Programme. The plaintiff has likewise placed on record photostat copy of licence to manufacture copper and copper alloy tubes in the year 1962 by the Central Excise. Then there is copy of certificate of registration of the plaintiff as a partnership form with the Registrar of Firms, Rajasthan, Jaipur, issued on 6th August, 1962. A photstat copy of the partnership deed dated 1st April, 1973 also has been filed by the plaintiff. Copy of licence dated 30th December, 1961 purported to have been issued by the Chief Controller of Imports & Exports of the Government of India, to the plaintiff for export of its goods from India has also been filed. There are other certificates of inspection purported to have been issued by the Export Inspection Agency, Delhi, to the plaintiff on 9th October, 1972, 5th August, 1977, 10th November, 1978 and 20th October, 1977, copies whereof have been filed by the plaintiff. All these documents further go to confirm that the plaintiff has been in this business since 1959. Thus, prima facie, the plaintiff has established that the plaintiff has been in existence since 1959 as against defendant which was incorporated in August, 1985.
5. My attention has further been invited to the sales statements of the plaintiff for the period 16th November, 1963 to 31st December, 1985 which prima facie goes to show that net sales of the plaintiff during this period have been of the amount of Rs. 7,38,34,829/- which by itself is indicative of the fact that the plaintiff must have acquired distinctiveness as manufactures and suppliers of various types of radiators under its trade name and its trade mark “HINDUSTAN RADITORS/H.R” This further goes to show that the trade name “Hindustan Radiators Co.” has become distinctive of plaintiff's business and consequently user of trade name “HINDUSTAN RADIATORS LIMITED” by the defendant was likely or calculated to deceive or cause confusion and injury to the business reputation of the plaintiff. The plaintiff has been in business for the last more that 27 years as against the defendant who was incorporated in August, 1985. My attention on behalf of the plaintiff has also been invited to various pamphlets, brochures and souvenirs issued by the plaintiff for advertising its products which would show that a good amount of money must have been by now spent by the plaintiff on advertising its goods. Here is a case in which prima facie the plaintiff has established that the plaintiff has been in the business of manufacturing and sale of radiators since 1959 and that the plaintiff has been even exporting its products in foreign countries and has had sales over rupees seven crores and has spent a considerable amount on advertisements of its products.
6. As against this, the learned counsel for the defendant has drawn my attention to four documents which have been placed on record by the defendant the first of which is a letter dated 18th January, 1986 from Hindustan Radiators Corporation, Sanjay Gandhi Chowk, G.T Road, Panipat (Haryana to the defendant which brings out that the former firm is engaged in major repair work of radiators and had been serving the replacement market only and that they were not in a position to supply Maruti radiators. The other document is a letter dated 13th January, 1986 from Hindustan Auto Radiators, G.T Karnal Road, Delhi to the defendant giving their quotation for water cooled radiators for HMT tractors. The third letter is dated 7th February, 1986 from Hindustan Radiators Workshop introducing itself to the defendant with an offer of spare capacity for manufacturing of radiators. There is another dated 10th May, 1986 from Haryana Radiators Limited, Faridabad (Haryana) addressed to M/s. Asbestos & Belting Co. quoting their rates of Ford radiator. These letters do not in any manner undermine the case of the plaintiff. The submission of the learned counsel for the defendant in this behalf is that these letters have been produced on record to show that there are other firms with practically the same name and even initials in the same activity, which are functioning and the plaintiff has not brought any case against them or has not challenged their activities and consequently this suit is mala fide in so far as the plaintiff has chosen to prosecute only the defendant. I do not think this argument would be available to the learned counsel for the defendant, inasmuch as the plaintiff has in this behalf stated in his replication to preliminary para 2 of the written statement that “the plaintiffs are not aware about these business nor have the plaintiffs seen any advertisement issued in any recognised paper in respect of the above said units as alleged. It is denied that four units are there for last 25 years. The plaintiffs will take action against those persons who are openly using the trading style which is deceptively similar to those of the plaintiff's”. The plaintiff has further denied categorically that the trading style of the plaintiff has become common trade property.
7. It has further been submitted by the learned counsel for the defendant that the plaintiff is functioning at Jodhpur and Rajasthan whereas the defendant is to function from Delhi and consequently the right of the plaintiff would not be infringed by the defendant. However, keeping in view copies of various purchase orders placed on record, it would be difficult to accept that the activity of the plaintiff is limited only to Jodhpur or Rajasthan, rather from perusal thereof it can be gathered that the plaintiff has its customers throughout India and even abroad and consequently it can be safely concluded that the sphere of activity of the plaintiff is also practically the same as that of the defendant. It is not disputed before me that the nature of manufacturing activity of the defendant is going to be the same as is that of the plaintiff and even otherwise a reference in this context may be made to a pemphlet purported to have been issued by the defendant in connection with its public issue and the share application form which have been placed on record by the plaintiff which by themselves are enough to corroborate that the nature of manufacturing activity of the defendant is going to be the same as that of the plaintiff. The fact that the plaintiff has received some awards also is established prima facie by the pamphlets filed by the plaintiff in this behalf. The names of two firms are almost identical and so is the name of their products and consequently, there is bound to be a confusion in the mind of the people as regards the origin of the goods and the submission of the learned counsel for the plaintiff that many an uneducated, illiterate and wary drives, who are their would be customer, would likely be deceived. In these circumstances it is safe and logical to prima facie conclude that the extensive, long and continuous user by the plaintiff of their trading style “HINDUSTAN RADIATORS CO.” and the trade mark “HINDUSTAN RADIATORS/H.R” have come to be well known and have come to be associated in the public mind with their excellent quality of radiators manufactured by the plaintiff. The mere fact that the plaintiff has filed application for registration of the trade mark in the Trade Marks Registry, New Delhi, only recently would not go against the claim of the plaintiff. The plaintiff categorically stated that it was a fortnight prior to the filing of the suit that it came to notice of the plaintiff that defendant had recently incorporated a company under the name “HINDUSTAN RADIATORS LIMITED” and consequently it also cannot be said that the action of the plaintiff is belated. Trading style and the trade mark of the defendant are similar to that of the plaintiff with a very minute difference and the said difference cannot be brought out in the mind of average prospective purchasers. In view of the brochure issued by the defendant, it is not unlikely that many a people have started making inquiries from the plaintiff about their firm being converted into a limited company which would indicate that the defendant are likely to trade upon the goodwill, name and reputation of the plaintiff which would cause irreparable loss of business, goodwill and reputation of the plaintiff and would cause deception and confusion in the public mind as regards the origin of goods likely to be produced by the defendant. There is nothing which has been brought out to my notice by the learned counsel for the defendant which goes to suggest that the plaintiff is guilty of mis-representation or suppression of material facts. There is nothing to suggest that the plaintiff has relinquished its exclusive title in the trading style or trade mark. The mere fact that the defendant has got its name approved from the Registrar of Companies would not go against the claim of the plaintiff in nay manner whatsoever. In an order to establish a prima facie case for grant of ad interim injunction, it is incumbent upon the plaintiff to show (a) that plaintiff has been using its trading style and trade mark for quite a long period and continuously whereas the defendant has entered into the said field only recently, (b) that there has not been much delay in the filing of the suit for injunction by the plaintiff, (c) that the goods of the plaintiff have acquired a distinctiveness and are associated in the mind of the general public as goods of the plaintiff, (d) that nature of activity of the plaintiff and the defendant is same or similar, (e) that the goods of the parties to which, the trade mark of the plaintiff is associated are same or similar, (f) that the user of the said mark or trade name by the defendant is likely to deceive and cause confusion in the public mind and injury to the business reputation of the plaintiff, (g) that the sphere of activity and the market of consumption of goods of the parties are the same, (h) that the customers of the plaintiff, inter alia, include uneducated, illiterate and wary customers who are capable of being deceived or confused or misled. Unless plaintiff's trading style or trade mark has become common property, it would be no defence for the defendant that there are some other concerns who were also using similar trading style or similar trade mark; as to whether it has become common property is a question of fact in each case. A perusal of my discussion above would show that the plaintiff in the instant case has prima facie established all these ingredients which further leads me to the conclusion that plaintiff has established a prima facie case for grant of ad interim injunction in the instant matter.
8. Once a prima facie case is established, balance of convenience would follow. Even otherwise the question of balance of convenience would arise only when the parties are practically on the same level and as such their rights are about equal. However, where, as in the case in hand, the plaintiff's position is infinitely superior to that of the defendant who intends to use the trade mark and trading style of the plaintiff and consequently, there is no difficulty to hold that balance of convenience lies in the grant of ad interim injunction as in the instant case inasmuch as the case of the plaintiff is not marginal but a clearcut case and consequently, balance of convenience is in favour of grant of ad interim injunction prayed for.
9. Coming to the question of irreparable injury, it needs to be mentioned here that where the plaintiff has established a prima facie case and the balance of convenience is in favour of grant of ad interim injunction the Court can assume that irreparable injury would necessarily follow if ad interim injunction prayed for is not granted. The irreparable injury in the instant case would be the likely confusion that may be caused if the defendant is allowed to use the mark which is prima facie mark of the plaintiff-petitioner., Even otherwise it will take quite some time before this suit is decided and if the respondent is not restrained by means of an ad interim injunction they would start manufacturing their radiators under same and similar name as that of the plaintiff-petitioner and would start marking their goods with the offending mark and in course of time it might ultimately be held that the defendant-respondent had become common or concurrent user of the said trade mark. Thus, the likelihood of confusion being caused and likelihood of the plea of common or concurrent user being raised at a late stage would be the irreparable injury to the plaintiff-petitioner. Even otherwise injunction would not be refused unless the supposed consequences of deception are remote, speculative and improbable. Once the plaintiff has established that he has got a prima facie case in respect of same and similar goods, he would be prima facie entitled to ad interim injunction and heavy burden would lie granted ad interim injunction. The plaintiff, in these circumstances, is entitled to the ad interim injunction prayer for.
10. No other point has been urged before me.
11. It may be mentioned here that my discussions above are solely for the purposes of disposal f this I.A and have no bearing on the merits of the case which would be decided on the evidence which may be led before the Court.
12. In view of my discussion and findings above, I.A 1989/86 is allowed and the defendant, their agents, servants, stockists and all other persons on their behalf are restrained during the pendency of the suit to use the trading style ‘HINDUSTAN RADIATORS LIMITED’ and from using the mark ‘HINDUSTAN RADIATORS/H.R’ in respect of their radiators in any manner, whatsoever or to pass off their business and goods as business and goods of the plaintiff.
M.B.L Petition allowed