TaxTMI 
TaxTMI 
2001 (12) TMI 839
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....t two other localities of Ahmedabad one, at H.J. House, next to Maninagar, and two, at Nandanbaug Shopping Centre, Nava Vadaj. At the latter place the business is being run in the partnership of Radhaben, the wife of the plaintiff and her brother, Karsan Manji Bhutia. The plaintiff has expanded his business by incurring substantial expenditure on advertisement and by incorporating the word Muktajivan in all stationery materials, letter-heads, invoices, albums, hoardings, sign-boards etc. The defendant no.1 who was carrying on his similar business in the name and style of Gokul Studio is intending to commence business through his wife, the defendant no.2 by adopting the name and style of Muktajivan Colour Lab and Studio. On 12.5.1997 the passing off action was initiated by the plaintiff by filing a suit in the District Court of Ahmedabad seeking issuance of permanent preventive injunction against the defendants restraining them from passing off their business, services and goods as of and for the business, services and goods of the plaintiff. An application seeking an ad-interim injunction, on identical facts, was also filed. On the same day the learned Trial Judge passed an ex-p....
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....of Ahmedabad, at a distance of about 4 to 5 kms. from the place where the plaintiff was carrying on his business which was mainly in the city area, and therefore, a case for restraining the defendants from doing the business in the name and style of Muktajivan Colour Lab and Studio did not arise. The plaintiff preferred an appeal in the High Court. The High Court dismissed the appeal mainly for two reasons. Firstly, the High Court held that the defendants business had already come into existence on the date of the institution of the suit and therefore could not be restrained by issuance of a preventive injunction. Secondly, the High Court opined that other than the plaintiffs own business of Muktajivan Colour Lab and Studio at Narangpura locality of Ahmedabad which was his sole proprietary business he had no such interest in the business run at H.J. House Maninagar and Nandanbaug Shopping Centre, Nava Vadaj localities which were partnership concerns wherein the plaintiff himself was not a party. The High Court went on to observe that there were no pleadings to suggest that the other two businesses using Muktajivan as part of their trade names were so using the name under the aut....
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.... not to be limited to the date of the proceedings; the court will have regard to the way in which the business may be carried on in the future, and to its not being carried on precisely as carried on at the date of the proceedings. Where there is probability of confusion in business, an injunction will be granted even though the defendants adopted the name innocently. It will be useful to have a general view of certain statutory definitions as incorporated in the Trade Marks Act, 1999. The definition of trade mark is very wide and means, inter alia, a mark capable of being represented graphically and which is capable of distinguishing the goods or services of one person from those of others. Mark includes amongst other things name or word also. Name includes any abbreviation of a name. A person may sell his goods or deliver his services such as in case of a profession under a trading name or style. With the lapse of time such business or services associated with a person acquire a reputation or goodwill which becomes a property which is protected by courts. A competitor initiating sale of goods or services in the same name or by imitating that name results in injury to the bu....
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....ive of the plaintiffs goods so that the use in relation to any goods of the kind dealt in by the plaintiff of that mark or get up will be understood by the trade and the public in that country as meaning that the goods are the plaintiffs goods. It is in the nature of acquisition of a quasi-proprietary right to the exclusive use of the mark or get-up in relation to goods of that kind because of the plaintiff having used or made it known that the mark or get-up has relation to his goods. Such right is invaded by anyone using the same or some deceptively similar mark, get-up or name in relation to goods not of plaintiff. The three elements of passing off action are the reputation of goods, possibility of deception and likelihood of damages to the plaintiff. In our opinion, the same principle, which applies to trade mark, is applicable to trade name. In an action for passing off it is usual, rather essential, to seek an injunction temporary or ad-interim. The principles for the grant of such injunction are the same as in the case of any other action against injury complained of. The plaintiff must prove a prima facie case, availability of balance of convenience in his favour and his....
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....ce would have resulted in the matter of grant of relief to the plaintiff because the likelihood of injury to the plaintiff was writ large. It is difficult to subscribe to the logic adopted by the Trial Court, as also the High Court, behind reasoning that the defendants business was situated at a distance of 4 or 5 Kms. from the plaintiffs business and therefore the plaintiff could not have sought for an injunction. In a city a difference of 4 or 5 Kms. does not matter much. In the event of the plaintiff having acquired a goodwill as to the quality of services being rendered by him a resident of Ahmedabad city would not mind travelling a distance of a few kilometers for the purpose of availing a better quality of services. Once a case of passing off is made out the practice is generally to grant a prompt ex-parte injunction followed by appointment of local Commissioner, if necessary. In our opinion the trial court was fully justified in granting the exparte injunction to the plaintiff based on the material made available by him to the court. The Trial Court fell in error in vacating the injunction and similar error has crept in the order of the High Court. The reasons assigned by th....
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....intiff to the grant of ad-interim injunction. We are conscious of the law that this Court would not ordinarily interfere with the exercise of discretion in the matter of grant of temporary injunction by the High Court and the Trial Court and substitute its own discretion therefor except where the discretion has been shown to have been exercised arbitrarily or capriciously or perversely or where the order of the Court under scrutiny ignores the settled principles of law regulating grant or refusal of interlocutory injunction. An appeal against exercise of discretion is said to be an appeal on principle. Appellate court will not reassess the material and seek to reach a conclusion different from the one reached by the court below solely on the ground that if it had considered the matter at the trial stage it would have come to a contrary conclusion. If the discretion has been exercised by the trial court reasonably and in a judicial manner the fact that the appellate court would have taken a different view may not justify interference with the trial courts exercise of discretion [(see Wander Ltd. v. Antox India P.Ltd : 1990 (Supp) SCC 727 and N.R. Dongre v. Whirpool Corporation an....