TaxTMI 
TaxTMI 
1985 (11) TMI 239
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....oods and some person having the right, either as proprietor or as registered user, to use the mark whether with or without any indication of the identity of that person, and includes a certification trade mark registered as such under the provisions of Chap. VIII;" A 'mark' is also defined in the Act in Section 2(j) which reads as under: (j) "mark" includes a device, brand, heading, label, ticket, name, signature, word, letter of numeral or any combination thereof; A "name" is defined in Section 2(k) which reads as under: (k) "name" includes any abbreviation of a name. 3. It is not asserted by the Plaintiff in this suit that Super flame is a "registered trade mark". SUPERFLAME not being a registered trade mark, the instant suit cannot be an "infringement" action, and it is conceded to be a "passing off action. 4. A distinction between an infringement action and a passing off action is statutory by virtue of the provisions of Section 27 of the Act. Section 27(1) of the Act prohibits institution of any proceedings to prevent or to recover damages for infringement of an unregistered trade mark. 5. Sub-secti....
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....putation and goodwill in relation to gas appliance and that SUPERFLAME connotes the products of the Plaintiff exclusively. It is also stated that SUPERFLAME has acquired a secondary signification in the trade and amongst the parties with the public and that there is extensive advertisement of SUPERFLAME in various media such as radio, television, newspapers, magazines, public hoardings etc. It is also asserted in the plaint that use of SUPERFLAME by any rival trader as a part of its name or in relation to its goods is likely to lead to confusion and deception and result in passing off such traders' business and goods as the business and goods of the plaintiff. 11. It is asserted that Blue Superflame Industries, the Defendant 1, and Ganga Ram, Defendant 2, who is alleged to be a partner of Defendant 1/and/or a sole proprietor have recently started manufacturing and selling gas appliances under the trade mark and/or house mark SUPERFLAME and that they have also kept Blue Superflame Industries as their trading style of which the word SUPERFLAME is an essential key and conspicuous portion and has also placed SUPERFLAME at various places upon its goods and/are advertising such good....
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....e of gas appliances and is common the trade of gas appliances and that the word SUPERFLAME is in common use for as appliances, words being used on appliances being SUNFLAME, HOT FLAME, FLAMELINE etc. and that SUPER and HOT are distinct from each other. It is asserted that the plaintiff's trade name Globe Super Parts, and the Defendant's trade name Blue superflame Industries are absolutely different and distinctive and one cannot be confused with the other. It is also asserted that superflame comprises of two commonly known English words and monopoly or exclusive rights cannot be claimed over it; that the word SUPER is laudatory and is (sic) "incapable of distinguishing". It is also that the Plaintiff did not have any right much less exclusive right to use the words SUPER and FLAME. The objection is also taken in the preliminary objections to the valuation the suit, which is stated to be not an accordance with the Suits Valuation Act and that inadequate Court-fees has been paid. It is stated the suit is based on a false agreement of a connection between Ganga Ram Verma and Defendant 1; that the suit has been filed because of trade rivalry and that the suit suffers ....
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....ause any injury to the plaintiff's business or reputation. It is asserted that the Defendants' goods which are marketed under the trade mark HOT FLAME enjoy a good demand and are of superior and standard quality: that not a single incident of confusion has been recorded. It is denied that use of SUPERFLAME, as a part of trade name, is likely to lead to passing of Defendants' goods as those of the plaintiff. It is denied that the goods of Defendants have been advertised under the trade mark BLUE SUPERFLAME INDUSTRIES. The suit is described by the Defendants as false, frivolous, vexatious and misconceived, 15. In the replication, the pleas taken in the written statement are traversed and it is specifically, asserted that the trade mark SUPERFLAME has been incorporated as an integral and key part of the firm name of the Defendant. It is asserted that the Plaintiff is not seeking a monopoly in the use of the word FLAME that there could be no objections to Defendants' use of the word HOT FLAME as a part of its firm name such as Blue Hot Flame Industries. But the Defendant's use of SUPERFLAME in the firm name shows the fraudulent and mala fide state of mind. It is fu....
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....is competent to institute the suit, sign and verify the plaint on behalf of Super Parts Pvt. Ltd., Plaintiff (sic) 21. Much argument has been addressed on this issue and the arguments have been divided into two parts by the Defendant. 22. The Defendant relies upon AIR 197l SC 198 Saheb Ram v. Financial Comm(sic) and says that a legal plea can be raised at any time and that no formal issue regarding thereto need to be framed. This authority is cited in support of a contention which has been raised that the suit is not maintainable. 23. The reason why the above contention has been made is because the Plaintiff was described thus: "Globe Super Parts (Sole proprietor Super Parts Pvt. Ltd.), 17/1, Mathura Road, Faridabad (Haryana)". Because of the fact that the name Super Parts Pvt. Ltd., has given within brackets, it is urged by Mr. Aggarwal that the real Plaintiff is not Super Parts Pvt. Ltd., but Globe Super Parts. 24. Mr. Aggarwal urges the above contention because evidence has been recorded in this case to the effect, that Globe Super Parts was the partnership concern. After a while the firm Globe Super Parts was reconstituted, and at the time of reconstitution Super ....
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....ied on today by Globe Super Parts, a partnership concern which was in fact a predecessor of Super Parts Pvt. Ltd. Super Parts Pvt. Ltd continues to carry on the same activities as Globe Super Parts as Globe Super Parts had acquired a name and reputation over the years with people who used to trade with them. All the letter heads, which are to be found on record of this case relating to Super Parts Pvt. Ltd., contain both the names. Globe Super Parts and Super Parts Pvt. Ltd. Super Parts Pvt. Ltd. have, therefore, continued to hold out and rely upon the connection between Super Parts Pvt. Ltd., and Globe Super Parts, which is historical qua them. 26. The meaning and effect of 'Brackets' in the English language, are found in "Webster International Dictionary" at Page 265 which says that what is placed within the Brackets is "put in the same class", or in other words what is contained within the Brackets is equated to the word that proceeds the Brackets. In "The Family Word Finder" Bracket is stated to mean "to group" and in "Shorter Oxford Dictionary" it is stated to mean "to mention together as equal". 27. I, ther....
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....ut the trade of manufacture of gas appliances when he started that business. 30. That there is a connection between Defendant 1, and Defendant 2 is also established by the deposition of D.W. 2, a dealer of goods of Defendant No. 1. He admitted that Ganga Ram Verma, visits him in connection with the work of Defendant 1. 31. In view of the depositions of D.W. 1 Sri Kant Verma and D.W. 2 Mohd. Abdulla. I am satisfied that there is a connection between the work being done by Defendant 1 and Defendant No. 2. Defendant 2 has, as deposed to by Mohd. Abdulla D.W. 2, been actually riding the business of Defendant 1. In' the circumstances, keeping in view the depositions of the two witnesses D.W. 1 and D.W. 2, I am of the view that there is no misjoinder of parties in this case, and the issue is decided accordingly. Issue No. 3 Whether the Plaintiff is the owner of the trade mark/house mark 'Superflame' in respect of gas appliances? 32. At the outset it must be ascertained whether there is something recognised in law, as a "house mark". Trade mark is a recognised concept in law. We have the Trade and Merchandise Marks Act, 1958 which gives statutory sanction to tr....
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....icles by the registered companies but what the Comptroller General found was that the word "Radiation" was used as a trade mark. He said that the mark had become in effect the House Mark of the whole group of companies formed by the applicant company and also associated companies. There is no evidence in the instant case, of there being a group of companies controlled by any particular company which would lead to a finding that the word SUPERFLAME had become a house mark. In any case, the order in (1930) 47 RPC 37 is not an order of Court and it is not possible for me to say on the basis of this one single order that some legal recognition needs to be given, the concept of the House mark. 34. Mr. Anand also refers to an order of a Division Bench of this Court in AIR 1985 Delhi 210: B.K. Engineering Co. v. U.B.H.I. Enterprises Ludhiana. This was an order passed' on an interlocutory application without recording any evidence. A perusal of the judgment shows that the learned Judges did not refer to (1930) 47 RPC 37, or attempt to define what a House Mark meant if it did connote something in law. They appear to have assumed that the contention of Mr. N.K. Anand (who appe....
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....e prior user of it. There are however, certain pre-conditions attached to exclusive appropriation of words or names. These pre-conditions are to be found in the law laid down by various judgments. The pre-conditions are because some names are common, and most words are part of the language. The words which are of common usage; and the words, which are uncommon "coined" or "Fancy words", are treated differently, as coined words or fancy words are not part of language. 41. One of the earliest cases to decide that there can be exclusive appropriation of a name/word is a case decided by the House of Lords on 13th December, 1877 reported as (1877) 3 AC 376; "Singer" Machine Manufacturers v. William Newton Wilson. This case set at rest a controversy which existed amongst the lawyers that a 'name' cannot be subject-matter of exclusive appropriation by any person. The facts of the case were that in 1850 Mr. I.M. Singer of New Jersey, USA began the business which was thereafter carried on by the Singer machines manufacturers, of manufacture sewing machines of various kinds, of different constructions. From time to time, he had taken partners into the c....
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....t simply that the machines were designated as of the Appellants manufacture, constructed in one of the several forms which they from time to time adopt; that they have spent £ 60,000 and upwards in advertising their machines as Singer or Singer's machines, and they have become known as such throughout the world, and the name has become, and is a trade mark of the plaintiffs; observed that "if these allegations are true, if the term Singer or Singer's machine denotes to the mind of the public or of those likely to purchase such articles, not a particular type, or shape and arrangement of parts of the machine, but a machine the manufacture of the particular person or firm; and if the Defendant whose name is not Singer, represents his machines as being Singer or Singer's machines, there is at least a case which calls upon the Defendant to show some reasons which would justify him in thus making a use of a name which is not his own, but which is the name, and is known to indicate the manufacture, of the plaintiffs. The Lord Chancellor, in view of the facts of the case, and from what had transpired in the Courts below said that he "has no option but to direct....
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.... the name of various animals like Yak, Llama, Buffalo, Crocodile etc. What Plaintiff Reddaway asserted was that Banham was their one time employee and that he had started selling the beltings under the name 'Camel Hair"; Reddaway also asserted that they were entitled to stop others, like Defendants Banham, from using the word 'Camel Hair with respect to the beltings manufactured by them. 48. This case was decided by the House of Lords on or about 26th March, 1896. The case was started on 3rd May, 1893 when Frank Reddaway and F. Reddaway & Co. Ltd., commenced the suit in the Manchester District Registry of the Queen's Bench Division against George Banham and George Banham & Co. Ltd., for an injunction to restrain the Defendants from infringing certain trade marks and from continuing to use the word 'Camel in such a manner as to pass off their goods as and for the plaintiff's goods. It was asserted that the plaintiffs had, during the course of trade, sold very large quantities of beltings as 'camel beltings' and that the word 'Camel' appeared upon, or was attached to their beltings as 'camel beltings'. In England and abroad the word &....
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....words of a language can be exclusively appropriated to a particular manufacturer as they had acquired a special meaning as denoting the goods of a particular manufacturer/ trader. 51. Lord Herschell also dealt with "coined" words, that did not have any meaning in the language; and at page 228 line 19, said that "words never in use before, and meaningless except as indicating by whom the goods in connection with which it is used were made, there could be no conceivable legitimate use of it by another person". Thus the "coined" "created", "Fancy", or "new" words which were not in use in any language before, and which did not have any meaning in the ordinary language, us evidenced by their absence in authoritative and standard language dictionaries, were the exclusive property of the person who first "coined", or created them and adopted them for use, and used it in connection with any article the only reason why a hitherto meaningless word would be used by another in connection with his activities would be to deceive the public, that the letters article, thing or goods or the articles, thing or goods of the former....
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....the principle that what is protected is what has originated from the author (1964) 1 All ER 465 Ladbroke football, relying upon 1894 AC 335. What originates from the author as a result of exercise of his skill and labour, is his "expression" which is protected by the law of copyright The "skill and labour" does not depend upon the time taken by the author as greater is the skill of the author less will be the time taken what would be relevant would be whether what has originated from the author is new, or distinctive, even a successful adaptation from another language. 54. As regards cases in which names of books have been protected, a reference can be made to Weldon v. Dicks (1878) 10 Ch. D 247, at 260 and 264; : W.H. Allen & Co. v. Brown Watson Ltd., 1965 RPC 191 at 194; Mathieson v. Sir Issac Pitman & Sons (1930) 47 RPC 541. Warner Brothers Pictures Corpn. v. Majestic Pictures Corpn, 70 Federal Reports (2nd)310. 55. In the Mathieson case (1930) 47 RPC 541, it was held at page 550 that secondary meaning in connection with names/titles of the books must connote that in the market where such books are purchased, and among the member of the public who were buye....
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....significance. It is only to be seen whether the claimant of it, applied his skill and expended labour upon its creation/adaptation. Very little amount of skill, and very little amount of labour is sufficient for this purpose. 57. There is yet another case to be noted. This is the "Shredded Wheat" case decided by the Privy Council, reported as 57 RPC 137. This case is an unusual case. Canadian Shredded Wheat Co. Ltd. v. Kellogg Co. of Canada LD and Solomon Rassin, carrying on business under the name Bassin's Cut-Rate Stores. 58. The observations at page 149 establish that there was litigation between National Biscuit Company of America and Kellogg Company, not only in England and Canada but also in the United States of America. In the USA the National Biscuit Company had sought to restrain the Kellogg Company from using the word "Shredded Wheat" in connection with their goods. It is noted in 55 RPC 125 at 149 that initially the Company failed before the District Court of Delaware, and on appeal US Circuit Court of Appeals for the third circuit, the decree was affirmed, Subsequently on re-arguments before the same Judges of the Circuit Court of Appeals, that....
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....aments were baked, and the result and product called 'Shredded Wheat'. Shredded Wheat was thus an invented description for a product which did not exist before. In fact Lord Russel of Killowen at 138 observes "the new product was called and was known by the name of shredded wheat. Although the process covered by patent No. 52,428 may be strictly a mashing rather than a shredding process Having seen the "shredded wheat" my self. I would say the apt description would be wheat "filaments biscuit". Not shredded wheat biscuit. A shredded thing is not uniform or smooth. I filament is. A wire is a filament, not a shred. 64. To me it appears that there is conflict of judicial opinion on the matter of product of this patented process, between the Courts of America and the Courts in England. Lord Russel of Killowen himself recognised the process was one of mashing rather than shredding. I am, therefore, unable accept that what is mashed, in fact, can be regarded as shredded in law, and I would prefer to sty that filamented wheat biscuits would not be shredded wheat biscuit, that it was open to the inventor to give a "coined" name to the product bei....
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....amply proved that it was only the licencees of the inventor - the Plaintiff co. who has exclusively sold "shredded wheat" biscuits during 1905 to 1914, in Canada and thus the word "Shredded wheat" had acquired secondary significance as the food of the Plaintiff in Canada. 66. For the aforesaid reasons, I prefer to follow the case of Reddaway v. Banham (1896) 13 RPC 218 (HL) rather than the Shredded wheat Case (57 RPC 137). 67. In the light of what is stated above, we have to see what is superflame. 68. Is super flame a which is in common place used in the English language, or is it a meaningless word? 69. In order to come to a conclusion as to what is superflame one has to first know about flame. 70. A flame is that which comes into existence when any combustible material gets ignited due to self combustion, or is ignited by spark or a small flame. The type flame which comes into existence as a physical phenomenon upon any combustible matter being ignited, depends upon the combustible material that is ignited. Thus, the flames of burning wood, coal, coke, liquid paraffin (Kerosene oil), combustible gases are different in their characteristic coloration .As ....
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.... 73. What is worthy of note is that the hottest flame is created when the gas to air in ratio is maintained as one part gas to three parts air, It is interesting to note as is stated at page 398, that burners which are used in gas cookers operate on the principles of Bunsen burner, or of its derivatives. 74. The illustration in the Encyclopedia of Science Invention also indicates that when gas is burned by itself, without being mixed with any air then the flame (which is termed as "defusion flame") is yellow coloured, and when the gas is burned after being aerated, that is mixed with air, the flame is a blue flame. 75. In Encyclopedia Britannica, 1969 Edition, Vol. IX at page 415, it is mentioned that "in a flame of coal gas and air of optimum composition, the temperature may be as high as 2,000°c. 76. The Encyclopedia Britannica 1969 also shows the design of burners used in cookers/ cooking ranges. The explanation of the burner design, which is illustrated at page 415 in the said Volume of Encyclopedia Britannica, indicates that the burners illustrated is so designed that safety of the person using the burners is ensured. The illustration of the burner and th....
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....nto the burner body design which is to be found in 'Sanyo' gas cooker. This is of course, the cooker manufactured in Japan but with a slight effort may be available so persons who are concerned with such an investigation. From what is stated in the Encyclopedia Britannica, it appears to me that the venturi provided in the gas burner bodies is a good safety measure, it needs to be incorporated in all gas burner designs so as to ensure safety of the consumers. 78. The colours of the flames of various combustible materials would be yellow, red or blue. The yellow coloured flame being of the lowest temperature, and the blue coloured flame having highest temperature. 79. Thus, existence of yellow flame, red flame or blue flame are matters of common knowledge. The characteristics and temperatures of different coloured flames can be found in any adequate illustrated scientific text or reference books. 80. Reference to the standard dictionaries of English language, like Chambers, Shorter Oxford, Webster International, etc., would show that there is no word superflame therein. It is not found either in that part of the dictionary where the word SUPER occurs or in that part of the....
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....f it/owner of it as the single word or not. If the author uses the word in question as a single word, I am of the view that it is not permissible to break up that single word into its component parts. I am further of the view that it is not permissible, after the word has been broken up into its, component parts to say that it consists of either two or more words, which are common language words. This is so because what has to be seen in Trade Mark Law is a "connection in the course of trade", and in the copyright laws, what one is concerned is to determine whether the person who has created the new fancy or invented word combination has expended his skill and his labour upon the creation of the word combination. Any person who is desirous of identifying himself with a particular word, which he has created, does so only for the purposes of establishing the sole connection with the article to which it is applied. The skill of the person who creates a new word lies in making the word so simple, that the simplest of those, who would be interested in procuring the articles to which that word is applied, or those interested in purchasing the book to which the word/name has-bee....
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....by the Respondents. The Division Bench approved the statement in ILR (1976) Delhi 278to the effect; "a trader acquires a right of property in a distinctive mark merely by using it upon or in connection with his goods irrespective of the length of such user and the extent of his trade. The trader who adopts such a mark is entitled to protection directly, the article having assumed a vendible character is launched upon the market. The registration under the statute does not confer any new right to the Mark, claimed or greater right than what already existed at common law and at equity without registration". The single Judge of this Court had adopted, what is stated above, from a judgment of the Bombay High Court reported as AIR 1965 Bom 35; Consolidated Foods Corporation v. Brandan & Co. Pvt Ltd. I may, however add that the length of the user is relevant only when it is to be seen whether secondary significance has been acquired by a common language word. 90. As to the duration of prior use, which is required to acquire the exclusive right to the same, Mr. Anand referred to 1967 RPC 589; Standar v. Reay. In that case, the matter in question was who used the words "Mr.....
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....ed with the prior user of it 93. As far as question of identification of same/word SUPERFLAME with the Plaintiff and its prior use by the plaintiff, the evidence on record bears out the contention that the same/mark Superflame had acquired a connection in the course of trade with the goods manufactured by the plaintiff, by virtue of its prior use and publicity and public association Rahul Rai as PW 1 has deposed to the effect that in the market, the word superflame denotes the product of Super Parts Pvt. Ltd., the plaintiff. Even the witnesses of the Defendants have said, particularly Defendant No. 1, as DW 1 that in the market place, no (sic) else other than the plaintiff, is using the word superflame in connection with the gas appliances. Defendant No. 1 also admitted that (sic) which have been got published the plaintiffs, highlight the word Superflame, (sic) that he has never seen the (sic) mark/word Superflame on any goods (sic) to any person other than the plaintiff. He also stated that if anybody wanted to buy the goods of the plaintiff, he would ask for Superflame. 94. P.W. 2 Akhil Kumar Sharma has deposed "On the products of Globe Super Parts the words "Superfl....
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.... descriptive word and is incapable of becoming distinctive of the plaintiffs. He says that the word SUPPERFLAME is a combination of two common English language words, namely SUPER and FLAME. He states that the word SUPER is laudatory, adjective and the word FLAME is descriptive of a thing which is inter linked with the stoves. 101. As regards the first part of the contention that the word SUPERFLAME cannot become distinctive of the plaintiffs' goods as the word is descriptive, Mr. Anand for the plaintiffs' relies upon 126 RPC 854 at 857 L.20; it was held that "whether a word is or is capable of becoming distinctive of the goods of a particular maker is a question of fact, and is not determined by its being or not being descriptive. The law has never refused to recognise that this is the case, or to give protection to descriptive Trade Marks when once duly established in fact, although, except in the case of old marks they refused registration, and left the owners to obtain protection in another form of action. This is now changed, and under the provisions of the present Act the Court clearly has power to allow descriptive words to be registered, if a case on the merit....
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....r providing heat in cookers are usually these which give out a blue flame. This of course depends upon whether or (sic) the burners of the cookers are properly designed, to ensure three parts air and (sic) part gas mixture before the inflammable gases ignited. The temperature of the blue flame constant and it is not possible to say that the flame which' comes out of the burner is a SUPERFLAME. In fact, it is the usual blue coloured flame and the blue colour of the flame depends upon the efficiency and the design of the burner. 105. In view of what is stated above, it is also not right to contend that flame is inter-linked with all cookers. There is no flame in case of electrically operated cookers/cooking ranges nor is there any flame in case of burning coke, as is known to everyone, burning coke gives a hot red glow as coke burns without a flame. 106. In the facts and circumstances of this case, it is useless to contend that the word SUPER is superlative to the word-Flame, also, for the reason that SUPERFLAME may refer to the length or width or both, of a flame and not necessarily to the heat generated by it when a pile of wood is burnt, the flame, though yellow coloured, wh....
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....s, is aware of the scientific fact that the blue coloured flame has the highest temperature and, therefore, for that reason is a SUPERFLAME. 111. Mr. Aggarwal contends that a gas cooker and flame are related and because of this relationship every gas cooker manufacturer is using the word FLAME to indicate a flaming gas cooker. There is no evidence as to why and how the word FLAME has become common, to the trade. The only evidence, which has been led by the Defendants, is that some gas cookers are sold bearing names like Silver Flame, Sun Flame, Royal Flame, Blue Flame, Steel Flame, Supreme Flame and also SUPERFLAME. 112. During the course of the arguments, I put it to the counsel that in fact, the first gas cooker with the gas burner that was made here was named "Planet". It was conceded by the Defendants and the counsel for the Defendants that it was so. It also cannot be disputed that there are gas cookers, which are being sold in the market, which do not have the word FLAME upon them. For example, gas cookers being sold with names like, Savloy, Nicky Tasha, Inalsa, etc., and there may be many others. In view of the existence of the gas cookers with names like Planet ....
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....to be noted that the Defendants' gas cookers/appliances have the word 'Hot Flame' on their front side, the same side as that on which the knobs for controlling the, flames are to be found. It is also clear that the words 'Hot Flame' are written up upon a label. This label is about 2" X 8" (approximately), and another label is 1" X 5" (Nutan Label) on which word Nutan is to be found. Thus, each gas cooker has affixed to it two labels, one large one, and one small one. The larger one denoting its name, and the smaller one denoting the name of the manufacturer. 118. In view of the fact that each of the cookers of the Defendants have got large size labels indicating its name, wherein the word SUPERFLAME does not occur, I would have thought that no claim to passing off of the gas stoves would arise. But a claim of passing off has been raised and needs-to be decided upon evidence. 119. It is interesting to read the deposition of the witnesses of the plaintiff. Much of the witnesses of the Plaintiff have specifically stated that if any customer of theirs asked for Blue Superflame then what he would be given by them would be a gas cooker/appliance ....
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....in an appeal on the interlocutory matter. But these observations reiterate what the law of passing off of goods has always been. 122. In view of the facts proved in the case, I am of the view that the Defendants' goods are not being passed off as goods of the Plaintiff by the Defendants. In this view of the matter, there is no need to consider the following judgments cited by counsel for the Defendants AIR 1955 Cal 591:AIR 1972 Delhi 179; 1978 RPC 397; 1964 RPC 47.; 123. The matter will not end here. What has further to be examined is whether the Defendants' use of the trading style Blue Superflame Industries is likely to pass off their business as the business of the plaintiff. 124. In order to decide this part of the issue, one has to keep in mind, what has been stated earlier, regarding SUPERFLAME. It has been held by me that SUPERFLAME is an invented, coined word; that it has no meaning in the English language, and it has been proved on evidence that the word SUPERFLAME is not common to the trade; and that in the trade and in the market place, where gas appliances are marketed, sold Superflame has been exclusively identified with the products of the plaintiff. SUPERF....
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....e same link having existed between the father of the Defendant 1 Defendant 2 herein, and plaintiff. I think that the observations of Lord Herschell in the case of Reddaway v. Banham (1896) 13 RPC 218 mentioned above, are fully applicable to this case. Lord Herschell in his judgment in that case has said that "he was unable to' see why a man should be allowed in this way to deceive purchaser into the belief that they are getting what they are not, and thus to filch the business of the rival". In my view, mentioning the meaningless word in A trading style by the Defendant is, only with a view to filch the business of the plaintiff. What is the effect of this? 127. With regard to this Mr. Aggarwal has two contentions to make. He says that if trading style contains descriptive words, then the same is not actionable, and for this proposition he relies upon 1946 RPC 39 Office Cleaning Service v. Westminster Window and General Cleaners. In that case, it was held that "When the name of the words consists of words descriptive of that business, and which have not acquired secondary meaning, a slight difference between the plaintiffs and the Defendants to the will, in the ....
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....;Navaratna' was common Indian language word, and Pharmacy and 'Pharmaceutical' were words added to Navaratna. It was held that this added matter was sufficient to distinguish the goods of the Plaintiff from the goods of the Defendants. A these words were descriptive words. 133. Another case relied upon by Mr. Aggarwal is (1907) 25 RPC 149 Electromobile Company v. British Electromobile Co. Ltd. In this case, what was objected to was the use of the word Electromobile in the trading style. It was held that the word Electromobile was a descriptive word, and also further it was found as a fact that the word 'Electromobile' had not acquired any secondary meaning or significance. In these circumstances, the relief sought by the plaintiffs was refused. 134. Mr. Aggarwal also relied upon (1915) 32 RPC 479 Universal Winding Co. v. George Hattersley & Sons. In that case, it was found that the word 'Universal' was a descriptive word and that being the case; the relief was not granted. The word considered in that case being the descriptive word, and the word under consideration in the instant case, not being a descriptive word, that case has no application to the p....
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....he part of its trading style is to filch' -- as stated by Lord Herschell in Reddaway case -- and to trade upon the name and reputation of the plaintiff, and in the facts of this case, and to retain the connection which existed between the Defendant No. 2 (or his proprietary concern) as a painting contractor of the Plaintiff and the plaintiff. 141. In view of my findings that SUPERFLAME is a new, invented, coined, fancy and meaningless word, the arguments of the Defendants about the prefixes and suffixes are of no consequence as the Defendants have failed to establish by cogent evidence that the word "FLAME" is common to the trade. It is also a matter of public knowledge, as is clear from advertisements, which are published for gas cookers, that there are manufacturers who do not use the word FLAME upon or in connection with their gas cookers. By way of example is PLANET, INALSA, SAVLOY, NIKY-TASHA etc. 142. Mr. N.K. Anand cited the judgment of this Court in MANU/DE/0174/1979MANU/DE/0174/1979 : AIR 1980 Delhi 254; Ellora Industries, Delhi v. Banarasi Dass Goela in support of his case for grant of injunction. In that case, what had happened, was that the Plaintiff was....