M/S. Helpage India vs M/S. Helpage Garhwal
2001 Latest Caselaw 806 Del

ORDER

K.S. Gupta, J.

1. This order will govern the disposal of I.A.10583/98 field under Order 39 Rules 1 & 2 read with section 151 CPC by the plaintiff and I.A.3977/99 filed under Order 39 Rule 4 read with section 151 CPC by the defendant for vacation of the order dated 30th November 1998.

2. Suit was filed by the plaintiff, interalia, alleging that it is a non-Government organisation founded in the year 1978. Plaintiff organisation extends services to the elderly people throughout India by providing consultancy, training and financial support through 531 voluntary agencies. These voluntary agencies have taken up the cause of aged persons through 1400 service projects. Plaintiff organisation has provided financial grants of over Rs.100 crores to these agencies. It is further alleged that the name of plaintiff organisation was conceived and adopted in 1978 and on account of long, extensive and continuous user thereof the name has achieved a reputation in India as also broad. Plaintiff's application for registration of trade mark `Helpage India' in Class 16 in respect of paper articles, cardboard articles, printed matter, newspaper, periodicals, books, greeting cards, calendars and gift items etc is pending for registration of trade mark. It is alleged that the defendant - Helpage Garhwal operating from 512 T, Wazir Nagar, Bishampitamaha Marge,New Delhi, is a Society registered in Delhi under the Societies Registration Act, 1860. The defendant claims that it is running social services as that of the plaintiff. It is stated that defendant has no right to use as part of its name - `Helpage' which is likely to create confusion and / or deception in the minds of people helping the plaintiff organisation. Adoption of said part of the name by defendant is a deliberate attempt to pass off its services as that of the plaintiff. It was prayed that by a decree of permanent injunction the defendant be restrained from using `Helpage' as part of its name. Decrees of delivery of infringing materials and rendition of accounts for the last 3 years, have also been claimed.

3. Along with suit aforesaid I.A 10583/98 on the averments similar to those made in the plaint, was filed by the plaintiff and by the order dated 30th November 1998 the defendant was restrained from using `Helpage' as part of its name and this interim injunction continues to operate till date.

4. Defendant contested the suit by filing reply. It is alleged that answering defendant was duly registered on 23rd July 1993 under the Societies Registration Act vide Registration certificate No.S/24575. It is a social and welfare organisation and was set p for the purpose of helping Garhwali people who are downtrodden, have become victims of any disaster or evil / diseases and it is not carrying any business or trade. It is further alleged that answering defendant raises funds through souvenirs, donations, subscriptions, advertising etc. In Para 13 of written statement, the details of income for the period 1993-94 to 1998-99 have been disclosed. Sum of Rs.69.576/- is the highest amount which was collected in the year 1997-99. For want of knowledge, it is denied as to when the plaintiff organisation was set up, what are its objects and how much funds were raised by it since 1978 onwards. It is alleged that if plaintiff had any objection to the use of word `Helpage' as part of name of answering defendant it should have field objections with the Registrar of Societies which it has not chosen to do. It is emphatically denied that use in the name of the said part by answering defendant is likely to cause any confusion in the minds of people helping the plaintiff organisation in India or aborad, as alleged. It is also denied that answering defendant had opted `Helpage' as part of its name in an attempt to deliberately pass off its services as the services of plaintiff organisation as alleged.

5. Said I.A. 3977/99 was filed by the defendant on grounds similar to those taken in written statement for vacating the order dated 30th November 1998 passed inI.A.10583/98.

6. I have heard Sh.Manmohan Singh for planitff and sh.G.B.Tulsinain for defendant.

7. Submissions advanced on behalf o defendant were that since defendant is a welfare organisation carrying no trading activity the relief prayed for in said I.A.10583/98 cannot be granted under the tort of passing off; the plaintiff cannot claim monopoly in relation to word - `Helpage' which is descriptive in nature; part of the defendant's name `helpage' is not likely to create confusion and / or deception in the minds of people helping the plaintiff organisation in India or aborad.I propose to take up these submissions one by one.

8. In the commentary of `Law of Trade Marks and Passing off' (Firth Edition)by P.Narayannan at page 499 under the heading `Charitable societies' it is observed thus:-

"The tort of passing off is sufficiently wide to give relief to charities engaged in trading type activities.

In British Diabetic Association V.Diabetic Society (1996) FSR 1, both the parties were charitable societies. Their names were deceptively similar. The words `Association' and `society'were too close since they were similar in derivation and meaning and were not wholly dissimilar in form. Permanent in junction granted."

9. In the decision in M/s.Regency Industries Ltd vs.M/s.Kesar Builders, Vol.X 1990PTC 1, it was held that passing off action need not necessarily be associated with gods only. Taking note of the said observations and ratio in this decision the part of argument that relief prayed for in aforesaid I.A 10583/98 cannot be legally granted under the tort of passing off, the defendant organisation carrying no trade activity, deserves to be repelled being without merit.

10. Coming to the submission that plaintiff cannot claim monopoly in relation to word `Helpage' it being descriptive in nature, it may be noticed that it is not denied by the defendant the plaintiff organisation which was founded in 1978, is providing consultancy, training and financial support to 531 voluntary agencies who is turn have been running 1400 service projects and financial grants of over Rs.100 crores has been provided to these projects by the plaintiff. Plaintiff has placed on record literature which reflects the nature of activities being carried by the voluntary organisations through service projects. Plaintiff alleges that `Helpage' was coined by it in 1978 and this word has nexus to its aims and objects. The defendant was registered after more than 14 years of the founding of the plaintiff organisation. In this backdrop, there is considerable merit in the contention advanced on behalf of plaintiff that said word `Helpage' has prima facie become synonymous with the plaintiff organisation only and plaintiff can claim monopoly over the use thereof to the exclusion of others. Decision in Online India Capital Co. Pvt. Ltd & Anr vs.Dimensions Corporate, 2000 PTC 396 relied on behalf of defendant has no applicability to the facts of the present case.

11. This brings me to the last limb of submission referred to above advanced on behalf of defendant. `Helpage' is the key word of the names of parties to the suit. Both the parties are welfare organisations though the filed of activity of defendant is not solely confined to aged persons. Indisputable, plaintiff organisation came to be founded more than 14 years before the defendant was registered under the Societies Registration Act. Considering these facts conjointly, in my view, use of the word `Helpage' by defendant as part of its name is bound to create confusion and / or deception in the minds of people that defendant organisation has some connection with the plaintiff organisation. Registration of the name of defendant under the Societies Registration Act cannot come in the way of this court in granting the relief prayed for. In case the defendant is allowed to use `Helpage' as part of its name it will cause irreparable unjury to the plaintiff organisation in whose favor balance of convenience, obviously,lies. Thus, aforesaid I.A. 10583/98 deserves to be allowed while I.A.3977 /99 dismissed.

12. Consequently, I.A. 10583/98 is allowed while I.A. 3977/99 is dismissed. Order dated 30th November 1998 is made absolute.