TaxTMI 
TaxTMI 
1977 (8) TMI 176
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.... invaded and in order to' prevent confusion among the public at large 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 busines....
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....onfusion is likely to be created amongst those who are dealing with the plaintiff Company and the public at large and the consumers; and (2) whether the plaintiff-Company has a legal 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 m....
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.... user of fancy or invented names. The word Uatul" used by the respondent plainitiff Company in its name is a fancy or invented word. So also the word "Simatul" used by the appellant-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 wit....
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....ful person would notice the distinction or difference. As we observed earlier, we cannot apply the test of a meticulous or a methodical person who notes down the names in the diary and makes a comparison every time he enters into dealings 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....
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.... a name similar to that of an existing Company. The next question which may be examined in this context is as to how the defendant-Company came to strike upon the word "Simatul". Was it by chance, was it by misfortune, was it by accident? 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 gan....
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....the founder of the firm. Now, the very fact that an explanation regarding the coining of the fancy name is -given in a report of this nature gives rise to some suspicion in the background of the comment made by the plaintiff that the defendant-Company was creating an alibi 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....
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....nd innocuous-looking facial make-up which is too naive to carry conviction. We may also point out that the plaintiff-Company had addressed a communication dated January 31, 1974 to the defendant-Company in this connection by Registered Post. The said communication, Ex. 25 was in the 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 creati....
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....e word 'Simatul' or a similar word is used. That the plaintiff-Company can claim an injunction restraining the defendant-Company from carrying on its business in such a deceptively similar name can scarcely be disputed in view of decisions rendered by English Courts going back 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 Cey....
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.... -evidence even as regards loss of customers to the plaintiff though there was evidence to show that persons got confused and thought that the defendant's business might be connected with the plaintiff's business in London. The Court upheld the contention of the plaintiff that the defendant was not entitled to 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 ....
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....ave a material bearing on the present case. In that case the Manchester Brewery Company was the plaintiff. The plaintiff company had carried on business under that name for years. The defendant company bought an old business called "The North Cheshire Brewery Ltd." and then got themselves incorporated and registered under 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 senten....
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....such name is calculated to deceive in the Sense that a person desiring to be a customer of the plaintiff is induced thereby to become a customer of the defendant. And they say that there can be no deception here because they are Wholesale People while the plaintiff is a retailer, it is true that they have the fullest Possible power under the memorandum and 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 thos....