Passing off injunction allowed where use of a well-known name created a prima facie likelihood of confusion and false association.

In a passing off action, interim injunction can be granted where the defendant's use of a well-known name is prima facie likely to misrepresent an association and deceive purchasers, even if the plaintiff does not manufacture the same goods. The Court applied the test of likelihood of confusion and injury to goodwill, noting that similarity need not be complete and that an unwary purchaser of average intelligence and imperfect recollection could be misled by the use of "Bata" in "Batafoam". The plaintiff therefore established a prima facie case for temporary protection, and the defendants were restrained from using the impugned name pending disposal of the suit.

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Issues: Whether the plaintiff made out a prima facie case for a temporary injunction in a passing off action against the use of the mark 'Batafoam', despite the defendants not dealing in the same goods as the plaintiff.

Analysis: A passing off action is preserved by section 27(2) of the Trade and Merchandise Marks Act, 1958, and is not confined to registered trade marks. The essential inquiry is whether the defendant's use of a name or mark amounts to misrepresentation likely to deceive or confuse prospective purchasers and injure the plaintiff's goodwill. The Court held that similarity need not be complete, and that the use of the well-known name 'Bata' as part of 'Batafoam' could create a deceptive impression, especially for the unwary purchaser of average intelligence and imperfect recollection. The fact that the plaintiff did not manufacture foam products did not defeat the claim at the interlocutory stage, because passing off may occur even where the plaintiff does not deal in the offending goods, if the defendant's use creates a false impression of association.

Conclusion: The plaintiff established a prima facie case for interim protection, and the defendants were restrained from using the name 'Bata' on their products, packages, advertisements, or in conjunction with other words pending disposal of the suit.

Ratio Decidendi: In a passing off action, a temporary injunction may be granted where the defendant's use of a well-known name is prima facie likely to create confusion or a false association, even if the plaintiff does not manufacture the same goods.

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