Malhotra Tyres Service Co. vs Malhotra Tyres Pvt. Ltd.
1990 Latest Caselaw 370 Del

JUDGMENT

P.K. Bahri, J.

(1) The plaintiff has instituted this suit seeking permanent injunction restraining the defendant and its agents and servants from carrying on or offering to carry on or advertising the business of automotive tyres and tubes, vulcanizing rubber and robber parts including tyre re treading material and parts 'and fittings for use in motor land vehicles under the description "Malhotra Tyres Private Limited" or any description embodying the words "Malhotra Tyres" or any other trade name identical or deceptively similar to the plaintiff's trade name. The plaintiff has filed the present application seeking interim injunction till .the disposal of the suit to the similar effect.

(2) The case set out by the plaintiff in brief is teat the plaintiff is a duly registered partnership firm and was established in the year 1956 and has beenengagedintbei.,businessof manufacturing automotive tyres and tubes, vulcanising rubber and rubber parts including tyre re treading material and parts and fittings for use in motor land vehicles. The plaintiff claims to be the proprietor of the trade name "Malhotra Tyres Service Company" and most distinctive words appearing in the said trade name are "Malhotra Tyres" and the said trade name has become distinctive and associated with the goods of the plaintiff. The plaintiff has built up a valuable trade and has earned a lot of goodwill in connection with its business by using the aforesaid trade name since 1956. The plaintiff had advertised the said trade name through leading newspapers and trade magazines etc. and had spent substantial amount on such publicity. The plaintiff had filed an application., for converting itself into a company but the same was rejected as it was found that the defendant M/s Malhotra Tyres Private Ltd. stood already incorporated. It is alleged that the defendant bad started its business in the early months of 1988 and bad . adopted similar trade name as that of the plaintiff and is marketing its good which under the said trade name could deceive the customers in believing that the goods being marketed by the defendant are those of the plaintiff and thus the defendant is guilty of passing off its business as that of the plaintiff.

(3) The defendant, however, controverts the pleas of the plaintiff and has pleaded that infact the plaintiff has not acquired any proprietorship in the trade name 'Malhotra Tyres' and infact the plaintiff has not been manufacturing or dealing in sale of tyres and tubes whereas the defendant company has been manufacturing and selling tyres and tubes under the trade name 'Malhotra Tyres' since 1970. It was mentioned that Amar Nath Malhotra who is the promoter and Managing Director of the defendant company is also sole proprietor of M/s Malhotra & Sons and one M/s Malhotra Rubber (P) Limited which claims to have acquired certain rights from the plaintiff had filed a suit No. 1955/88 against M/s Malhotra & Sons in which dispute is raised with regard to the trade name 'Malhotra' with regard to manufacture and sale of tyres and tubes and the plaintiff has brought this suit taking false pleas that it has been manufacturing or selling tyres and tubes while infact the plaintiff is not in the aforesaid business at all and the plaintiff is dealing only in re treading of the tyres and tubes and has not acquired any reputation in respect of the services being rendered by it and it was controverter that the plaintiff had advertised the aforesaid trade name in any newspaper or magazine.

(4) In order to obtain the temporary injunction, the plaintiff has to prove that he disputed name or mark has become distinctive of the plaintiff goods so that the use of the said name or mark in relation to the goods is regarded by a substantial number of members of the public or trade as coming from the plaintiff and the defendant's use of the said trade mark was likely or calculated to deceive and cause confusion and injury actual or probable to the goodwill of the plaintiff's business.

(5) The plaintiff has filed a number of documents mostly the bills and vouchers which relate to the years 1955 onwards. Most of these vouchers and bills only show that the plaintiff company is working as Quality Retreaders & Vulcanizers and these Mils pertain to the said work of the plaintiff. The later bills show that the plaintiff is now described as 'Manufacturers of Quality Sectional Curing & Steam Bags'. Not even a single document has been produced to show that the plaintiff is manufacturing or culling tyres and tubes. No copies of any newspaper or magazine has been filed showing that the plaintiff bad ever advertised the aforesaid trade name. it is useful to refer to M/s J. & P. Coats Ltd. v. M/s Chadha & Co , in order to know as to what has to be established by the plaintiff in an action for passing off. It was laid down by the Division Bench of this Court that an action for, passing off is a common law remedy being in substance an action for deceit, i.e., passing off by a person of his own goods as those of another. In Khemrai Shrikishandasi v. Mfs Garg & Co. Air 1975 Delhi 1930, a single Judge of this Court has laid down that for bringing an action for passing off, the plaintiff has to establish the distinctive features, substantial user and wide reputation. It is true that in passing off action, an actual deception is not required to be proved but reasonable ground for apprehending deception must exist. In Ranjit Singh v. Jaswant Singh, , it was observed that where the. dame of one particular individual or firm has gained universal reputation in connection with a particular class of goods and a second person enters the trade under a name which is the same or similar and which is likely to cause confusion in the minds of the intending purchasers and the harm thus caused is prima facie such as no .compensation would be enough counter-balance it, the Court can restrain that person from trading under a name which is similar by granting injunction. In Teju Singh v. Shanta Devi, , it was laid down that the plaintiff has to prove that the name bag acquired a distinctive meaning in connection with his business so that use of this name by another is likely to deceive the, public. Similar principles have been laid down by a single Judge of this Court in Mfs Hindustan Radiators Co. v. Mil Hindustan Radiators Ltd, 1987 Ptc 73 and in Surjeet Book Depot v. Surjeet Book Depot (P) Ltd.. 1982 Ptc 297.

(6) In the present case the plaintiff had only made a bald assertion in the plaint that it has been doing substantial business and has quoted certain figures for the years 1967 to 86 but nothing has been placed on the record in support of these facts The bills and vouchers produced by the plaintiff only show that the plaintiff 'has been parrying on the business of re treading, tyres etc. and there is nothing on the .record to show prima facie that the plaintiff bad at any time manufactured or sold tyres and Tubes. So it cannot be said that the plaintiff has acquired any proprietorship io the trade name 'Malhotra Tyres' in respect of its business or it has built up any goodwill or reputation so that any other person dealing in the same type of business under the said trade mark would be guilty' of passing off his goods as the goods of the plaintiff. So in my view, the plaintiff has not been able to establish prima facie case in his favor so that a temporary injunction could be granted as prayed for by the plaintiff. I dismiss the application.