Delhi High Court
Borosil Glass Works Ltd. vs O.P. Batra And Anr. on 10 October, 1995
Equivalent citations: 61(1996)DLT414
Author: K. Ramamoorthy
Bench: K. Ramamoorthy
JUDGMENT K. Ramamoorthy, J.
(1) On 23.2.95 the plaint in the suit was presented praying for the following reliefs :- "(A)For permanent injunction restraining the defendant themselves, their servants, their dealers, stockists, agents, shopkeepers and all other persons on their behalf from using the trade mark Borosil in respect of Mixer-cum-grinder, Juicer, Food Processor and Washing Machine and other allied and cognate goods and thereby passing off and enabling others to pass off their goods as the goods of the plaintiff. (b) For permanent injunction restraining the defendants themselves, their servants, dealers, stockists, agents, shopkeepers and all other persons on their behalf from using of the trading style Borosil Appliances in respect of their business by manufacturing Mixer-cum-grinder, Juicer, Food Processor and washing machine or any other cognate and allied goods by passing their trading style as that of the plaintiff's trade mark and corporate name or by using of any other trade mark which is identical or deceptively similar with the trade mark Borosil of the plaintiff. (c) For delivery upon affidavit by the defendants to the plaintiff of the impugned trade mark Borosil and Borosil Appliances, plates, blocks, stationery, advertising and printing material for purposes of destruction and/or obliteration as the case may he. (d) For rendition of accounts into the profits earned by the defendant in respect of the sale of their goods under the trade mark Borosil as well as trading style Borosil Appliances during the last three years and for a decree of the amount so found due. (e) For costs of the suit."
(2) The case of the plaintiff briefly is as follows : The plaintiff has been carrying on business under the trade mark Borosil since 14th December, 1962. The mark is registered under the Trade Marks Act, 1958 in the following manner :- "Trade Mark No. Class Goods 427793 21 Small domestic utensils and containers (not of precious metals or coated there with) glass ware - porcelain and earthen ware not included in other closes. 427792 16 Paper and paper articles including filter paper. 427789 9 Scientific, electrical apparatus and instrument teaching apparatus. 427790 10 Surgical and Medical Instruments & apparatus. 427791 11 Installations and parts thereof for lighting, heating, steam generating and cooking."
The plaintiff claims exclusive right and according to the plaintiff the trade mark has acquired a very great name in the public and the plaintiff has given the sales figures which are as follows :- "Year Gross Sale Including Excise Duty (in Lakhs 1984 1463 1985 1474 1986 1669 1987 1429 1988-89 (15 months) 2309 1989-90 2322 1990-91 2472 1991-92 3112 1992-93 3629 1993-94 4095"
The plaintiff has also given the expenses incurred for advertising from the year 1997, which are as under :- "YEAR Advertising Expenses (Rs. LACS) 1987 14.60 1988-89 (15 months) 34.74 1989-90 27.31 1990-91 25.33 1992-93 55.37 1993-94 26.50"
It is stated by the plaintiff in paragraph 11 that the plaintiff is an expanding company and it is planning to enter cognate and consumer products in respect of various household utensils, electrical goods, Mixer-cum-grinder, thermoware, ovens etc. It is asserted by the plaintiff that the trade name Borosil and the corporate name Borosil in India as well as abroad denote the goods coming from the house of the plaintiff. The plaintiff in or about May 1992 came to know about the user of the trade mark by the defendants and on 28th May 1992 a notice was issued by M/s. Crawford Bayley & Co. to the defendants. There is no reply. On 4.4.94 another notice was issued calling upon the defendants to discontinue the trade mark Borosil in respect of kitchenware and other goods and also use of the name Borosil. By reply dated 27th April, 1994 the defendants admitted use of the trade mark Borosil in respect of Mixer-cum-grinder, Juicer and washing machine but the defendants gave justification for use of the name. By reply dated 11.6.94 the plaintiff wrote back to the defendants in answer to then letter dated 27.4.94. On 30.6.94 the defendants sent an undertaking which was not acceptable to the plaintiff as the defendants did not agree to stop the user of the trade mark BOROSIL. Again on 24th August, 1994 the plaintiff sent a reply informing the defendants that they shall not use the trade mark Borosil with respect to Mixer-cum-grinder, Juicer and Food Processor and washing machine. By letter dated 16.9.94 the defendants agreed to change the name of the company Borosil Appliances and they kept on using the trade name Borosil in respect of the Mixer-cum-grinder, Juicer, Food Processor and Washing Machine.
(3) The user of the trade mark by the defendant is not lawful and they arc purposely trading on the name of the plaintiff's trade mark. The goods sold by the plaintiff and the defendants belong to the same class and their use in the kitchens and, therefore, the general public would be greatly affected by the deceptive similarity which would effect the business of the plaintiff The defendants being a competitor of the plaintiff are fully aware of goodwill and the name of the trade mark Borosil of the plaintiff and the conduct of the defendants is deliberate and with main fide intentions they are passing off their goods as the goods of the plaintiff. The defendants have already made huge and illegal profits by using the name of the plaintiff. On these allegations, the plaintiff has come forward with the reliefs adverted to above.
(4) On 8th March, 1995 the defendants have filed the written statement contending inter-alia that the plaintiff is not a proprietor of the trade mark Borosil in respect of Mixers-cum-grinders, Juicers, Food Processors and Washing Machines falling in Class 7 of the Fourth Schedule of the Trade and Merchandise Marks Act, 1958, the plaintiff never used the trade mark Horosil in respect of the aforementioned goods and since April 1991 the defendants have been using the trade mark and after the ad-interim injunction, passed by this Court on 24.2.95 the defendants are not using the trade mark; the defendants have already applied for registration under Application No. 545313 and same is pending registration. The word Borosil is not an invented word and different companies have been using the trade mark Borosil and in particular the trade mark Borosil is being used by M/s. East end Pharmaceuticals Private Limited, 34 Industrial Colony, Naini, Allahabad (U.P.) in respect of soaps, perfumery, hair oil, cosmetics and toilet preparations and the said party applied for registration in Application No. 483917 and the same has been advertised in the Trade Mark Journal No. 1060 dated 1.8.1993 at page 395. The said party has also applied for registration under Application No. 373918 in respect of ointment in Class 5. The defendants denied the user of the trade mark by the plaintiff since December 1962 and the plaintiff cannot claim any exclusive right in the trade mark. It may be noticed that in the written statement no particular reason is given by the defendants as to how the defendants came to use this trade mark BOROSIL. The defendants have also stated that the plaintiff has known the defendants using the trade mark and has stood by it. At page 13A the defendants have given their sales figures, which are is under :- "YEAR Amount in Rs. 1991-92 59,905.00 1992-93 84,867.58 1993-94 2,37,578.84 1994-95 (up to 28.2.95) 4,42,308.00"
The plaintiff has filed the replication to the written statement traversing the allegations therein. I do not want to repeat the averments in the petition for injunction, the reply and the rejoinder.
(5) The plaintiff has filed documents showing the models of the plaintiff by way of photographs and the defendants have also produced few documents. The plaintiff claims that the defendants with a view to trading upon the plaintiff's reputation have adopted the mark which is identical to that of the plaintiff. The learned Counsel for the plaintiff referred to a number of cases. In the case of Joseph Rodgers & Sons Ltd. v. W.N. Rodgers & Co., (1924) 41 Rpc 277 Justice Rosser observed :- "IT is the law of this land that no man is entitled to any on its business in such a way as to represent that it is the business of another or is in any way connected with the business of another; that is the first proposition. The second proposition is that no man is entitled so to describe or mark his goods so as to represent that the goods are the goods, of another. To the first proposition there is, I must think an exception; a man, in my opinion, is entitled to carry on his business in his own name so long as he does not do anything more than to cause confusion with the business of another and so long as he does it honestly. To the second rule to which I have referred there is no exception at all; that is that a man is not entitled so to describe his goods has to lead to be belief that they are the goods of somebody else."
The law of our land is no different.
(6) Lord Morris opened his speech for the House of Lords in the case of Parker Knoll Limited v. Knoll International Limited, 1962 R.PC. 265 as under :- "IN the interests of fair trading and in the interests of all who may wish to buy or to sell goods the law recognises that certain limitations upon freedom of action are necessary desirable. In some situations the law has had to resolve what might at first appear to be conflicts between competing rights. In solving the problems which have arisen there has been no need to resort to any abstruse principles but rather, I think, to the straight forward principle that trending must not only be honest but must not even unintentionally be unfair. "
Lord Morris further observed :- "A name may be used as a mark under which a person's goods are sold so that the name comes to denote goods made by that person and not the goods made by anyone else or even made by anyone else who has the same name. So also a mark under which a person's goods are sold may come to denote goods made by that person. The name or the mark will have acquired a secondary meaning."
(7) In Daimler Benz Aktiege sellschaft v. Hybo Hindustan, , the word 'Benz' was used for selling under garments with the mark indicating Benz used and showing in the under garments. When the manufacturers of the Car Benz sued for injunction, the defense was that the manufacturers cannot make a grievance because the people who use the under garments are different and the persons who use the Benz cars belong to an elite of the population and, therefore, there was no scope for any confusion and there was no question of any passing off the goods. The case of the manufacturers was that the name Benz are the Star used to denote Benz Car and can never be used for any purpose whatsoever and the defendant was trying to cash in on the great reputation built by the worci 'Benz' over the years. Mahinder Narain, J. with great respect had dealt with the matter in a very beautiful manner and made a threshing observations :- "THERE are marks which are different from other marks. There are names which are different from other names. There are name's and marks which have become household words "Benz" as name of a Car would be known to every family that has ever used a quality car. The name "Benz" as applied to a car, has a unique place in the word. There is hardly the who is conscious of existence of the cars/automobiles, who would knot recognize the name "Benz" used in connection with cars. Nobody can plead in India, where "Mercedes Benz" cars are seen on roads, where "Mercedes" have collaborated with TATAs, where there are Mercedes Benz - Tata trucks have been on roads in very large number, (known as Mercedes Benz trucks, so long as the collaboration was there), who can plead that he is unaware of the word "Benz" as used with reference to car or trucks. In my view, the Trade Mark law is not intended to protect a person who deliberately sets out to take the benefit of somebody else's reputation with reference to goods, especially so when the reputation extends world wide. By no stretch of imagination can it be said that use for any length of time of the name "Benz" should be objected to."
The learned Judge further observed with respect rightly, as under :-- "In the instant case, "Benz" is A name given to a very high priced and extremely well engineered product. In my view, the defendant cannot dilute, that by user of the name "Benz" with respect to a product like underwears." In paragraph 21, the learned Judge granted the relief in the following terms:- "IN my view, it is but right that the defendant should be restrained from using the word "Benz" with reference to any underwear which is manufactured by them, and in my view, injunction should issue, restraining the defendant to cease and desist from carrying on trade in any undergarments in the name of "Benz" and "Three Pointed Human Being in a Ring", forthwith. So ordered."
(8) It was brought to my notice that the Division Bench of this Court stayed the operation of the order passed by Mahinder Narain, J. The Supreme Court by order dated 18.7.94 had restored the order of the learned Single Judge. Therefore, the decision reported in Daimler Benz Aktege sellschaft v. Hybo Hindustan, holds the field.
(9) In Rawal Industries (P) Ltd. v. Duke Enterprises & Others, 1975 Iplr 121 the plaintiff prayed for injunction against the defendants from using the offending trading style Duke Enterprises and the trade mark Duke in respect of insulated automobile cables and other automobile parts. According to the plaintiff, in that case the plaintiff had been using the mark for more than 9 years; that the business was being done to the tune of Rs. 10 to 11 lakhs and sales had been effected throughout India and also in foreign countries. Accord ing to the plaintiff, even State Governments used to purchase their automobile parts and also the defense Department of the Govt. of India besides many other manufacturers of Industrial Engines. At page 127 the learned Single Judge had draft with the Dunlop case in the following terms :- "IN Dunlop Pneumatic Tyre Co. Ltd. v. The Dunlop Lubricant Co., 16 R.P.C. 12, the plaintiffs objected to the use of the word 'Dunlop' with the objects of the defendant alleging that the use of the said word would injure them if not stopped. The defendant used the word 'Dunlop' with regard to his burning oil and his graphite which he sold. The plaintiffs were sellers of cycle accessories though as a matter of fact up to the tune of the litigation they had not sold burning oil or lubricant. Considering that they might do so, it was held that the plaintiffs were entitled to contend that a name substantially identical with theirs ought not to be allowed to be used by the defendant. The defendants were accordingly injuncted from doing business under the title comprising the word 'Dunlop' so as to induce the belief that the defendant Company was the same Company as the plaintiff Company or was in connection with them or that the business of the defendant company was the same or in any way connected with the business of the plaintiff company. (See also the Eastern Photographic Materials Co. Ltd. and Another V. The John Griffith Cycle Corporation Ltd. and Cycle Co. I td., 15 R.P.C. 105)."
At page 128 the learned Judge referred to the judgment of the Supreme Court in the following terms :- "IN Corn Pro ducts Refining Co. v. Shangrila Food Products, , it was observed that absolute identity of the two competing marks or their close resemblance was one of the tests for determining the question of likelihood of deception or confusion. The trade connection with different goods was another such test. It was observed that there was no reason why the test of trade connection between different goods should not apply where the competing marks closely resembled each other in view of the similarity of the two trade marks."
The learned Judge granted the injunction restraining the defendants from using the offending trading style Duke Enterprises and the trade mark Duke in respect of insulated automobiles cables and other automobile parts.
(10) In Kamal Trading Co. and Others v. Gillette U.K. Limited, 1988 Iplr 135, the Bombay High Court had occasion to deal with in a similar situation. There the plaintiff Gillette & Co. sought for an injunction restraining the defendants from manufacturing, selling, offering for sale or otherwise dealing in tooth brushes and the like goods bearing the trade mark 7 O'clock.
(11) While dealing with the respective contentions or the parties, the Division Bench referred to the decision of House of Lords Erven Wamink B.V. and Another v. Mis. 1. Town end & Sons (Hull) Ltd. and Another reported in 1980 Rpc 31. The House of Lords laid down that it is essential for the plaintiffs in a passing off action to show at least the following facts :- "(1)That his business consists of, or includes, soiling in England a class of goods to which the particular trade name applies; (2) That the class of goods is clearly defined, and that in the minds of the public, or a section of the public, in England, the trade name distinguished that class from other similar goods (3) That because of the reputation of the goods, there is goodwill attached to the name; (4) That he, the plaintiff, as a member of the class of those who sell the goods, is the owner of goodwill in England which is of substantial value; (5) That he has suffered, or is really likely to suffer substantial damage to his property in the goodwill by reason of the defendants selling goods which are falsely described by the trade name to which the goodwill is attached."
Ultimately, the Bench confirmed the order of injunction granted by the learned Single Judge.
(12) In Mis. Jugmils Electric & Radio Co. v. Mis. Telerad Private Ltd., Ilr 1978 (1) Delhi 667 the Division Bench of this Court considered I he order of the Assistant Registrar Trade Mark relating to the cancellation of the registration of the appellants' trade mark Telerad. The learned Judges dealt with the case on the materials produced by the parties before the Registrar. Therefore, for the purpose of coming to a prima fade case, the above decision is of no assisstance.
(13) In L.R.C. International Limited and Another v. Lula Edets Sales Company l.td., 1973 R.r C. 560 the learned Judge Whit ford, Chancery Division dealt with a case of passing off. The facts are set out in the head note and I need not refer to them in detail:-- "IN a passing off action the second plaintiff was a trading company which sold under the mark "Marigold" household gloves and plastic parts for babies. The first plaintiff was a holding company, which also owned certain registered trade marks consisting of the word "Marigold". The plaintiffs sought an interlocutory injunction to restrain passing off by the sale of toilet tissues under the mark "Marigold", the mark being represented in a similar form to that used by the plaintiffs. Apart from a general complaint relating to the undoubted confusion which the plaintiffs stated would arise if the defendants were not restrained, the plaintiffs also stated that it was their intention to extend the field of their activities and that: they had under actual consideration a proposal to extend their .sales to include nappy liners and disposable nappies, which might be made of paper, tissue non-woven fibre, and bin liners. The defendants objected that what the plaintiffs were really seeking to do was to secure a monopoly in the word "Marigold". Held, that the defendants were entitled to raise the question as to how far beyond their own specific field of activities the plaintiffs were entitled to extend the area within which they ought to be given protection. However, on the admitted reputation of the plaintiffs in their i)wn particular field, and on a consideration of the nature of the goods in which the defendants were dealing, and the nature of the goods in which the plaintiffs were dealing and proposed to deal, it would be right for an injunction to be granted."
(14) In Bajaj Electricals Limited, Bombay v. Metals & Allied Products, Bombay and Another, a Division Bench of the Bombay High Court had occasion to deal with a case where the defendant carried on business using the name of Bajaj of the reputed Bajaj Electricals. The plaintiff prayed for an injunction restraining the defendant from in any manner using in relation to domestic appliances and kitchen utensils and appliances and wares using the mark Bajaj or any other mark deceptively similar to the plaintiff's registered mark. After considering all the facts, the Division Bench reversing the judgment of the learned Single Judge granted injunction restraining the defendant from in any manner using the mark Bajaj.
(15) In Tata iron & Steel Co. Ltd. v. Mahavir Steels & Others, the plaintiff Tata Iron & Steel Co. Ltd sought for an injunction restraining the defendant from selling or offering for sale and from using in any manner whatsoever the trade mark Tisco or FISCO. At page 417 the learned Single judge discussed the matter, with great respect, in a very interesting fashion and the same is relevant and runs as follows :- "THE next question is whether the defendants should be allowed to use trade mark 'FISCO' at this stage in relation to channels which are being manufactured by it. 'TISCO' and 'FISCO' a re, prima fade, too close phonetically. The plaintiff has been carrying on its business under the trade name TISCO' for a period of 80 years. The trade mark is registered in favor of the plaintiff. It is the owner and proprietor of the said trade mark. The difendants' trade name is deceptively similar to the plaintiff's trade mark. Learned Counsel for the defendants, however, submitted that the trademark of the plaintiff is different from the trade mark of the defendants. He submitted that the most important letter in the mark employed by the defendants is "F" which distinguishes the trade mark of the defendants from that of the plaintiff. I am afraid I can not accept the submission of the learned Counsel for the defendants. As is self evident, there is a very little difference between the trade marks 'FISCO' and 'TISCO'. In a dispute, like the present one although the Court is primarily concerned with the rights and obligations of the parties before it nevertheless the Court is also required to protect the interests of the nameless and face less consumers. The Court has to view the affect of a trade mark on the buyer. The purchaser can be easily misled by phonetic similarity of trade marks. Aping of Trade mark cannot be allowed as it confuses and deceives the consumer. It, prima facie, seems to me that defendants 2 to 5 by use of the trade name Fisco have infringed the registered trade mark of the plaintiff. Even a literate purchaser can be taken in by the offending trademark and can be led to believe that he is buying the product of the plaintiff when actually he would be purchasing the product of the defendants. There is also no denying that large number of people in our country are illiterate who can be the victims of imitation. Fake easily passes as real. Learned Counsel for the defendants failed to give any explanation as to why the defendants were using the suffix TSCO' with letter "F". On the other hand in the plaint it has been explained as to why the plaintiff was using TISCO' as its trade mark. A look at the name of the defendant No. 2, which is Ispat Udyog shows that it bears no similarity, proximity, affinity and resemblance with the trade name of its product. In these circumstances can it be a honest use of the trade mark Fisco by the defendants? Can it be said that there is an innocent or accidental resemblance between the trade mark of the defendant No. 2 with that of the plaintiff and the former has not deceptively copied the trade mark of the latter in its essential features, namely, TSCO'. Defendants have given no explanation on these questions. Their pleadings say nothing except citing the example of few others who are also similarly using trade names having suffix TSCO' in conjunction with one letter prefix in connection with their goods. An imitation remains an imitation whether it is done by one or by many. It acquires no legitimacy. A wrong is not righted by the following it musters. Infringement of trade mark by a trader cannot be justified on the ground that there are others like him who are doing the same. There is a growing tendency to copy the trade marks to cash upon some one else's business reputation. The pirates of trade marks are like parasites clinging to others for their growth. Imitators of trade marks have the sole object of diverting the business of others. The tendency must be curbed in the interest of the trade' and the consumers."
The learned Single Judge while considering the matter has referred to the following cases:-- 1.Essco Sanitations, Delhi v. Mascot industries (India), Delhi, AL' 982 Delhi 308. 2. Amritdhara Phannacy v. Satya Deo Gupta. . 3. K.P. Chinna Krishna Chettiar v. Sri Ambala & Co. Another, . 4. The Coca Cola Co. of Canada, LD. v. Pepsi Cola Co. of Canada, Ld, 1945, (59) R.P.C. 127. 5. F. Hoffmann-LA Race and Co. Ltd. v. Gcoffrey Manners and Co. Private Ltd., .
(16) In Glaxo Operations Uk Ltd., Middlesex (England), and Others v. Samrata Pharmaceuticals, Kanpur, the learned Single Jude of this Court considered the claim of the plaintiff and the learned Judge found on facts that the defendant had used the mark of the plaintiffs and, therefore, granted injunction.
(17) The learned Counsel for the plaintiff referred to the decision in In the Matter of an Application by R. Parkington and Coy. Ltd. And In the matter of an Opposition thereto by Frederick Robinson, LD., 63 R.P.C 171. This is also a case where matter was considered on evidence. Therefore, I do not want to deal with it in detail.
(18) In Mis. Hindustan Pencils Pvt. Ltd. v. Mis. India Stationery Products Co. and Another, ; Kirpal, J (As His Lordship then was) considered the use of the mark Natraj by the defendants, the mark belonging to the plaintiff. The learned Judge found on a prima facie consideration of the material that the mark used by the defendant is similar and there is a clear breach of the plaintiff's right under Section 20 of the Trade Marks Act, 1958. The learned Judge granted injunction restraining the defendant from using the defendant offending mark Natraj, which is an infringement on the plaintiff's registered trade mark.
(19) The learned Counsel for the plaintiff also referred to the decision of the Supreme Court in Mis. Power Control Appliances & Others v. M/s. Sumeet Machines Pvt. Ltd., . The facts of the judgment of the Supreme Court are different and the decision is not of any assistance in this case.
(20) The learned Counsel for the plaintiff referred to the decision of the Chancery Division reported in Lego System Aktieselskab and Another v. Lego M. Lemelstrich Ltd., 1983 Fleet Street Reports 155. This is also a case where the matter was dealt with after full trial and I do not want to refer to it at all as the ratio laid down therein has no bearing on the issue in this casr.
(21) The learned Counsel for the defendants referred to Nestle's Products Ltd. and Others v. Mis. Milk made Corporation and Another, . The facts of the case are entirely different and that case does not help the defendants in any way.
(22) In my view, the defendants are not carrying on their trade in the name of Borosil but using the mark to sell their goods taking advantage of the reputation of the plaintiff. From a perusal of the documents and the correspondence one would get the impress ion that the intention on the part of the defi.-ndants to deceive, is very apparent and clear.
(23) The contention of the learned Counsel for the defendants is that the goods manufactured by the plaintiff and the defendants are different and hence the apprehension of the plaintiff that the use of the mark Borosil by the defendants is likely to cause confusion in the minds of the buyers is unfounded is not acceptable. The articles manufactured by the plaintiff and the defendants are kitchen wares and are generally and commonly used by every family having a meagre income and, in particular, by families where both the husband and wife arc employed. I am unable to resist the conclusion that the defendants are intentionally and dishonestly are trying to pass off their goods by the use of the name Borosil. It is also patent from the facts that user of the name by the defendants is a calculated attempt to lull a buyer into an impression that the article sold was that of the plaintiff. A buyer not very much alert and intelligent would be guided by the word 'Borosil' and what would attract him immediately is the word Borosil and eves would be glued only to the word Borosil. Following the Supreme Court this Court posited in Mis. Atlas Cycle Industries Ltd. v .Ceylon Cycles Ltd., I.L.R. 1973 (1) Delhi 398 in the following terms:-- "IN an action for passing off the test for deceptively -Similarity i.e. as to the likelihood of confusion or deceptively raising very similarity of the marks is practically the same as in an action for infringement except that it has to be seen whether the defendant's are get up, talking etc. of his goods as besides the essential features of the plaintiff's mark or goods any additional features which distinguishes it from the plaintiff's mark or goods."
(24) In the instant case before me, there is some difference in the shade of the colours and the get up showing in the advertisements but the word Borosil used as the trade mark is the same as used by the plaintiff and the word Borosil is seen strikingly similar and strongly pronounced and the likelihood of a buyer of an average intelligence and imperfect memory or recollection being misled easily be assumed. As pointed out by the Bombay High Court in 1988 Iplr 135 (supra) the defendants are entitled to explain how the mark was invented by them. At this juncture, the observation by the Court in 63 Rpc 171 (supra) at page 181 is relevant and the same is as follows :- "BEFORE doing so, however, I should, I think, say that in my judgment the circumstances which attend the adoption of a trade mark in the first instance are of considerable importance when one comes to consider whether the use of that mark has or has not been a honest user. If the user in its inception was tainted it would be difficult in most cases to purify it subsequently."
(25) The balance of convenience is in favor of the plaintiff. Damages cannot be an adequate remedy for the plaintiff. The defendants are not prevented from selling their products in any other trade name but they are injuncted from using the name Borosil. In my view, the defendants cannot be permitted to use trade mark Borosil. Therefore, pending the suit injunction is granted restraining the defendant by themselves, their servants, agents, dealers, shopkeepers, representatives, stockists and all other persons acting for and on their behalf from manufacturing and selling the Mixer-cum-grinder, Juicer, Food Processors and Wash ing Machine and all other allied and cognate goods bearing the trade mark Borosi I as well as from using the mark Borosil in respect of their trade name/trading style thereby passing off their goods as the goods of the plaintiffs or from using the said trade name which is identical or deceptively similar with the trade marl- and trade name of the plaintiff. 1.A. 1690/95 is allowed. Consequently, IAs. 2303/95 and 4967/95, filed by the defendants under Order 39 Rule 4 Civil Procedure Code ., are dismissed There shall be no order as to costs.